There has been much ado about the death penalty in recent days — or at least, much has been said. Minister Robert Montague wants hanging to be resumed, while Opposition spokespersons Mark Golding and Peter Bunting have voiced their reservations.

Various letter writers and cartoonists have also presented their opinions, with one letter advocating, in addition to the return of the hangman’s noose, reversion to flogging — “six to twelve lashes on the buttocks” for various offences.

So, where have we reached with our death penalty debate in Jamaica, and what does the law have to say on the subject?

MURDER RATE

The main argument for the death penalty in Jamaica turns on the country’s high murder rate. Pro-death penalty sentiment runs strongest when there are high-profile murder cases and where there is a spike in heinous crimes — as is currently the case. But, bearing in mind that Jamaica’s murder rate is invariably at a frightening level, many people argue that the society needs an effective deterrent; they see capital punishment as that deterrent, or hope that it can be.

There is also a majoritarian argument in support of the death penalty. True, there is substantial opposition to the sentence among the intelligentsia, and in some church communities, but most Jamaicans still wonder why the sentence is not carried out, given the rampant and callous disregard for life that is daily in evidence. The majoritarian perspective has no doubt influenced some parliamentarians who voted in 2008 to retain capital punishment. In a democratic polity which, by definition, attaches some importance to the majority will, the parliamentary response is not surprising. If parliamentarians openly defy the popular view on the highly charged matter of the death penalty, this could have obvious electoral consequences.

POLITICIANS

But this is not to suggest that the politicians are simply looking over their shoulders at the majority will, though some may well be. In the 2008 parliamentary vote in the House of Representatives, 34 members voted for retention of capital punishment, while 15 were against it; in the Senate, the division was 10 to 7, with the majority in favour. In 1979, when an earlier conscience vote was taken, 24 members opted to retain hanging, as against 19 who opposed it.

This breakdown suggests that, as far as the ultimate sanction is concerned, not all parliamentarians regard the popular will as decisive. Nor should it be; the majority will may be a factor in the decision, but it cannot be the only consideration. Our parliamentarians have a duty to consider all the arguments before reaching their conclusion.

REVULSION

In this context, there are at least two additional arguments that are appealing to some Jamaicans. One is that the death penalty serves to register the society’s sense of revulsion to murder. Within this perspective, punishment must reflect not only deterrence and the prospect of rehabilitation, it must also emphasise that society rejects murder, and is determined to fight it with decisive measures. This view — sometimes associated with Lord Denning, among others — is offered partly in response to abolitionists who maintain that the death penalty is not a deterrent.

THE BIBLE

Secondly, it is fair to suggest that many Jamaicans continue to support the death penalty by reference to biblical assertions. Specifically, reference is often made to Mosaic principles relating to “a life for a life”; and in this context, the lex talionis, as set out in

Leviticus 24 (verse 17), is occasionally called in aid: “Whoever kills any man shall surely be put to death…”

The approach based on the lex talionis is not convincing. In the first place, Old Testament strictures relating to a life for a life are themselves linked to disfigurement as a form of punishment. The relevant passage in Leviticus 24 on a life for a life also states that: “If a man causes disfigurement of his neighbour… so shall it be done to him — fracture for fracture, eye for eye, tooth for tooth.”

No humane, liberal justice system could today justify principles of punishment based on pure brutality in return for brutality. And accordingly, we should not expect the Old Testament pronouncements on a life for a life to present literal guidance in sentencing policy for modern Jamaica.

Moreover, if we accept the premise that the laws of Jamaica should follow biblical precepts, the life for a life approach encounters difficulties with the New Testament which, to put the matter at its minimum, does not support the brutal retaliation – turning the other cheek is conceptually different from the lex talionis.

Generally, therefore, the Biblical argument is not decisive. But, there is force in the fact that the society wants its leaders to take tough decisions to fight murder; the death penalty also derives support as the remedy that reflects the will of the majority, and as an approach that expresses our revulsion for some of the horrendous murders that confront us on a daily basis.

IRREVERSIBLE ERROR

In light of these realities, opponents of the death penalty face — admittedly — an uphill struggle in Jamaican society. One argument they present is based on the possibility of mistake. The justice system, it is sometimes argued, cannot provide the assurance that it will always present the correct person at the gallows.

This must be true. Even in the most efficient systems, there are instances of error. And, when the error is made, then, obviously, it is irreversible and shocking. In some cases in the United States of America, DNA evidence has been used to demonstrate the innocence of several persons on death row, and in other instances, one wonders if the execution of persons is driven more by the desire for catharsis than by certainty as to the identification of the murderer.

In the case of Jamaica, some politicians — when faced with the argument based on mistake — take solace in the putative safe harbour of the Privy Council. They say that the Privy Council is unbiased and, if anything, opposed to the death penalty; so, if the Privy Council allows the death penalty to proceed in a particular case, we can be sure that this is a decision devoid of error.

This line of reasoning is open to question. The Privy Council, to be sure, is a court of the highest impartiality and authority, but it does not follow from this that the court is beyond error. Also, in deciding murder cases from Jamaica, the Privy Council will normally accept the jury’s assessment of the facts of a given case. Thus, if the error is made by the jury, there will be instances in which the Privy Council’s conclusions will also be incorrect. In my view, therefore, the death penalty is cogently challenged by the possibility of error.

MORALITY

Some opponents of the death penalty also condemn the sentence on moral grounds. The death penalty, they submit, is unquestionably wrong, and it is wrong in all circumstances. It is barbaric, pointless and must be opposed by all lawful means.

This view, consistently presented over many years by Amnesty International, has recently received strong support from United Nations Secretary General Ban Ki Moon. Declaring that the death penalty is “simply wrong”, the Secretary General emphasised that: “I will never stop calling for an end to the death penalty” (United Nations, November 4, 2015).

Ban Ki Moon’s position is also held by the European Union. The European Union Policy on the Death Penalty asserts that executions are “cruel and inhuman”, and affirms that abolition is a prerequisite for entry into the Union. Building on its position based on morality, the European Union also calls on states which still have the death penalty to take steps to remove it progressively, starting with a moratorium.

OAS VIEWPOINT

Within the Organization of American States, there is also some support for the view that the death penalty is morally wrong. As Roger Hood and Carolyn Hoyle of Oxford University remind us, the death penalty has long been abolished in certain Latin American States. According to Hood and Hoyle, Venezuela abolished it in 1863, Ecuador in 1906, and Uruguay in 1907 (Hood and Hoyle, “Abolishing the Death Penalty Worldwide: The Impact of a ‘New Dynamic’” Crime and Justice, Volume 38, Number 1 (2009), p 1 at p 5).

In this context, too, in January 2014, on the invitation of Mexico, the Permanent Council of the Organization of American States discussed the question of the death penalty, with strong support for abolition coming from the Latin American countries which took part in the debate. Some of the speakers in that debate relied heavily on various resolutions of the United Nations General Assembly which have called for a moratorium on the death penalty throughout the world, and on publications by the Inter-American Commission on Human Rights (for summary, see OAS Press Release E-012/14).

In short, the moral case against the death penalty continues to be built at the international level. Opposition spokesman Mark Golding is on firm ground when he points out that the reintroduction of the death penalty in Jamaica will have consequences for the country on the international plane. Many of our international friends — the United Kingdom, France, the rest of the European Union, Canada, and some Latin American countries — would regard reintroduction as a retrograde step.

Non-legal impediments

Minister Montague has publicly asked Minister of State Pearnel Charles Jr for a report on the impediments which Jamaica would face in seeking to reintroduce the death penalty. On the basis of the foregoing, I suggest that there will be one set of impediments based on the moral and practical arguments against the death penalty. International opinion against the sentence will also need to be taken into account.

I rather doubt, however, that these are the types of impediments Minister Montague has in mind. These are, after all, not legal impediments: they stand in the way of the imposition of the death penalty in a general sense, but they do not rule out the possibility of a return to capital punishment by Jamaica.

INTERNATIONAL LAW

What, then, are the legal impediments that Minister Charles may uncover? It may be best to answer this question by reference to International Law and domestic law, respectively. As to the former, Jamaica has traditionally maintained that International Law does not prohibit capital punishment. Thus, notwithstanding the various United Nations Resolutions calling for moratoria in this area, Jamaica has argued that the relevant international instruments allow each State to carry out executions in appropriate circumstances.

The Jamaican position was perhaps most clearly articulated in its Statement on the subject to the Third Committee of the 62nd Session of the General Assembly on December 12, 2007. In that statement, Jamaica maintained that:

The Universal Declaration of Human Rights of 1948 does not expressly or implicitly prohibit the death penalty.

Several States which supported the Universal Declaration of Human Rights accepted that everyone has the right to life, but this has not prevented these States from retaining the death penalty.

The International Covenant on Civil and Political Rights (the ICCPR) (1966), which is binding on Jamaica, does not expressly or implicitly prohibit the death penalty.

The ICCPR expressly states that countries which have not abolished the death penalty should adhere to certain preconditions before carrying out executions. As long as these preconditions are satisfied, the penalty is allowed in International Law.

There is a treaty which is open to all states that wish to abolish the death penalty. This is the Second Optional Protocol to the ICCPR. As long as a State does not ratify this treaty, the State will not be legally required to terminate executions. Jamaica has not ratified this treaty.

The death penalty is an internal matter for each State. Jamaica, in keeping with its sovereignty and self-determination, reserves the right to carry out the death sentence. This is true for several countries in the world.

THE ICCPR

As a matter of International Law, the Jamaican position suggests that the country has reserved the right to conduct executions. International Law will not be an impediment to Minister Montague, as long as Jamaica carries out capital punishment in accordance with the strictures in the ICCPR.

In summary form, the ICCPR indicates that the death penalty may be carried out only for the most serious crimes, can only be imposed for matters which are subject to execution at the time of the commission of the crime, and may be carried out only following the final judgment of a competent court. Persons under the age of 18 may not be executed, nor may pregnant women. These provisions are set out in Article 6 of the ICCPR.

Another provision of the ICCPR, Article 7, is also relevant. It provides that no one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.

CRITICISMS

Although the Jamaican position may withstand legal scrutiny, it is vulnerable to at least two criticisms. First, Jamaica’s strict reliance on the language of the ICCPR commits the country to a rigid adherence to the text of the treaty; this approach ignores the context of the ICCPR and developments that have taken place since the ICCPR entered into force.

For Jamaica, the original meaning of the ICCPR remains in place even though the treaty may have evolved as a “living instrument.” In this regard, Jamaica’s Statement is reminiscent of the approach to the reading of legal texts most famously associated with the late Judge Scalia of the United States Supreme Court.

Secondly, Jamaica’s position — to the effect that the death penalty is a matter of internal law only — is difficult to reconcile with the evolution of human rights in the post-World War II era. The United Nations Charter, in Article 2, paragraph 7, indicates that the United Nations should not interfere with matters within the reserved domain of each State. But, that reserved domain is not a static concept. With the development of human rights, external agencies and States have become increasingly concerned with developments within individual countries.

The establishment of the International Criminal Court, the work of the United Nations Human Rights Council and the Human Rights Committee, exemplify this development. As an increasing number of states ban the death penalty, and maintain that they have done so because of developments in International Law, Jamaica will be hard-pressed to maintain that the death penalty is a purely internal affair.

Besides, Jamaica has accepted the ICCPR and the American Convention on Human Rights, which both address aspects of the death penalty as an international matter. This implies an opening of the door to international treatment of Jamaica’s internal death penalty debate.

DOMESTIC DELAY

Finally, what are the domestic impediments to the death penalty in Jamaican law? In the not too distant past, law students would immediately cite the Privy Council’s approach to delay in carrying out death sentences as a significant impediment.

In Pratt and Morgan v The Attorney General of Jamaica (1993), the Privy Council held that where the period between sentencing and execution exceeded five years, it was to be presumed that execution would be inhuman or degrading punishment or treatment.

And in Neville Lewis v The Attorney General (2000), the Privy Council appeared to have treated this presumption as an automatic rule, so that as soon as five years elapsed, the death sentence would have to be commuted to life imprisonment.

Arguably, then, the treatment of cases of delay was an “impediment.” If so, this impediment was removed when the Charter of Fundamental Rights and Freedoms in the Jamaican Constitution entered into force in 2011; for the Charter (in Section 13(8)(a)) expressly overturned the Pratt and Morgan and Neville Lewis approaches. The “death row phenomenon” is no longer incompatible with our law — even if delay in execution is of the order of 14 years, this will be acceptable.

Section 13(8)(b) of the Charter of Fundamental Rights and Freedoms also removed another possible “impediment” to execution. This provision specifies that the circumstances in which a person on death row is detained shall not provide the basis for commutation of sentence from death to life. In a sense, this amendment to our constitutional rights was a pre-emptive strike: the Privy Council had grown increasingly concerned about mistreatment of death row prisoners. We have concluded that it is possible to mistreat prisoners and then execute them.

MANDATORY DEATH

In Lambert Watson v R, the Privy Council held that the mandatory death penalty was unconstitutional; our final court reached this conclusion on the assumption that the mandatory death sentence was inhuman or degrading punishment or treatment (see, eg, Vasciannie, “The Decision of the Judicial Committee of the Privy Council in the Lambert Watson Case from Jamaica and the Question of Fragmentation, New York University Journal of International Law and Politics, Volume 41, p 836).

Following that decision, Jamaica amended its Offences against the Person Act in order to specify that, for capital murder cases, the presiding judge must have an alternative to execution among the sentencing options. Thus, for capital crimes, the judge may now choose between a death sentence and a life sentence.

CRITERIA FOR EXECUTION

This has prompted the need for the courts to develop criteria for determining which capital murders are deserving of the ultimate sanction. The Privy Council, in Daniel Dick Trimmingham v The State (2009), a case from St Vincent and the Grenadines, has held that the death penalty must be reserved for murders which in the facts of the murder amount to the “worst of the worst” and the “rarest of the rare.” The Privy Council also held that capital punishment may take place only when there is no prospect of reform of the murderer.

Although the facts in Trimmingham were quite horrific, the Privy Council found that they did not amount to the worst of the worst. The standard of depravity required is therefore extraordinarily high. In Peter Dougal v R (2011), the Jamaican Privy Council applied the standard, and commuted the death sentence to life imprisonment for the murder of two persons — LG Brown and Sandra Campbell — while they slept. This was not the worse of the worst, using the Privy Council’s marker.

CAPITAL MURDER

Generally, therefore, I expect that the report on impediments to Minister Montague will point out that Jamaica still retains the death penalty for some murders. These murders are categorised as capital murders in the Offences against the Person Act.

Capital murder includes murder for hire, murder in the course of certain felonies (burglary, robbery, arson, sexual offences), murder of a member of a specified class of persons acting in the course of their duties (security forces, correctional officer, judicial officer, a person carrying out constabulary functions, witness, juror, or Justice of the Peace), and multiple murders.

Murders within the capital category may bring about the death sentence, but they will do so only if they are so gruesome — and the murderer so awful — that they satisfy the Trimmingham criteria. All other murders are non-capital, and cannot give rise to the death sentence.

WHAT IS THE POINT?

In effect, then, it is open to Jamaica to carry out the death sentence. And the only impediments are those which follow from the proper operation of the law — as set out in the Jamaican Constitution, the Offences against the Person Act and decisions of the courts. This is as it should be.

It may not be a good thing for us to grab at the death penalty whenever there is a spike in murders. We should acknowledge that Jamaica has not carried out the death penalty since 1988, and give serious thought to whether there is any point in keeping it.

Stephen Vasciannie, CD, is Professor of International Law, University of the West Indies, Mona, and a former Jamaica Ambassador to the USA and the Organization of American States.