Crime, death penalty, and Privy Coun­cil

Jamaica Gleaner - - IN FOCUS - Olive Nel­son is a char­tered ac­coun­tant. Email feed­back to col­umns@glean­erjm.com and olivescottn@gmail.com.

IN SEPTEM­BER 2003, John Allen Muham­mad was sen­tenced to death in the United States of Amer­ica for 17 mur­ders com­mit­ted in a num­ber of states over a 10-month pe­riod in 2002. With­out a whim­per from the in­ter­na­tional hu­man-rights lob­by­ists, he was ex­e­cuted by lethal in­jec­tion in 2009 after spend­ing six years on death row. Chances are, if Mr Muham­mad had com­mit­ted crimes of a com­pa­ra­ble mag­ni­tude in Ja­maica, he would have been alive and well to­day ei­ther await­ing trial or serv­ing time in a medi­um­se­cu­rity prison.

The last time any­one was made to pay the death penalty here was in 1988. To­day, one soli­tary per­son re­mains on death row fol­low­ing the con­se­quen­tial com­mut­ing to life im­pris­on­ment of the vast ma­jor­ity of some 200 per­sons who were on death row in 1992.

It was the year in which the Govern­ment leg­is­lated for a sep­a­ra­tion be­tween two types of mur­der, essen­tially on the ba­sis of the cir­cum­stances in which they were com­mit­ted and the oc­cu­pa­tion of the vic­tims. A manda­tory death penalty would from then ap­ply only to cap­i­tal mur­ders - those deemed the more se­ri­ous.

It was as far as the Govern­ment dared to go at the time, de­spite the urg­ings of the anti-death-penalty ad­vo­cates.

Hanover Mem­ber of Par­lia­ment Ian Hayles be­lieves that im­ple­men­ta­tion of the death penalty should be re­sumed in Ja­maica, for there is “no de­ter­rent out there now” (TVJ News Oc­to­ber 17, 2016). It was an ex­pres­sion of out­rage at the con­sum­ing pain be­ing in­flicted on his con­stituents - rel­a­tives of the vic­tims of a grow­ing army of ruth­less mur­der­ers.

Hayles might not have read the lead sto­ries in The Gleaner of May 9, 2016 which them­selves were prompted by a sim­i­lar view ear­lier ex­pressed by Min­is­ter Robert Mon­tague on as­sum­ing the na­tional se­cu­rity port­fo­lio in March 2016.

In those sto­ries — ‘Death sen­tence for hang­ing’, ‘Dis­ap­pear­ing death row’ and ‘Hang­ing should never be re­sumed’ - Bar­bara Gayle, Gleaner jus­tice co­or­di­na­tor, gave an ex­cel­lent over­view of the sta­tus quo re­gard­ing cap­i­tal pun­ish­ment in Ja­maica to­day. In essence, the death-penalty law is no longer worth the pa­per on which it is writ­ten cour­tesy of the UK Privy Coun­cil, our fi­nal court of ap­peal.

The writ­ing has been on the wall for some time since the Pratt and Mor­gan rul­ing of 1993, but came into sharper fo­cus in 2009 with the Trim­ming­ham Case out of St Vin­cent and the Gre­nadines.

The haunt­ing facts of that case (car­ried in one of the pre­vi­ously men­tioned Gleaner sto­ries) are worth re­peat­ing. ”(Daniel) Trim­ming­ham, who was armed with a gun, had held up a 68-year old man and de­manded money. When the vic­tim said he had no money, Trim­ming­ham used the vic­tim’s ma­chete to be­head him and then cut out his ab­domen and buried the head in a hole.”

The Privy Coun­cil found that the cru­elty and in­hu­man­ity dis­played in this case was not of a suf­fi­ciently wicked level to at­tract the death penalty, as it did not fall within the cat­e­gory of the “rarest of the rare or the worst of the worst”.

AVOID­ANCE OF DOUBT

And for the avoid­ance of doubt, the Privy Coun­cil ex­pands on how that should be un­der­stood: “In con­sid­er­ing whether a case fell into that cat­e­gory, the judge should com­pare it with other mur­der cases and not with or­di­nary civilised be­hav­iour!”

The death penalty was abol­ished in the UK in 1965. The homi­cide rate has hov­ered around one per 100,000 of their pop­u­la­tion for most of the years be­tween 1970 and 2012, peak­ing at 2.1 in 2003. In Ja­maica, the cor­re­spond­ing rate moved from eight in 1970, ris­ing steadily (the ex­tra­or­di­nary 1980 elec­tion year ex­cepted) to 26 in 1993, and then mov­ing swiftly to 62 by 2005. Had the sit­u­a­tion been re­versed be­tween the two coun­tries, the death penalty would still be le­gal in the UK to­day and the Privy Coun­cil would be look­ing more favourably at de­liv­er­ing jus­tice to the vic­tims of cold-blooded mur­der­ers.

Those who would like to be­lieve that the val­ues of our erst­while colonis­ers have changed sub­stan­tially and de­serve to be heeded may be sur­prised to find that in July 2016, in her first par­lia­men­tary de­bate as UK prime min­is­ter, Theresa May, with­out any hes­i­ta­tion, un­veiled a will­ing­ness to em­ploy nu­clear power against en­e­mies of her coun­try not­with­stand­ing that it would lead to the death of hun­dreds of thou­sands of in­no­cent men, women and chil­dren. Her jus­ti­fi­ca­tion? “The whole point of a de­ter­rent is that our en­e­mies need to know that we would be pre­pared (to use it).”

Cheated out of what should have re­mained an ef­fec­tive op­tion for send­ing a strong sig­nal to the pur­vey­ors of mur­der in our coun­try, we are now fac­ing a dilemma as to where to turn to tame crime.

Ev­ery time we are faced with a seem­ingly in­tractable prob­lem in this coun­try, we pass a law with much fan­fare only to for­get about it and then move on. We seem to have fallen so in­ex­orably in love with the pass­ing of laws that we are even now bring­ing new leg­is­la­tion into play long after it has been dis­carded by other ju­ris­dic­tions (“What’s really wrong with jus­tice?” Sun­day Gleaner, Oc­to­ber 2, 2016).The res­i­dents of Gor­don House are busy in­dulging them­selves in the sport of law­mak­ing while the coun­try burns. It is a lazy and reck­less ap­proach to gov­er­nance.

THE WAY FOR­WARD

. Any se­ri­ous at­tempt to fix the crime prob­lem must be­gin with a mora­to­rium on the pass­ing of new laws and a par­lia­men­tary fo­cus on those on our books (in­clud­ing the death penalty) to en­sure that they are ap­pro­pri­ately amended, where nec­es­sary and vig­or­ously en­forced. . A ciear mes­sage needs to be sent to the new brazen breed of crim­i­nals that it is not busi­ness as usual. The govern­ment needs to do the right thing and move us away from the Privy Coun­cil so we can de­ter­mine our own des­tiny. . The anti-death penalty ad­vo­cates should be asked to bring proof that the death penalty is not a de­ter­rent in Ja­maica given the strong cor­re­la­tion be­tween the rise in mur­ders and the non-im­ple­men­ta­tion of the law. They should ex­plain why the right to life is more sa­cred for the mur­derer than for his vic­tim. . Dou­ble the size of the po­lice force. Ac­cord­ing to a UNDP study con­ducted in 2012, of seven Caribbean coun­tries sur­veyed, Ja­maica had the low­est po­lice pres­ence per capita. The force is se­verely un­der­staffed at 297 per 100,000 ci­ti­zens. Our less-vi­o­lent Caribbean neigh­bours, Bar­ba­dos and Trinidad, for ex­am­ple have com­pa­ra­ble rates of 497 and 529, re­spec­tively. Im­ple­ment the re­peat­edly rec­om­mended re­struc­tur­ing pro­pos­als for the po­lice force, re­solve the im­broglio be­tween the force and INDECOM, and seek to im­prove po­lice staff morale. . Roll out com­mu­nity polic­ing ac­tiv­ity along the lines be­ing pur­sued among the gangs of Brazil as de­scribed in the Gleaner edi­to­rial of Septem­ber 21, 2016, Nor­mal­is­ing high­crime Ja­maican neigh­bour­hoods”, or as prac­tised in Sin­ga­pore - a coun­try whose ex­em­plary eco­nomic prow­ess we like to cite but never its jus­tice prac­tices. Sin­ga­pore has a manda­tory death penalty for mur­der, as well as for ag­gra­vated drug traf­fick­ing. Its mur­der rate of less than 1 (0.2) is among the low­est in the world, while the size of its po­lice force is re­ported to be 752 per 100,000.6. In­cor­po­rate the ac­tiv­i­ties of the Peace Man­age­ment Ini­tia­tive with the new com­mu­nity-polic­ing ef­fort. . Rekin­dle hope in our young peo­ple. In co­op­er­a­tion with the pri­vate sec­tor, re­so­cialise the un­em­ployed youth through a com­pre­hen­sive pro­gramme of train­ing and job cre­ation.

Much of this is not new, but will re­quire ad­di­tional funds and some trans­for­ma­tional po­lit­i­cal lead­er­ship. A re­order­ing of pri­or­i­ties, be­gin­ning with a four-year post­pone­ment of in­con­se­quen­tial lo­cal govern­ment elec­tions, would go a far way in pro­vid­ing some of the nec­es­sary funds. The ques­tion now can­not be about what it will cost to fix our di­lap­i­dated jus­tice sys­tem but how much it will cost not to.

We did not ar­rive at this sorry place overnight and will not be able to in­sti­tute all the nec­es­sary re­forms overnight ei­ther, but our vul­ner­a­ble law-abid­ing ci­ti­zens should not have to be scur­ry­ing around look­ing for mul­ti­ple means to pro­tect their right to life while the vilest of the vilest are be­ing as­sisted by the State to pre­serve theirs. Un­til the ta­bles are turned, the crim­i­nal fringe will con­tinue to laugh at us as they forge their mur­der­ous path to fame.

How many more will have to suf­fer? How many more will have to die?

I

Olive Nel­son

GUEST COLUM­NIST

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