Tue | Sep 28, 2021

Editorial | Sentence discount not the problem

Published:Tuesday | April 6, 2021 | 12:09 AM

The Parliament is about to perform a three-card trick to give Jamaicans the illusion that something substantial has been done to deter violence against women in the face of public anger over Khanice Jackson’s murder. The plan is to expunge the 2015 law that allows judges to discount, by up to 50 per cent, the sentences of people who plead guilty, depending on when they admit to their crimes.

That will achieve little to nothing. The law is not the problem. Prescribed lengthy prison terms, or even mandatory penalty of death, are not of themselves deterrents if courts do not have accused persons to try and judges convict persons to sentence. In the event, the baying in the House a week ago over the provisions of Criminal Justice (Administration) (Amendment) Act betrayed an appalling ignorance by legislators of the law, including the factors that judges are to take into account when arriving at their sentences. There was also a failure in conceptual thinking.

To be clear, this newspaper is no less outraged over the killing of Jamaican women than Kerensia Morrison, the government backbencher and first-term MP, whose passionate complaint in the House about the law’s presumed overgenerous offerings to criminals elicited the interventions about its supposed failings and demands that Parliament send to the public a signal that they are being protected.

FULL FRAMEWORK NOT OFFERED

“They are looking forward to us, Government and Opposition, to pass good legislation, strong legislation,” she said. The justice minister, Delroy Chuck, all but indicated that he would oblige by repealing the legislation and making the discount of sentences solely the province of the plea-bargaining law.

What neither Ms Morrison nor Mr Chuck offered, however, was the full framework of the sentence-discount regime or a clear context within which it has been, or may be, applied. They dealt with the basics that stir emotions. Its broad provisions are that:

• If the first time a defendant is brought to court, and is in a position to plead (the first relevant date), and he pleads guilty, “the sentence may be reduced by up to 50 per cent”;

• If he decides to plead guilty after the first relevant date, but before the trial begins, the sentence discount can be up to 30 per cent;

• If the guilty plea comes after the trial begins, he may be afforded a 15 per cent reduction in the sentence.

The wording of the law makes clear that sentence reductions are not automatic. And neither are they universal. In that regard, it is disappointing that other crucial elements of the legislation were not highlighted during the debate. One is that the discount does not apply to guilty pleas for offences committed in the furtherance of, or ancillary to, the murder of members of the security forces or judicial officials in the conduct of their jobs. Also exempt are murders arising from, or ancillary to:

• Burglary and housebreaking;

• Arson of a home;

• Robbery;

• “Any sexual offence”.

Judges, in deciding on sentence discounts, are required to take into account the circumstances of the offence, “including the impact on the victim”. Importantly, too, they have to consider “whether the reduction of the sentence of the defendant would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of the defendant, that it would shock the public conscience”.

PUBLIC DISQUIET

In spite of these safeguards to protect the interest of victims and the upholding of justice, there has been public disquiet over sentences perceived as too lenient for the crime. What officials do not usually explain is that Jamaica’s inefficient law-enforcement and justice systems often keep accused persons in custody for so long before trial that by the time a defendant is convicted, or pleads guilty, he is likely to have already served a hefty chunk of what would have been his normal sentence. A discount for pleading guilty may then be taken into account. Inordinately long stretches in lock-up is antithetical to the constitutional requirement for trial “within reasonable time”.

That, though, is not the only argument against Ms Morrison’s expectation that the Parliament “doing something more” – like toughening the law on sentencing – will be a breakthrough deterrent to violence against women. Laws first have to be enforced, which also means solving crimes they cover. Which is not something Jamaica’s law- enforcement apparatus is particularly good at.

Take murders. Of the more than 1,300 homicides reported last year, the police said they cleared up 53 per cent, which, happily, was a 14 percentage point improvement on the previous year’s 39 per cent. That, nonetheless, means that some 622 of them were not ‘cleared up’.

The year before, 817 of the 1,339 murders, based on the police’s definition of ‘cleared up’, remained unsolved. ‘Cleared up’ translates to identifying a suspect, not necessarily that a person has been charged, indicted, or tried in court.

In the United States, the clear-up rate for homicides is over 61 per cent. The London Metropolitan Police usually has a clear-up rate in the 90 per cent range although the United Kingdom does not anymore apply that matrix in accounting for homicides, preferring instead to rely, in its official data, on indictments and court outcomes. The bottom line is that in Jamaica, criminals can operate almost with impunity. There is a high probability that they won’t be caught, indicted, and brought to justice – which is the real deterrent, not the fact of the law.

Maybe Ms Morrison and the Parliament might refocus on the real problem.