By Barbara Gayle, Staff ReporterTHE LONG debate as to whether the mandatory death sentence imposed on persons convicted of capital murder is constitutional is finally over.
Last week Wednesday the United Kingdom Privy Council put an end to the debate when it handed down a unanimous decision that the mandatory death sentence was unconstitutional and unlawful. The outcome of the ruling is that it is the judges who will now have to decide what sentences should be passed on prisoners convicted of capital murder. Prior to the Privy Council's ruling, judges had no say in the sentencing process.
Now that the Privy Council has said that the death sentence is discretionary, judges before imposing sentence in capital murder convictions, will have to hear a speech in mitigation from counsel for the defence, hear evidence from character witnesses called by the defence, in addition to social enquiry reports from probation officers to see if there are any extenuating circumstances which will convince the judge to impose the lesser sentence of life imprisonment. If the judge imposes the lesser sentence then, like non-capital murder cases, the judge will recommend how many years the prisoner must serve before he can be eligible for parole.
There are times over the years when juries return guilty verdicts in capital murder cases and on their own volition asked the judge if there was anyway in which mercy could be shown by the judge in passing sentence. The judges hands were tied then and the only remedy was for the Governor-General to exercise the prerogative of mercy. It is now appropriate for the judge to take into account any recommendation from the jury and the mitigating speech from counsel.
There are those who are anticipating that with this new victory the Government will carry out the death sentences when the judicial system has completed the process. The death penalty which is in the form of hanging has not taken place in Jamaica since 1988.
DEATH PENALTY CHALLENGED
The point of law raised before the Privy Council was of such great importance that nine Law Lords instead of the usual five or seven were selected to hear the case. The Jamaican case brought by Lambert Watson, a death row inmate who challenged the mandatory death penalty was consolidated with cases from Barbados and Trinidad and Tobago. Watson, 44, a labourer of Anchovy, St. James, who was convicted of murdering his nine-month old baby girl and her mother 24-year-old Eugenie Samuels in September 1997 was successful in his appeal.
He along with the other 38 prisoners on death row will be taken back to the Supreme Court for sentencing. Watson was convicted on June 15, 1999 of the murders in which the Crown led evidence that the motive for stabbing them to death was because Samuels had taken him to court for child support. The Court of Appeal had ruled last year that the mandatory death sentence was constitutional and Lambert challenged the decision. In a dissenting judgment last year in the case of Dale Boxx, Mr. Justice Henderson Downer (now retired) had said in the Court of Appeal that the mandatory death sentence was unconstitutional.
The prisoners from the other two Caribbean countries were not successful in their appeals as the Privy Council held that the Offences Against the Person Act was in force in those countries before their constitution came into force. "The law decreeing the mandatory death penalty was an existing law at the time when the constitution came into force and therefore, whether or not it is "an inhuman or degrading punishment", it cannot be held inconsistent with their constitution," the Privy Council held.
Although the prisoners from those two countries lost their appeals, the outcome of the Privy Council's ruling is that some 100 prisoners on death row in Trinidad and Tobago will have their death sentences commuted to life imprisonment. Michael Hylton, Q.C., Solicitor General and Patrick Foster, Deputy Solicitor General along with Kent Pantry, Q.C., Director of Public Prosecutions had tried to convince the Privy Council that Jamaica's Offences Against the Person Act existed before Independence when the Constitution came into force but the Privy Council disagreed. The Privy Council held that although the Act was in force since 1864, the 1992 amendment to the Act, paving the way for two categories of murder, brings it within the category of a new Act which came into existence after the Constitution in 1962.
Government lawyers in their submissions in the Court of Appeal in Jamaica and in the Privy Council had placed great emphasis on the very high incidence of murder and the widespread use of firearms in Jamaica. "These facts are well known to the Board and are, regrettably, notorious," the Privy Council said, in response to the arguments.
ORTHODOX SENTENCING
PRINCIPLES
"So long as those conditions prevail, and so long as a discretionary death sentence is retained, it may well be that judges in Jamaica will find it necessary, on orthodox sentencing principles, to impose the death sentence in a proportion of cases which is, by international standards, unusually high. But prevailing levels of crime and violence, however great the anxiety and alarm they understandably cause, cannot affect the underlying legal principle at stake, which is that no one, whatever his crime, should be condemned to death without an opportunity to try and persuade the sentencing judge that he does not deserve to die," the Privy Council ruled when it allowed the appeal and sent back Watson's case for sentencing.
