The death penalty revisited

published: Monday | December 23, 2002

Stephen Vasciannie

GIVEN JAMAICA'S extraordinarily high murder rate, it is understandable that the Government is
contemplating the reinstitution of the death penalty.
Even if some members of the Cabinet have personal reservations about this form of punishment
(and they say that they do), the Government is hard-pressed to reflect majoritarian sentiments on
this issue.
For the majority, the issue seems quite clear: the death penalty is an important component in the
State's fight to return the streets of Jamaica to something resembling normal life.
In response, various opponents of the death penalty raise points that are worthy of careful
consideration. Almost invariably, the first point is that the death penalty is not a deterrent. This
perspective is often advanced with certainty, as if it is a law from the natural sciences: "let no one
fool you, the death penalty is not a deterrent." Sometimes, adherents of this iron law will add that
"studies show that the death penalty is not a deterrent."
Advocates of this position will also point out that some societies without the death penalty have
lower murder rates than those with the death penalty, and that societies that have changed from
the death penalty to life imprisonment show no marked increase in the murder rate following the
abolition of the death penalty.
I have serious doubts about this line of analysis. In the first place, it is difficult to understand why
the death penalty would not be a deterrent to some people. To be sure, there will be a category of
persons, hardened by life and by improper socialisation, who will show no concern whatsoever for
the prospect of execution in contemplating murder; but, there will, I believe, be others who are
influenced by the fear of death on the gallows. We may say that this latter category regards the
death penalty as a deterrent.
Secondly, I wonder how particular studies may actually prove that the death penalty is not a
deterrent. If the studies are undertaken on a cross-national or cross-cultural basis, it will be
almost impossible to single out, in a conclusive manner, the impact of the death penalty in
determining the murder rate: surely, the relatively low level of murder in, say, the Scandinavian
countries has more to do with wider social and cultural considerations than it has to do with the
presence or absence of the death penalty as the ultimate sanction.
Similarly, if we examine the impact of the death penalty as a matter of time series analysis, the
results may not be conclusive -- or will certainly not be as conclusive as some opponents of the
death penalty posit. In Time Period A, the murder rate may be high for a wide range of factors.
Then the death penalty is abolished, and in Time Period B, the murder rate falls below that in
Time Period A. This really tells us about changes in a number of social factors, of which the
absence of the death penalty may (or may not) be one. In itself it does not conclusively establish
the place of the death penalty in influencing the murder rate.
In view of such arguments, another line has been taken by some persons who maintain that the
death penalty is not a deterrent. They argue that it is not the death penalty which is the deterrent,

but rather it is the risk of being caught by the police and sentenced for the crime that really deters
some prospective murderers. This argument is often presented ex cathedra, and we are left to
figure out exactly how the analyst knows that the risk of capture is the real deterrent. This
argument also lacks cogency because it does not indicate why the prospective murderer would
be influenced by the risk of capture, but not by the risk of execution.
More generally, even if we assume, arguendo, that the death penalty is not a deterrent, this does
not necessarily mean that the death penalty should be abolished. Many Jamaicans take the view
that the death penalty may be supported as a means of ensuring justice: simply put, the
sentiment is that the person who commits capital murder should pay fully for that act. There is, of
course, a thin line between justice and revenge in this situation, but the majoritarian perspective
seems to be that retribution is an appropriate objective of punishment in the present
circumstances in Jamaica.
Is the death penalty inhuman or degrading punishment or treatment, the kind of thing that is
prohibited by Section 17 of the Jamaican Constitution? If we rely on those who drafted the
Jamaican Constitution, then, clearly the death penalty is not perceived as inhuman or degrading
punishment, for Section 14 of the same document preserves the possibility of executions when
conducted in accordance with safeguards for due process.
But what if we examine the question from first principles? There is a strong case for suggesting
that the death penalty is indeed inhuman and degrading, and the actual method of execution
preferred in Jamaica seems to emphasise the degrading character of the punishment.
This perspective, however, does not lead us to the conclusion that the death penalty should be
abolished in all cases. The people of Jamaica may well take the view that even if the death
penalty is a form of inhuman and degrading treatment, we are prepared to live with that, bearing
in mind the circumstances that prompt execution.
PRATT AND MORGAN
The Jamaican Government has maintained that the decisions of the Privy Council in Pratt and
Morgan and in Neville Lewis amount to an abolition of the death penalty. One may challenge this
by suggesting that it is possible for the State to complete the process of appeals in capital murder
cases within five years; it is also possible to argue that the real difficulty is to be found in the slow
processes of the Jamaican judicial system. But, to be fair, this approach does not fully
acknowledge that there is an external component to the appellate process, the Inter-American
Commission, and that this Commission seems inclined to disregard the time constraints faced by
the Jamaican authorities.
In the end, therefore, the decision of the Jamaican Government to follow the Barbadian lead with
a constitutional amendment designed to overturn the impact of the Pratt and Morgan decision
cannot be regarded as irrational. If Jamaican society decides to retain the death penalty, then it
cannot be right for this approach to be stymied by either the Privy Council or the Inter-American
Commission.
On the other hand, if the constitutional amendment is carried, I hope the Jamaican authorities will
move quickly to reinstate the country among the parties to the First Optional Protocol to the
International Covenant on Civil and Political Rights. The death penalty is not the only human
rights matter that arises in our context, and we should seek the benefits of international advice on
both death penalty issues and on other matters of human rights.
Stephen Vasciannie is Professor of International Law, University of the West Indies,
Mona.

Resolving death's debate - October 30, 2000

Stephen Vasciannie
AT LEAST in a political sense, Senator Ossie Harding, Q.C., is a brave man. Two Fridays ago, in
view of the present discussions concerning the recent Privy Council ruling on Neville Lewis et al,
he introduced a resolution in the Senate concerning the death penalty. This is not a resolution
calling for a reconsideration of Government perspectives on Neville Lewis and others in his
situation; nor is it a resolution calling for a debate on the circumstances in which the death
penalty may be imposed in Jamaica.
Rather, it is a resolution that calls upon the Government to "sign, ratify and accede to the Second
Optional Protocol to the International Covenant on Civil and Political Rights and in furtherance of
so doing take all necessary steps with all due speed to give effect to it". In effect, the Senator is
calling for the Government to abolish the death penalty in Jamaica, speedily and completely.
In a country which is literally under the gun, in which murder is a daily occurrence, and in which
over 700 people have lost their lives since January, can this resolution make any sense? Owing,
at least in part to our criminal realities, and also to the inertia of history, the vast majority of
Jamaicans continue to support the death penalty -- and, in many cases, feel a marked sense of
frustration that the ultimate sanction has not been carried out against convicted murderers since
the late 1980s.
This consideration, on its own, will almost certainly drive Senator Harding's resolution into the
footnotes of Hansard; but the Senator persists, and does so, it must be said, with a certain
degree of unflappability. What arguments, you may wonder, does the Senator bring in support of
his resolution? On the face of the resolution, three main points emerge:
It has never been determined that capital punishment is an effective deterrent to the commission
of murder.
There is a worldwide trend towards "more humanitarian treatment and punishment of offenders".
Whereas in 1979, 18 countries had abolished the death penalty for all crimes, this number grew
to 38 in 1989 and had reached 68 States by June 1999.
There is some degree of institutional support for abolition. In addition to the views of some States,
as reflected in the General Assembly of the United Nations, the Central Committee of the World
Council of Churches has also declared its "unconditional opposition" to the death penalty, and
has called for action to achieve worldwide abolition.
Death as deterrence
How convincing are these arguments? Taken on their own terms, they suggest, at most, that from
the perspective of humanitarianism, one might regard abolition as an option for some States, but
they do not strike me as particularly cogent in themselves.

Take, for example, the first point on deterrence. True, there may well be no empirical basis, from
particular societies, to conclude that capital punishment is an effective deterrent against murder.
But what Senator Harding now needs to demonstrate is how one could go about gathering
decisive evidence on this point.
Consider Society A, which has the death penalty in Year 1. It then abolishes the death penalty in,
say, Year 5. Clearly, we cannot just compare the murder statistics in Year 1, as against, say,
Year 5, in order to determine whether the abolition of capital punishment has led to an increase in
the murder rate. This is so because there may well be other factors (having nothing to do with
capital punishment) that have influenced the murder rate in Society A, in Year 5, as against Year
1.
Similarly, for Senator Harding to maintain that capital punishment is not a deterrent, he cannot
simply argue that Society A, which has abolished capital punishment, has a lower rate of murder
than Society B, which has retained the death penalty. Again, such a comparison would only be
decisive if Societies A and B were both subject to the same set of socio-political and economic
circumstances. This, we know, does not happen in the real world, so studies on the comparative
impact of the death penalty in different societies seem to be inadequate to support the Harding
thesis.
More generally, abolitionists now all sing from the same hymn book on the point. They assert that
"the studies" do not suggest that the prospect of the death penalty is a deterrent, but, the actual
terms of these studies are rarely presented. From a purely subjective perspective, it seems to me
that the prospect of being put to death must cause some possible murderers to forego murder as
an option; and from this starting point, I believe the onus remains on the abolitionists to show that
the deterrence argument has no value.
No globalisation
The second point in Senator Harding's resolution -- concerning the worldwide increase in
countries abandoning the death penalty -- indicates that several countries have been convinced
by the abolitionist perspective.
Notice, however, that this argument really has little bearing on how any one society may view the
death penalty debate. Even if the vast majority of States opposed death sentences, this would
not, in itself, be decisive.
What is more telling must be the views of persons who, in their own country, are subject to the
risk of murder, and who have considered whether or not they wish the death penalty to remain.
Majority sentiment by States -- and even the increase in support for abolition -- might be a broad
guide to trends in State opinion, but each country must determine the issues of principle
concerning the death penalty on its own. This is not an area for the free play of globalisation, one
could say.
Similar considerations apply to the third point, concerning institutional support for abolition.
Though it may be true that the World Council of Churches exercises some moral influence over
member churches and individuals, that body needs to explain why the issue of capital punishment
-- a matter of profound impact in each society -- must be extracted from national boundaries and
subjected to a broad international conclusion. At what stage did individual X, fearing brutal
murder, have a say in the deliberations of the World Council of Churches on this point?
Senator Harding is to be commended for putting the death penalty on the agenda, even in the
face of hostile social circumstances. I hope the Senate will take up his challenge, and that there
will be a substantial debate on the question in the near future. Nontheless, bearing in mind the

parlous state of the economy, the police force, the prison system, and the spectre of murder at
many corners, the Senate and people of Jamaica may hardly have the time for Harding.
Stephen Vasciannie, an attorney-at-law, teaches at the University of the West Indies.

... Mandatory death considerations

published: Sunday | November 13, 2005

Stephen Vascianne, Contributor

LAST WEEK, one of my distinguished Gleaner colleagues wrote about aspects of the death
penalty as administered in Jamaica. He was particularly scathing about the mandatory death
penalty law that was in place in this country from the early 1990s until last year when the Judicial
Committee of the Privy Council struck down the law. This article is prompted, in part, by my
colleague's perspective on the matter.
The mandatory death penalty law introduced by the Government of Jamaica in the early 1990s
was meant as an ameliorative device. Prior to the passage of that law, all convictions for murder
would automatically lead to the imposition of the death sentence by the judge concerned. If you
committed murder, you would be executed, unless, of course, the local Privy Council granted
mercy. That position is still the law in Trinidad and Tobago and Barbados.
The Jamaican Government took the view that this approach was too stringent. Thus, it introduced
legislation not challenged by the Opposition at the time - under which only some types of murder
would be treated as capital murder, giving rise to the death penalty. Under the law, as amended,
capital murder included murder in the course of a number of felonies - such as robbery, arson of
a dwelling place, sexual offences, and terrorism. Under the amended law, as well, the capital
murder charge was placed on persons found guilty of more than one murder, and on persons
who murdered judges, jury members, members of the security forces, justices of the peace and
so on.
NO CURRY FAVOUR
My colleague suggests that the effect of this legislation was to ensure that if you killed a politician,
you would be executed, and implies that this, in itself, confirms how unjust the law was. Thank
heavens that the Privy Council struck down this blatant attempt at currying favour for politicians of
both the PNP and the JLP, he continues.
But what is the source of this contention? It would be good if the colleague could clarify the point
by direct reference to the law. My understanding is that the mandatory death penalty law, as
amended, was an attempt to indicate those forms of murder that the society found particularly
disruptive or dangerous, and thus worthy of the ultimate sanction. To reduce this to an argument
about political preferences in Jamaican society is quite misleading.
Moreover, when the Judicial Committee of the Privy Council struck down the legislation last year,
it did so for reasons that had nothing to do with any perception that the law was biased in favour
of politicians. Rather, the Judicial Committee of the Privy Council examined the
legislation against the background of the prohibition on inhuman or degrading punishment or
treatment in the Jamaican Constitution.
In the Privy Council's view, the Jamaican law was contrary to the Constitution because it did not
give judges any discretion in cases of capital murder, as defined under the Offences Against the
Person Act. For the Privy Council, this lack of discretion meant that individual murder convicts
were not treated as individuals, and this lack of individualised treatment amounted to the denial of
the humanity of the murder convicts.
LAMBERT WATSON

In the case which reached this decision for Jamaica - Lambert Watson v. The Attorney-General there were a number of technical points. One point that has not been fully discussed concerns the
fact that at the time Jamaica introduced the capital/non-capital murder distinction, there was clear
judicial authority that Parliament could pass laws requiring mandatory sentences for murder. In
other words, in the Lambert Watson decision, the Judicial Committee of the Privy Council was
prepared to amend its perception of what constituted inhuman and degrading treatment.
It may well be that this is an appropriate course of action for the Privy Council. After all, human
rights standards evolve with the passage of time, as social perspectives change.
Notice, however, two points. First, in the United States of America, there is a rather intense
debate about whether judges should apply constitutional principles as they were understood at
the time the constitution was ratified, or whether they should apply those principles in light of
changes in society. In Jamaica, we have not really had that debate - but our highest court based
in London - has implicitly taken a position on the matter.
Secondly, we should note that the Judicial Committee of the Privy Council was able to overturn
Jamaica's mandatory death penalty law because this law had been amended subsequent to the
date of independence. The Jamaican Constitution contains a controversial savings clause to the
effect that laws that existed prior to independence cannot be challenged on the basis that they
are contrary to fundamental rights and freedoms recognised by the Constitution. Had the
Jamaican authorities not amended the mandatory death penalty following independence, the old,
draconian law could not have been struck down by the Privy Council.
Finally, it is appropriate to note that the Government has acted in keeping with the principles of
the rule of law on this question. Following the Lambert Watson decision, Parliament has amended
the law in order to reflect the main principles put forward by the Privy Council. If one commits
capital murder today - or a form of murder that would have been capital murder under the preLambert Watson dispensation - then the judge will have the option of delivering a sentence of
death or life imprisonment. In other cases previously non-capital murder - the judge has other
options open to him or her in sentencing.
These rules should not be reduced to unduly simplistic assertions about political motives.
Stephen Vasciannie is a professor at the University of he West Indies and a consultant in
the Attorney-General's chambers.

To hang a living man

published: Monday | July 19, 2004

Stephen Vasciannie

THE PHILOSOPHICAL and policy arguments concerning the death penalty have been
extensively discussed. Those against the penalty emphasise, among other things, that the
punishment is inherently cruel and inhumane, that the State sends the wrong signal about its
attitude to life when it takes life by deliberate decision, and that the death penalty is not a
deterrent to murder.
Critics of the penalty also point to the possibility of a mistake, and note that each execution
represents, at least in part, the failure of the State, and other agents of socialisation, to guide
properly the murder convict in the direction of the good citizenship. To this may also be added
moral and religious considerations, based essentially on the sanctity of life: life is such a precious,
sacred, gift from God, no Government of humans should collectively take unto itself the power to
take life.
But the counter-arguments are also well-rehearsed. The death penalty for murder reflects
society's desire for fairness and justice: the murderer has wilfully taken the life of another, and by
this act, has forfeited the right to live. Those who support the death penalty also emphasise that
relatives and others close to the murder victim often feel a greater sense of closure when the
murderer has been executed, not out of a desire for revenge, but because retribution is still an
important component of our social arrangements.
Some supporters of the death penalty also invoke Biblical authority from Old Testament, while
others reject the broad assertion that the death penalty is not a deterrent, and point out that,
given the high murder rate in Jamaica today, it borders on recklessness to remove the death
penalty from the books.
Given these and other arguments, I remain convinced that reasonable people may take different
views on the death penalty.
THE LAMBERT WATSON CASE
Having said that, I want to consider, again, aspects of the death penalty law against the
background of the recent decision of the Privy Council in the Lambert Watson case. Prior to the
decision of the Privy Council, Jamaica retained a mandatory death penalty system (as specified
in the 1992 amendment to the Offences against the Person Act). Under this system, anyone
convicted of capital murder would automatically be vulnerable to execution. Capital murder was
said to occur in a number of instances: murder of a member of the security forces, a correctional
officer, a judicial officer, or a person vested with constabulary functions, acting in the course of his
or her duties.
Capital murder was also said to occur upon the murder of a witness or party in a civil cause or
criminal matter, or that of a juror or Justice of the Peace acting in the execution of judicial
functions, or in the case of a murder committed in the course or furtherance of a robbery, burglary
or housebreaking, arson in relation to a dwelling house or any sexual offence.

It was also said to occur in the case of 'murder for hire' or in the case of murder in the course or
furtherance of an act of terrorism. Multiple murders also automatically prompted capital
punishment. When this approach was introduced into Jamaican law, it was intended to limit the
rigour of the pre-existing law, which provided for capital punishment in all cases of murder.
The 1992 amendment to the Offences against the Person Act was thus regarded as ameliorating
legislation, moving in the direction of those who believe that if the death penalty is to be retained,
it should only be kept for the most serious crimes, and for crimes that could undermine the
integrity of the justice system.
AMELIORRATING
Given this background, I am surprised by suggestions that somehow the State was in error when
it passed the 1992 amendment to the Offences against the Person Act. To suggest, for instance,
that this amendment was intended to protect political gunmen of the PNP or the JLP is simply
incorrect. Murder by such gunmen could either be capital murder (if it related to terrorism, if it was
part of multiple murders, if it was "murder for hire" and so on); no immunity was created for
partisan gunmen; nor was any special immunity created for police officers.
UNCONSTITUTIONAL APPROACH
It should also be noted that capital murder was applied to police officers and others in furtherance
of their duties as part of the scheme to uphold the integrity of the justice system. Finally, in the
Lambert Watson case, the Privy Council held that the approach taken to capital murder was
unconstitutional because of its mandatory nature. The court did not suggest that it is wrong for the
State to recognise that some forms of murder are more egregious than others; nor did the court
find that the death penalty itself is contrary to the Constitution. The Privy Council has, once again,
made it more difficult to hang a living man, but they have not ruled it out entirely 'yet', some
persons on both sides of the debate, may wish to add that dimension
Stephen Vasciannie is Professor of International Law, head of the Department of
Government at the UWI, Mona campus and consultant in the Attorney-General's chambers.