by Larry Smith
Let the punishment be equal with the offence.
"As I read the New Testament, I don't see anywhere in there that killing bad people is a very high calling for Christians. "
James Park, former execution officer, San Quentin Prison, California
"The death penalty is a poor person's issue. Always remember that: after all the rhetoric that goes on in the legislative assemblies, in the end, when the deck is cast out, it is the poor who are selected to die ."
Sister Helen Prejean
“The recidivism rate for capital punishment is zero. No executed murderer has ever killed again. You can't say that about those sentenced to prison, even if you are an abolitionist.”
Ever since the 7th century BC, when Greece’s Draconian legal code made death the only penalty for every crime, the world has been moving away from capital punishment.
This is despite the fact that every country is still ready and willing to kill thousands and even millions of human beings to defend themselves or to exert their political will.
More than a hundred countries have abolished the death penalty in law or in practice - the United States and Japan being the only developed democracies that still carry out judicial killings. There are currently over 3,000 people waiting to be put to death in the US.
In the ancient world, death sentences would be carried out by extravagant methods like crucifixion, drowning, burning, boiling, stoning, beheading, disembowelment and impalement.
But about 1500 years ago, hanging became the preferred method of execution in Britain, from where we derive our legal code. Until the late 19th century, the “long drop” (as it was known) was still the penalty for hundreds of crimes - including shoplifting, poaching and “being in the company of gypsies”.
These days, the death penalty is reserved for the most serious offences – like aggravated murder or treason - and capital punishment is viewed by most countries as an exception to be accompanied by stringent safeguards. Amnesty International regards it as “the ultimate, irreversible denial of human rights.”
No one has been executed in Britain since 1964. The following year the British parliament abolished capital punishment for murder, and in 1998 outlawed it for all crimes - both civilian and military, although there is still a strong current of opinion in favour of capital punishment.
Perhaps the best argument against the death penalty is the certainty that innocent people will be executed. In fact, one of the last people hanged in Britain was a mentally handicapped teenager who was later awarded a posthumous pardon.
In America, most of those executed could not afford a trial lawyer. And studies have shown the death penalty to be racially biased. For example, in Florida, experts say a black man convicted of killing a white man is five times more likely to receive a death sentence than a white man convicted of killing another white man.
A study of hundreds of criminal cases in which the convicted person was exonerated suggests there are thousands of innocent people in American prisons today. And the leading causes of wrongful convictions for murder were false confessions and perjury by co-defendants, informants, police officers or forensic scientists. We can only imagine how many similar unfortunates are locked away at Fox Hill after being processed by our courts and police.
Despite the clear risk that this could happen to any of us at any time, most Bahamians and other CARICOM nationals share a biblical attachment to execution as a response to violent crime. But judges have been chipping away at the practice for years.
In 2001, the Eastern Caribbean appeal court deemed the automatic death penalty “cruel and inhuman punishment.” In 2002, the Privy Council in London – still the highest court of appeal for most CARICOM countries – upheld that judgment. In 2004, the Privy Council ruled against the mandatory death sentence in Jamaica.
Courts can still impose the death pentalty in countries where mandatory sentencing has been struck down. But the Privy Council has also ruled that keeping a condemned man on death row for more than five years is cruel and unusual punishment. And this has halted executions in many Caribbean countries.
“The difficulty was that death row inmates would appeal to international human rights organisations that took years to render a decision,” explained Trinidad newspaper editor Therese Mills. “So a convicted killer could keep raising appeal after appeal, knowing that he could not be hanged after five years were up.”
Courts have also commuted death sentences in the expectation that prisoners would be on death row for an inhumanely long time waiting for their appeals to be heard. This issue is one of the chief reasons why CARICOM agreed to set up the Caribbean Court of Justice to replace the Privy Council as the region’s final court of appeal.
The CCJ was inaugurated a year ago to serve as a tribunal for disputes arising from the Caribbean Single Market and Economy and also to be the region’s highest appellate body in civil and criminal matters. Only Barbados and Guyana have so far passed the necessary legislation, but it is expected that other countries will sign on over time.
The Privy Council ruling earlier this month abolishing the mandatory death penalty in the Bahamas was the result of an appeal brought on behalf of two murderers who have been on death row at Fox Hill for six and eight years respectively. The ruling means that the sentences of as many as 30 prisoners currently on death row will now have to be reviewed by the Supreme Court.
"The implications for future murder trials will be the introduction of a completely new set of procedures restricting the imposition of the death penalty in the first instance,” said Maurice Glinton, one of the Bahamian attorneys who worked on the appeal. “The Privy Council has gone some way towards ensuring that the law and practice in the Bahamas conforms with international human rights standards in the application of the death penalty. "
Responding to public opinion, Attorney General Allyson Gibson quickly said she would do “everything in my power to ensure that all sentences, including the death sentence in appropriate cases, are carried out expeditiously."
Meanwhile, the Privy Council warned that “Should the Supreme Court, on remission, consider sentence of death to be merited in either case, questions will arise on the lawfulness of implementing such a sentence.” This was clearly a reference to the fact that the two men directly affected by the ruling had been on death row longer than five years and an indication that their sentences would have to be commuted.
All this has led some to call for a rethinking of our relationship with the Privy Council. As one government-connected editorialist put it: “The irony is that the Bahamian people rejected further relations with CARICOM last year...that included the Caribbean Court of Justice. Now they don’t have that court, and it is clear that the Privy Council which sits in Britain, and has mainly British judges, is intent on doing away with capital punishment in these former colonies.”
But according to lawyer Fred Smith of the Grand Bahama Human Rights Association, “We should not even begin to debate getting rid of the Privy Council. It remains our conduit to judicial determination of issues in the Bahamas based on international human rights norms and progressive thinking, for the most part.
“If we abolish it we will be blocking our global artery, and we will risk a series of jurisprudential strokes which may develop from myopic, insular, nationalistic and cannibalistic judicial thinking - especially if we keep importing judges from the Caribbean who have no independence and who remain in the Bahamas at Immigration's will.”
In response to the recent ruling, Amnesty International urged the Christie administration to abandon state killings – an unlikely prospect in the current political climate, where even churchmen are among the most vociferous proponents of hanging.
“The majority of the world’s countries no longer have the death penalty in law or practice and only a small minority actually carry out executions,” Amnesty said. “The government of the Bahamas should take this chance to join the global trend away from use of the death penalty.”
Well, it is true that the Privy Council ruling brings the Bahamas into line with evolving international standards. The United Nations says that a mandatory death penalty, which precludes the possibility of a lesser sentence regardless of the circumstances, is inconsistent with the prohibition of cruel, inhuman or degrading treatment or punishment.
Sixteen people have been executed in the Bahamas since Independence in 1973 - six in the past 10 years. The last execution here was carried out in January 2000, but mandatory death sentences continue to be handed down, so clearly there is a need to rationalise the system.
After the fatal stabbing of a guard during a prison escape in January , there have been widespread public calls for the resumption of hangings. And Prime Minister Perry Christie has found it politic to mouth support for this.
Today, capital punishment is officially sanctioned by most American states, as well as by the US federal government. Critics say the homicide rate in those states with the death penalty is almost double the rate in states without the death penalty.
In 1966 Canada limited the death penalty to the killing of on-duty police officers and prison guards. Ten years later, the Canadian parliament abolished capital punishment for civilian crimes and in 1998 it was abolished for all offences. The last execution in Canada was in 1962.
The murder rate in Canada has steadily declined since abolition. And Canadian research on the deterrent effect of punishment has reached the same conclusion as the overwhelming majority of US studies: the death penalty has no special value as a deterrent when compared to other punishments.
But according to Lord Denning, one of the most celebrated British judges of the 20th century, “It is a mistake to consider the objects of punishments as being a deterrent or reformative or preventive and nothing else...The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrongdoer deserves it, irrespective of whether it is a deterrent or not."
This is one of those very complex and emotionally charged issues that cuts to heart of how we run our country. Some think you can measure enlightenment by how we treat the most vulnerable sectors of society - women, children, minorities and prisoners.
But others believe there is no substitute for the best defence, which is capital punishment: “It not only forever bars the murderer from killing again, it also prevents parole boards and criminal rights activists from giving him the chance to repeat his crime.
You make the call.