Tue | Oct 24, 2017

Olive Nelson | Crime, death penalty, and Privy Council

Published:Sunday | November 6, 2016 | 12:00 AM
Olive Nelson

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 medium-security 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

 

1. 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.

2. 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.

3. 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.

4. 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.

5. 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 high-crime 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.

6. 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?

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