Convictions, acquittals and the death penalty

Back in the early nineties when I was getting my introduction to the Jamaican legal system, I heard a prosecutor named Martin Gayle — who is now a senior high court judge — addressing a jury in a murder case with reference to a man who had been released earlier in the trial.

He said: “We as prosecutors are here to prosecute, not persecute.”

He followed up by explaining that the man had been released earlier because of an absence of evidence.

I heard him utter these words again in recent times. He was correct 29 years ago and he is correct now.

Gayle’s utterances brought back memories of the original motivation that introduced me to this world of trial and judgement — that being a quest for justice.

Recent statistics have reflected a conviction rate of under 50 per cent for people criminally charged in the High Court. This has been followed by criticism of the players in the system, ie police, prosecutors, etc.

I think this criticism is occurring because many of us have forgotten the true purpose of the courthouse. It is where you go for justice, not to be convicted or acquitted. That is simply the consequence.

Allegations can be made against anybody by anyone. Why do we assume that everybody is guilty and the system has failed?

An acquittal is as much a validation of the system as a few countries where a trial is a formality and the conviction rate is through the roof. But I am pretty sure you do not want to live in any of them.

You see, crime appears to be better managed in controlled societies because of the absence of equality. Yes, equality! I speak of this not in relation to race, religion or class, but rather the inequality that exists because the Government and its agents are considered superior to the people.

That is okay until one day when the innocent man ends up in the swirl and that innocent man is you.

An arrest cannot be considered a determination of guilt.

So for a moment, let us assume that the acquittals are not the result of a bungled system that frees the guilty, but rather the perfect mechanism that provides justice to the innocent.

Would you still feel that a failure has occurred? Think on it.

The death penalty remains the last bastion of division worldwide. Should killers die?

Well, although I believe that anyone who kills, rapes, tortures or commits paedophilia should be killed, I do not believe in the death penalty. That may sound weird, but let me explain.

The judicial process and the judicial system do not have the tools in any system in any country on this planet to equip them to give sentences that are irreversible. No system is that perfect. Death is irreversible.

Now, that does not mean that the above mentioned ‘cruffs’ do not deserve a hangman’s noose. They do. But no system is perfect enough to order it.

Why do I say this? Let us look at ours.

The participants in the decision-making process are a judge and a jury of your peers. None of them know you. They did not see you growing up. They have not seen your crimes or your compassion. They are not police, social workers, politicians or teachers in your community. Their exposure to you is limited to the few days of trial.

In other countries your criminal past could be paraded in the trial. It is not so in ours, because ultimately you would end up being tried for who you were, rather than for what you are charged.

This process is simply not perfect — not here, not anywhere. We know it and the judicial system knows it. So, with this knowledge, they simply should not give sentences that are irreversible.

So yes, they deserve death. This, however, is one of those times when justice simply cannot be served.

Now back to the debate on our judicial efficiency. Let us look outward.

With regard to convictions/ incarcerations, the conviction rate in China is 99 per cent. Do you really think that is because they prepare cases better? Or maybe it is because the trial is a formality.

China is known for using its legal system for oppression. This, whether it is in relation to freedom of speech, movement or that peculiar right to disagree with the Government. That 99 per cent is not looking that attractive now, right?

The incarceration rate in Alabama is 946 per 100,000. The incarceration rate in Jamaica is 138 per 100,000. Of the two, which has the worst record for one-sided conviction and which one the least?

Alabama and its treatment of citizens of colour played out quite significantly in its legal system even up to recent times. Try to compare one day how over-represented blacks are in that prison system vs their statistical representation in the population of the state — 54 per cent of the state prison population but only 26 per cent of the state population.

Would you prefer Jamaica to be more like China or Alabama? I hope not.

Do not take our aversion to convicting an innocent man for granted. It was not always so.

Remember, George William Gordon denied involvement in the Morant Bay Rebellion until the end. He was executed. He was one of many treated this way by our legal system prior to our Independence.

This pursuit of justice is to be cherished, not scorned, scoffed at, or changed. We are this way because we know what it is like to be otherwise.

Read your history. Be thankful for your present reality.

Feedback: jasonamckay@ gmail.com