*The Judicial Committee of the Privy Council. Image credit: Judicial Committee of the Privy Council (www.jcpc.uk). Copyright © 2022 Judicial Committee of the Privy Council.
In the sixty years since Jamaica achieved independence, capital punishment has emerged as a polemical issue that continuously captivates public imagination. Indeed, it has often been the subject of vigorous debates in various fora including, perhaps most consequentially, the courts and parliament. Undoubtedly, those debates have shaped (and indeed continue to shape) the substance, and tenor of discussions about capital punishment in Jamaica. Following the brutal massacre of a woman and her children on June 21, 2022, by Rushane Barnett, the Director of Public Prosecutions announced her office’s intention to seek the death penalty for the accused. Unsurprisingly, that announcement catalyzed nationwide discussions about capital punishment with public sentiment appearing to strongly favor its reinstatement. After pleading guilty, the defendant was remanded for sentencing on September 22, 2022. It remains to be seen whether the court will impose a sentence of death in Mr. Barnett’s case—something which has not happened in over three decades.
Antecedents of Capital Punishment in Jamaica
Capital punishment is an enduring relic of Jamaica’s colonial past. While a colony of Britain, Jamaica “received” British laws, customs, and practices--including capital punishment, which was first administered in Britain in 1196. When Jamaica’s Independence Constitution was being drafted by the colonial office, great care was taken to ensure that the validity (and ergo lawfulness) of pre-independence punishments, including capital punishment, would be preserved long after Jamaica achieved independence. In pursuit of that aim, the drafters inserted into the Constitution a “special savings law clause” that effectively insulated pre-independence punishments from being struck down by the courts based on any inconsistency with the Constitution. Through the mechanism of the special savings law clause, the lawfulness (and by extension constitutionality) of capital punishment in Jamaica would be preserved well into the 21st century.
The Current Legal Position on Capital Punishment in Jamaica
Although the last execution in Jamaica occurred in 1988, capital punishment has remained on the statute books following a 2008 parliamentary conscience vote that favored its retention. In 2011, the Constitution of Jamaica (“the Constitution”) was amended and a Charter of Fundamental Rights and Freedoms (“the Charter”) was introduced to replace the old Chapter III. Quite significantly, the Charter was outfitted with a new “special savings law clause” which not only functions to preserve the legality of capital punishment under the Constitution but also prevents a sentence of death from being commuted to life imprisonment based on any delay in execution or the conditions under which condemned prisoners are held on death row. The inclusion of this savings law clause effectively nullified, or at the very least attenuated the precedential force of Pratt and Morgan v The Attorney General for Jamaica (1993) 43 W.I.R. 340 where the Privy Council determined that a protracted delay in the carrying out of a death sentence could constitute “inhuman and degrading punishment or other treatment” in contravention of the Jamaican Constitution, and commuted the death sentences of the appellants, Messrs. Earl Pratt and Ivan Morgan, to sentences of life imprisonment.
In contrast to what obtains in Trinidad and Tobago, capital punishment is not mandatory for murder and similar offences after the Privy Council struck down the mandatory death penalty in a trilogy of cases decided twenty years ago (Reyes v The Queen (2002) UKPC 11; R v Hughes (2002) UKPC 12; Fox v The Queen (2002) UKPC 13). Later, the Privy Council would clarify that in jurisdictions like Jamaica, a sentence of death should only be imposed where: 1. the murder case falls within “the most extreme or exceptional”, “the worst of the worst” or “the rarest of the rare” category; 2. there is “no reasonable prospect of rehabilitation of the defendant”; and 3. the case is such that “…the objectives of punishment cannot be achieved by any other means than the imposition of the…death penalty.” (Trimmingham v R (St. Vincent and the Grenadines) [2009] UKPC 25 (22 June 2009) Privy Council Appeal No 67 of 2007).
The Retentionist Perspective
To date, capital punishment is retained by approximately fifty-five (55) countries worldwide, which have carried out executions in the past decade (Amnesty International 2021). Proponents of capital punishment typically argue that:
i. Murderers should be punished in a manner consistent with the gravity of any crime they commit (i.e. the “eye for eye…tooth for tooth…” precept espoused in Leviticus 24:17);
ii. Retaining capital punishment will deter would-be murderers, and will signal societal condemnation of murder in the strongest terms;
iii. Executing convicted murderers provides closure, comfort, and most importantly, vindication to the family, friends, and loved ones of victims;
iv. Capital punishment eliminates the possibility of recidivism thereby ensuring that the offender can cause no further harm; and
v. Taxpayers should not have to bear the burden of financing the maintenance of
convicted murderers for the duration of their time in prison.
The Abolitionist Perspective
By contrast, opponents of capital punishment maintain, among other things, that:
i. ‘No humane, liberal justice system [can] today justify principles of punishment based on pure brutality in return for brutality’ (Professor Stephen Vasciannie, ‘The death penalty and its impediments’-Jamaica Observer 2016);
ii. There is no proof that the administration of capital punishment serves as a deterrent to the commission of crimes since no nexus between its administration and crime reduction has been definitively established;
iii. There is a very real and dangerous risk of error in executing innocent persons, particularly in light of well-documented issues with the conduct of criminal investigations by law enforcement;
iv. The administration of capital punishment denies perpetrators the opportunity to be reformed and rehabilitated;
v. The administration of capital punishment is immoral, barbaric, and incompatible with the principle of respect for human dignity; and
vi. The administration of capital punishment is inherently unfair since it disproportionately impacts disadvantaged groups who typically lack the wherewithal and/or social capital to effectively navigate a deeply flawed criminal justice system.
Across the world, approximately one hundred and forty-four (144) countries have abolished capital punishment in law or practice (Amnesty International 2021).
Given the very nuanced nature of the issue, there is an urgent need for greater public education on capital punishment, and engagement around alternatives to effectively tackling crime. Moreover, and despite strong public support, capital punishment should not be administered in the absence of credible, cogent, and compelling evidence validating its utility as an effective crime-fighting tool. To date, no such evidence has ever been forthcoming--neither in respect of Jamaica nor jurisdictions like China which is an active administrator of capital punishment. Rather than presenting capital punishment as a panacea in times of murderous mayhem, decision-makers should devote their attention to devising effective approaches to tackling Jamaica’s crime problem.
The continued retention of capital punishment on Jamaica’s statute books has never been shown to serve any useful purpose. Indeed, according to the American Civil Liberties Union “states that have death penalty laws do not have lower crime rates or murder rates than states without such laws. And states that have abolished capital punishment show no significant changes in either crime or murder rates” (ACLU 2022). In light of this, Jamaica should take strong leadership on the issue of capital punishment and move towards abolition.
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