Murder by degrees coming?
ATTORNEY GENERAL Freundel Stuart’s strong hint of a possible referendum on the death penalty echoed the response of former Barbados Labour Party (BLP) Attorney General Dale Marshall.
Marshall, in response to Stuart’s jibe in Parliament that the BLP Government in 2000 had signed this country on to the ICHR, said although the BLP was indeed responsible, said he felt if there were going to be any editing of the Barbados Constitution in order to prevent the death penalty from being mandatory on an individual, then the Barbadian public should have some say in this matter, as Barbadians generally were in favour of the death penalty as it is.
Their predecessor as Attorney General, Sir David Simmons, who recently retired as Chief Justice, is as strong a supporter of the death penalty today as he was as an active politician for the BLP.
“There are some types of crime which are so heinous that only the maximum penalty will suffice to do justice,” Sir David told an interviewer recently.
“My personal position is probably a minority among academics and human rights advocates, and though I am a strong advocate of human rights myself, I draw the line in respect of murder where there is no dispute as to who committed the murder.
“I have always felt that the state should reserve to itself the right to take the life of a criminal whose conduct outraged the sensibilities of the society.”
Sir David felt, however, it was “up to the Government and the policymakers to do a number of legislative” acts to make use of the death penalty more flexible, that is, a regime that allows for capital and non-capital murder.
Among those who have researched the issue, the mandatory death penalty is regarded as “a colonial legacy”.
“Under the common law of England,” noted Joanna Harrington, the University of Ontario assstant law professor, “death was the only sentence that could be pronounced by a judge upon a defendant who was convicted of murder, regardless of the nature of the offense or the particular circumstances of the offender.
“Through colonialism, this simple and undiscriminating rule was applied to many of Britain’s colonies, and upon independence, the nations of the Commonwealth Caribbean preserved the rule that was in place as part of their colonial inheritance.
“It is generally accepted, however, that the crime of murder embraces a range of offenses of widely varying degrees of criminal culpability. Many would agree that there is a difference in kind between a mercy killing, a crime of passion, a serial killing, and a murder for profit.
“It follows that having one form of punishment, automatically imposed without any consideration of the particular circumstances of the case, cannot address the problem of differential culpability.
“To state the argument at its plainest, not everyone who is convicted of murder should suffer death.”
Harrington added that to counter such concerns, a distinction has typically developed between “capital” or “first degree” murders, which carry a death sentence, and “non-capital” or “second degree” murders, which do not.
“Even within the United Kingdom,” she noted, “prior to abolition such a distinction was made, although possibly not soon enough to be passed along to the states of the Commonwealth Caribbean.
“Not until 1992 was such a distinction enacted into the law of a Caribbean state, with Jamaica being the first to restrict the death penalty to certain categories of murder. Jamaica’s lead was followed by some, but not all, Commonwealth Caribbean states, although all retained the mandatory or automatic nature of the death penalty in the category to which it was applied, thereby barring any presentencing consideration of mitigating factors.”
Barbados signed the American Convention on Human Rights in 1978, ratified it in 1982, and accepted the jursdiction of the court in 2000.
Article 4 of the convention recognises the right to life and restricts the application of the death penalty.
The protocol to the convention states, inter alia:
• “That everyone has the inalienable right to respect for his life, a right that cannot be suspended for any reason;
• “That the tendency among the American States is to be in favor of abolition of the death penalty;
• “That application of the death penalty has irrevocable consequences, forecloses the correction of judicial error, and precludes any possibility of changing or rehabilitating those convicted:
• “That the abolition of the death penalty helps to ensure more effective protection of the right to life;
• “That a international agreement must be arried at that will entail a progressive development of the American Convention on Human Rights, and
• “That States Parties to the American Convention on Human Rights have expressed their intention to adopt an international agreement with a view to consolidating the practice of not applying the death penalty in the Americas.”
Where are we today?
According to The Death Penalty Project, an international human rights organisation providing representation to individuals still facing the death penalty in the Caribbean and Africa, on November 20, 2007, in the case of Lennox Boyce, Jeffrey Joseph, Michael Huggins, and Frederick Atkins Boyce v Barbados, the ICHR found, in a landmark judgment, that the mandatory death sentence imposed on all those convicted of murder in Barbados violated the right to life and failed to limit the application of the death penalty to the most serious crimes.
The human rights body noted that the Government of Barbados had provided the ICHR with its Compliance Report on the actions the state proposed taking in order to adhere to the judgment of the court in this case.
Barbados agreed in principle to comply with the judgment in full, and the Death Penalty Project said it welcomed this decision.
The death penalty still exists in the Eastern Caribbean Supreme Court (ECSC) and St Kitts and Nevis in 2008 executed a man for killing his lover. However, there is no death penalty in the British Dependent Territories of the ECSC: Montserrat, Anguilla and the British Virgin Islands, because there is no death penalty in the United Kingdom and by Order in Council those territories cannot carry out executions.
Trinidad and Tobago and Guyana still retain the death penalty, but only execute in extreme cases.
Saul Lehrfreund and Parvais Jabbar, human rights lawyers and executive directors of the Death Penalty Project, stated, “The decision of Barbados to comply in full with the Orders of the Inter-American Court of Human Rights by taking measures to bring its domestic law into conformity with its international obligations to human rights is a ground breaking development in the implementation of international human rights standards.
“It sets an example to other states about fulfilling obligations to its citizens through the active enforcement of decisions of human rights institutions.”
Retired diplomat and social commentator, Peter Laurie, says the Government of Barbados has a choice:
“Do the right thing, abolish mandatory sentencing and trust in the wisdom of our judges to impose the appropriate sentence,” he wrote recently.
“This will preserve Barbados’ international reputation as a sophisticated, enlightened democracy fully observant of human rights – an invaluable asset in a country seeking to be a global centre for tourism and international business.
“Or do the ignoble thing, listen to the yahoos among us, denounce the convention and make Barbados look like some poor-rakey turd-world state insecure in its sovereignty.”