by Larry Smith
Let the punishment be equal with the offence.
"In the end, it is the poor who are selected to die."
-- Sister Helen Prejean
At a College of the Bahamas seminar recently, I sat next to a first-year law student who had a degree in criminal justice from an American college. When asked what should be done to address crime, the first word out of her mouth was "hanging".
And it appears that most preachers are also firmly in favour of the death penalty, although it flies in the face of everything written in the New Testament. Indeed, some would have no objection to turning the clock back centuries and making executions into a public spectacle.
"Criminals now have no fear of the law and no regard for human life, and we can no longer remain philosophical about sending the strongest message to the criminal element in our society," said the chairman of the National Advisory Council on Crime, Bishop Simeon Hall, recently. "we need to hang a few."
But there are strong arguments that the death penalty in and of itself does not deter crime. Many experts believe such a punishment is only effective if it is applied with certainty and without delay. And the gross inefficiency of our judicial system blunts any perceived connection between the crime and the penalty.
According to one report that examined capital punishment in Trinidad and Tobago, "the evidence suggests that the problem faced by law enforcement is to increase the certainty of punishment. The occasional and long delayed mandatory sentence to death is very unlikely to add weight to the deterrent effectiveness of a poorly enforced criminal law."
This report concluded that "the problem of high and escalating lethal violence in Trinidad and Tobago cannot be ‘fixed’ by executing occasionally a tiny fraction of those who commit murder. The solution must lie in tackling the economic and social conditions that have given rise to the problem, and the cultural factors that support the use of deadly force as a means of resolving disputes."
Much the same could be said here, where the political class is probably more sophisticated than the wider public on the hanging issue. For example, both Hubert Ingraham and Perry Christie have found it politic to support hanging during periods of public outcry against crime, but many suspect they are not expressing their true feelings.
Currently, the official position is that capital punishment is the law of the land and the law will be allowed to take its course. But the argument is made by some that this is doublespeak. According to defense lawyer Wayne Munroe, "if the government was serious it would know what is open to litigation on the death penalty and move to engage these points.
"If you want to hang you have to take positive steps to limit appeals. You need legislation prescribing uniform sentencing, as was recommended by the 1999 criminal justice task force, but the politicians don't have the will to do it . They are just stringing the public along."
in 2006 FNM cabinet minister Carl Bethel said much the same thing when he was in opposition, noting that if then Prime Minister Perry Christie wanted capital punishment (as Mr Christie claimed he did) "he would have to bring some laws to parliament." Presumably that is still the case, but we don't see any such laws emanating from the Ingraham government either.
There were 17 murderers on death row in 2006, when the Privy Council abolished the mandatory death sentence in the Bahamas. This meant that every prisoner had to be re-sentenced. But since then only four cases have been reviewed, according to National Security Minister Tommy Turnquest, and they have all been appealed, so there will be no hangings anytime soon.
"We will follow (the Privy Council rulings) that the death sentence is not mandatory and that there has to be a sentencing hearing for all those who were sentenced to death without such a hearing," Tunquest told me. "During the re-sentencing, the judges wil be looking at the cases again, as well as the length of time already served, and they are passing a variety of different sentences. There is no need to change the laws in my view."
According to Turnquest, "the four cases that have had hearings where the death penalty has been handed down again are all now under appeal and therefore the government cannot carry out the death sentence. Every citizen is entitled to exhaust all avenues of appeal. Once the appeal at any level is dismissed the government can proceed. In some instances, if the government doesn't proceed, the convict would not move forward with appeals to the next level."
Fifty men have been hanged here since 1929. Five under the previous Ingraham administration; 13 under the Pindling government; and the remainder between 1929 and 1967. The last man to be hanged was David Mitchell, in January 2000. Another man was scheduled for execution at the same time, but he committed suicide first.
Our annual murder rate last year was 21 per 100,000 - in the same league as Russia. And there have been about a thousand murders in the Bahamas since 1990, not including attempted killings or causing grievous harm. A year ago, former police prosecutor Keith Bell said the justice system itself was the biggest obstacle to crime reduction, and the only way to address it was for politicians of all parties to agree on a priority agenda for legal reform.
"One third of accused murderers are out on bail, including those accused of up to 10 murders," Bell said. "The statistics and reports are all there. We know what is happening. The only question is who is going to be next. Why are we still charging people with murder when we know that capital punishment cannot be applied? We should amend the law to provide for degrees of killing to make it easier to convict, and implement a system of plea bargaining."
Many people argue that there needs to be clarity as far as the death penalty is concerned, and few would deny that comprehensive legal reforms to address our skyrocketing crime rate are long overdue. In fact, they have been prescribed by any number of experts and consultative bodies since at least the 1990s.
But in my view, we should be skeptical about the death penalty for two main reasons - the certainty of miscarriages of justice, and the historical use of executions by those in power for the suppression of dissent. Leaders of slave and peasant revolts present important examples in this regard. And as Amnesty International notes, capital punishment is “the ultimate, irreversible denial of human rights.”
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. 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.
Until the late 19th century, the “long drop” (as hanging was known) was the penalty for hundreds of crimes - including shoplifting, poaching and “being in the company of gypsies”. But 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.
Perhaps the best (or worst) argument against the death penalty is the certainty that innocent people will be executed, and there is no possible way of compensating them for this miscarriage of justice. 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 also 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.
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.
By most accounts it is highly unlikely that a handful of executions following years of delay will have any real effect, particularly on the people whom we would most like to be deterred - like serial killers, sadistic rapists and drugs barons. And these particular criminals are the least likely to be executed anyway. The serial killers will be found insane and the drug barons will use any means to avoid conviction, including witness intimidation.
So, if we are really serious in our desire to reduce crime through harsher punishments alone, we must be prepared to execute every criminal who commits a capital crime irrespective of their sex, age (above the legal minimum) alleged mental state or background. Defenses and appeals must be limited by statute, and there can be no reprieves.
Executions must be carried out without delay and with sufficient publicity to get the message across to other similarly minded people. For capital punishment to really reduce crime, everyone of us must realise that we will personally and without doubt be put to death if we commit particular crimes, and that there can be absolutely no hope of reprieve.
There is also the argument that if we continue to do little or nothing about persistent juvenile offenders, and then apply the death penalty consistently, we may be consigning many to their death at the age of 18, having never previously given them any discipline whatsoever. In this scenario, execution will be the first and last taste of discipline a person gets in our society.
The 2006 Privy Council ruling that abolished the mandatory death sentence brought the Bahamas in line with evolving world 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.
But many still believe there is no substitute for the best defense. Capital punishment not only forever bars murderers from killing again, it offers some retribution for their terrible crimes. It would also save money that could, perhaps, be spent on better things than keeping killers in prison.
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."
If that is the case, it is incumbent upon our leaders to speak clearly on this issue and then do what is necessary to achieve the desired outcome.