- NORMAN GRINDLEY/DEPUTY CHIEF PHOTOGRAPHER
A crowd at the scene where a taxi driver was found dead at Calvary Cemetery in St. Andrew in July.
Donovan Jackson, Contributor
JAMAICANS FRIGHTENED, angry and confused at the appalling level of murder in the society have, in the overwhelming majority, consistently called for the immediate deployment of the hangman.
'Dem fe heng', 'heng dem' and 'pop dem neck' is the daily refrain as they look to Government, puzzled by the seeming lack of response from that usually responsive quarter.
The last execution of a murder convict in Jamaica took place 17 years ago in 1988. Discouraged with a moribund court process overburdened with cases and a lack of resources, vigilante killing has taken on a new lease on life and is on the up.
There is little point in arguing with these views as eyes are by this stage, glazed over and all logic and rational thought has long gone with the wind.
No problem finding a hangman, there are many pro bono volunteers in waiting among the vigilantes. The simple reality is that the hanging debate, if it can be called that, has in this jurisdiction, been informed more by emotion than by rational thought, research and consideration.
DEATH PENALTY UNPOPULAR
Over half the countries in the world have now abolished the death penalty in fact, or in practice, and this has consistently increased over the years.
Against the international trend, executions of convicted murderers have actually increased in the English-speaking Caribbean, and in Jamaica, in particular, the threat and calls to bring back the hangman is deafening and the populist sentiment at all levels of society by any measure.
Guyana, Trinidad and Tobago, the Bahamas, St. Kitts Nevis and St. Vincent and the Grenadines have all carried out executions in the last decade.
Jamaica and other Caribbean states continue to impose the death sentence in Court, but have not managed to carry out the sentences imposed for various reasons.
These are largely related to real or perceived difficulties, created by a series of court decisions and an inability or unwillingness to meet the timelines and conditions imposed for the processes of appeals to be completed.
Against the worldwide trend away from capital punishment, the last superpower, the United States stands out.
President George W. Bush (then as Governor Bush of Texas), when asked to grant clemency to Karla Faye Tucker, a woman who had been convicted of murder for killing two people with a pickaxe as they lay helplessly in bed, on the ground that she was genuinely remorseful for her crime, refused to grant clemency.
Tucker is said to have undergone a genuine, life-changing religious conversion and, for 14 years, had been a model prisoner. Commenting on the bright side, Bush noted that she will get to be with her Lord.
Bush, during his six years as governor of Texas presided over 152 executions, more than any other governor in the recent history of the U.S. They, however, do not have to look to anyone and hardly seem to notice the abolitionist.
A disproportionate number of those executed in the U.S, however, are poor black men and the advent of DNA has actually led to the release of in excess of 100 wrongly convicted of serious crimes!
GOVERNMENT IS NO GEORGE BUSH
The Jamaican Government, unlike Bush, feels impotent to carry out the wishes of the masses and accuses the Judicial Committee of the Privy Counsel (JCPC) of making it difficult if not impossible for them to hang.
The Hon. A.J Nicholson has in fact made a good case in this regard and he does have a point.
I will concede that he is probably right with respect to the majority abolitionist trend in that tribunal. Indeed, the trend away from capital punishment seems to have its greatest support and leverage in Europe.
So much so that an European Union country cannot extradite a person to a country with whom it has extradition treaty obligations, if there is a prospect of the death penalty being imposed on the person whose extradition is sought.
Many political leaders on both sides of the fence in our jurisdiction, however, are privately against hanging, knowing in their 'heart of hearts', that it is flawed and unlikely to do anything to lessen the prevalence of violent crime.
Many, however, dare not express their true opinion, lest they be perceived as being soft on crime. Unfortunately, our politics has largely been about appearances to the unenlightened majority.
Those who through no fault of their own have never had the benefit of a good basic education and the opportunities that go with that and those who (while they may have had the benefit of some education), have brains which have atrophied by reason of the lack of use.
The Most Hon. P J Patterson told an Amnesty International delegation that he had voted against capital punishment in 1979 and hoped to see a time when Jamaica would not have the death penalty.
Former PM Ingraham of the Bahamas had similar views. The Hon A. J. Nicholson has reservations about capital punishment and to his credit, has said so publicly. He is not a man shy about expressing his opinion.
Delroy Chuck has written a book on the matter of sentencing and examined the arguments and he has reservations about capital punishment and has also said so publicly.
The matter actually went to a conscience vote in Parliament in 1979 which from my recollection was somewhat inconclusive as many abstained or conveniently absented themselves from Parliament.
GOOD SENSE
But instead of good sense and an informed debate, exactly the opposite has occurred. Members of the public are often encouraged by the commentators and politicians to equate opposition to the death penalty or support for human rights, with being supportive of violent criminals. What rubbish!
The reality is that the five year time line imposed by Pratt and Morgan is not completely unreasonable and could have been dealt with in the over 10 years since that decision, by putting more resources into the matters to speed up the appeal processes. Transcripts can be ready in days and appeals can be heard expeditiously if they have to be heard.
Trinidad managed to execute nine persons in 1999 (the entire notorious Dole Chadee gang)!
After we have hung a few dozen and the murder rates keep climbing as did our gun crimes over the decades after the Gun Court Act and the Suppression of Crimes Act were put in place, perhaps we will understand the folly of this focus on hanging as offering any solution to our crime problem.
In my humble view, it represents a short sighted, ignorant, knee jerk response to solving a problem which has far more fundamental roots in this society and is therefore bound to have little or no impact apart from the possible gratification offered by retribution.
The fact is that extrajudicial killings and the constant daily carnage of ghetto youth have not dented the murder rate as the factory producing them is at work 24 seven.
Whatever my views, it seems the Government has an obligation to do whatever is necessary to provide certainty in this area, to deal with and meet the restrictions imposed by the moving goalposts created by decisions from the JCPC over the last decade or so, including but not limited to the following:
The Pratt and Morgan decision: In any execution taking place more than five years after sentencing, there would be a 'strong presumption' that the delay amounted to inhuman and degrading punishment or inhuman treatment contrary to the Jamaican constitution, which would result in the commutation of the sentence to life imprisonment.
With the onus of ensuring the avoidance in delay being on the state, we should note that there is a trend to shorten the time line. In Guerra v. Baptiste (Trinidad), a delay of four years and 10 months had the same effect as Pratt and Morgan. In Henfield v A.G. Bahamas, an overall period of delay of three years following the sentence of death, aided by the fact that there was no right of petition to the U.N. Human Rights Committee from the Bahamas as was the case in Jamaica, was sufficient;
The difficulty created by the mandatory death sentence provision under the Offences Against The Person Act 1864 and the Lambert Watson decision in relation to same.
In that case it was held that the mandatory imposition of the death penalty violated the applicant's constitutional protection against cruel, inhuman, or degrading treatment as it deprived him of the opportunity to show why the sentence of death should not be passed on him on the basis of the facts of the case and his personal background and circumstances; and
The Neville Lewis decision, which entitled convicted murderers to put material before the Governor-General's Privy Council when the prerogative of mercy was being considered.
These deliberations could be subjected to judicial review although the issue of mercy had hitherto been thought to begin 'where legal rights end'.
It seems to me that when you get down to 'brass tacks', the practical reality is that some constitutional amendments will have to be done in Jamaica if we are ever to execute to meet the clamouring from the budding vigilantes among us.
This was done in Barbados in response to the earlier decisions leading to the Lambert Watson case. Their amendment dealt with the imposition of a mandatory sentence of death, as well as any delay in executing a sentence of death, by providing that same will not be considered inconsistent with or in contravention of the prohibition on inhuman treatment already found in their constitution.
What is ironic is that Barbados has dealt with the issue when they do not have a crime problem of the dimensions of Jamaica's and have not had an execution since 1984!
If nothing else, this might force a proper debate and decision as opposition support would be required for the bill to pass unless the bill was supported by a referendum. Not that again!
But can we at least have an informed sensible debate? I have my doubts, but hope springs eternal.
