Death Penalty and Human Rights

Protection of Fundamental Rights: The Death Penalty

• The right to life is considered the most fundamental of all human rights
• Ban Ki-Moon stated that taking a life is too absolute and irreversible, even when backed by legal process

International Stance

• The Universal Declaration of Human Rights recognizes each person's right to life and states that no one shall be subjected to torture, cruel, inhuman, or degrading treatment or punishment
• Article 6 of the International Covenant on Civil and Political Rights (ICCPR) guarantees the right to life
• The ICCPR allows for the death penalty in countries that have not abolished it, but sets out prohibitions and restrictions on its use
• Article 6(6) of the ICCPR states that nothing in the article should be invoked to delay or prevent the abolition of capital punishment by any State Party to the present Covenant
• The UN Human Rights Committee has observed that Article 6 refers generally to abolition in terms which strongly suggest that abolition is desirable
• All measures of abolition should be considered progress in the enjoyment of the right to life
• Article 4 of the American Convention on Human Rights allows for the imposition of the death penalty in restricted circumstances
• Article 4 urges countries that have abolished this punishment not to reintroduce it

Historical Context

• The British presented it as a model for all colonies on independence
• Influenced by the European Convention on Human Rights (1950) and the Universal Declaration on Human Rights (1948)
• The Privy Council influenced the development of the common law on human rights
• Saving Clauses Rule-preservation of rules in place: if a law existed prior to independence it remains valid after independence even if found by the Court to be in conflict with the constitutional rights and freedoms
• Influence of International Treaties by the UN, OAS

Fundamental Rights

• Right to life, liberty, security, enjoyment of property, and to not be deprived thereof except by due process of law
• Right to equality before the law and the protection of the law
• Right to respect for private and family life
• Right to equality of treatment from any public authority
• Right to join political parties and to express political views
• Right of a parent/guardian to provide a school of his own choice for the education of his child or ward
• Freedom of movement
• Freedom of conscience and religious belief and observance
• Freedom of thought and expression
• Freedom of association and assembly
• Freedom of the press

The Death Penalty Around the World

• Belarus is the only country in Europe and Central Asia to execute people
• Out of the 54 member states of the African Union, an average of five countries a year are known to have implemented death sentences in recent years
• In Asia and the Middle East, which accounts for most of the world's executions, there are signs of progress towards reducing the use of the death penalty year by year
• In the Americas, the English-speaking Caribbean, Cuba, Guatemala, Suriname and the USA retain the death penalty in law
• The vast majority of countries in the region have either completely abolished the death penalty or retain it only for exceptional crimes (Bolivia, Brazil, Chile, El Salvador and Peru)
• The USA is the only country that continues to execute people, although even there, four states abolished the death penalty between 2007 and 2012
• Countries of the Caribbean are facing a worldwide trend
• While an increasing number of countries are turning their backs on the death penalty, Antigua and Barbuda, the Bahamas, Barbados, Belize, Dominica, Guyana, Grenada, Jamaica, St. Lucia, St. Kitts and Nevis, St. Vincent and the Grenadines, and Trinidad and Tobago continue to support its retention
• The death penalty remains mandatory for murder in Barbados and Trinidad and Tobago and for treason in Barbados
• Barbados and Trinidad and Tobago Judges are unable to take into account the defendant's personal circumstances when passing sentence on people convicted of murder violating international standards,.
• In 2009, the Barbadian authorities pledged to abolish the mandatory death penalty in order to comply with two Inter-American Court of Human Rights landmark judgments
• On 2 October 2011, the Attorney General and Minister of Home Affairs was reported in the local press as saying that he expected necessary legislative changes to be finalized by the end of 2011; the proposed legislation remained pending before Parliament
• By mid-2012, 140 countries had abolished the death penalty in law or practice, and the global trend is unmistakable
• Eight countries had removed capital punishment from their legislation for all crimes in 1945; that number had risen to 97 by 2012
• The UN General Assembly passed resolutions in December 2007, 2008, and 2010 calling upon member states to establish a moratorium on executions with a view to abolishing the death penalty
• Several countries in the Americas region have reaffirmed their commitment to the abolition of the death penalty by signing and ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), aiming at the abolition of the death penalty, and the Protocol to the American Convention on Human Rights to Abolish the Death Penalty
• Caribbean countries have consistently opposed such international initiatives for worldwide abolition and continue to do so
• While the world is moving away from the death penalty, decision-makers in ESC countries continue to present the death penalty as a solution to crime
• Many countries are failing to effectively address the root causes of rising violent crime and overhaul ailing, inadequate criminal justice systems
• Some governments in those countries have even proposed legislation aimed at facilitating the implementation of the death penalty in recent years
• Arguments that the death penalty is necessary to reduce violent crime are not supported by the facts
• Scientific studies have consistently failed to find convincing evidence that the death penalty deters crime more effectively than other punishments
• The debate on capital punishment in the Commonwealth Caribbean is driven by a variety of factors
• There has been an alarming rise in homicide rates in the region over the last decade or so
• The UN Office on Drugs and Crime (UNODC) recorded appalling murder rates for CARICOM States for 2010 in its first-ever global study on homicide
• Jamaica was highest at 52.1 murders per 100,000 persons, followed by Belize with 41, St. Kitts and Nevis at 38, Trinidad and Tobago 35.2, The Bahamas 28.0, and Saint Lucia 26.2. Guyana came in at 18.4
• Alarming homicide rates are fueled by gang-related killings, the economic and financial crisis that has gripped the World, and drug trafficking, while homicide rates are decreasing in many countries, mainly in Asia, Europe and Northern America

The Death Penalty and its Impediments

Murder Rate

• The main argument for the death penalty in Jamaica turns on the country's high murder rate
• Pro-death penalty sentiment runs strongest when there are high profile murder cases, and where there is a spike in heinous crimes
• Jamaica's murder rate is invariably at a frightening level, many persons argue that the society needs an effective deterrent and see capital punishment as that deterrent, or hope that it can be

The Majoritarian Argument

• There is substantial opposition to the death penalty among the intelligentsia and in some church communities
• Most Jamaicans wonder why the life sentece is not carried out, given the rampant and callous disregard for life that is daily in evidence
• The majoritarian perspective has influenced some Parliamentarians who voted in 2008 to retain capital punishment
• In a democratic polity which attaches some importance to the majority will, if Parliamentarians openly defy the popular view on the highly charged matter of the death penalty, this could have obvious electoral consequences

Politicians - Jamaica

• The politicians are not simply looking over their shoulders at the majority will, though some may well be
• In the 2008 Parliamentary vote in the House of Representatives, 34 members voted for retention of capital punishment, while 15 were against it; in the Senate, the division was 10 to 7, with the majority in favor
• In 1979, when an earlier conscience vote was taken, 24 members opted to retain hanging as against 19 who opposed it
• As far as the ultimate sanction is concerned, not all Parliamentarians regard the popular will as decisive
• The majority will may be a factor in the decision, but cannot be the only consideration, and Parliamentarians have a duty to consider all the arguments before reaching their conclusion

Revulsion

• There are at least two additional arguments that are appealing to some citizens across the Caribbean
• The penalty serves to register the society's sense of revulsion to murder
• Punishment must reflect not only deterrence and the prospect of rehabilitation; it must also emphasize that society rejects murder, and is determined to fight it with decisive measures
• This view is sometimes associated with Lord Denning, among others, and is offered partly in response to abolitionists who maintain that the death penalty is not a deterrent

The Bible

• Many Jamaicans support the death penalty by reference to biblical assertions
• Reference is often made to Mosaic principles relating to "a life for a life"; and in this context, the lex talionis, as set out in Leviticus 24 (verse 17), is occasionally called in aid: "Whoever kills any man shall surely be put to death . . ."
• The approach based on the lex talionis is not convincing as Old Testament strictures relating to a life for a life are themselves linked to disfigurement as a form of punishment
• The relevant passage in Leviticus 24 on a life for a life also states that: "If a man causes disfigurement of his neighbour . . so shall it be done to him - fracture for fracture, eye for eye, tooth for tooth."
• The pronouncements on a life for a life will not present literal guidance in sentencing policy for modern Jamaica,
• If the laws of Caribbean states follow Biblical precepts, the life for a life approach encounters difficulties with the New Testament since it does not support the brutal retaliation

Irreversible Error

• Opponents of the death penalty face an uphill struggle in Caribbean society
• Opponents of the death penalty argue based on the possibility of mistake
• The justice system cannon provide the assurance that it will always present the correct person at the gallows
• In some cases in the United States of America, DNA evidence has been used to demonstrate the innocence of several persons on death row; and in other instances, one wonders if the execution of persons is driven more by the desire for catharsis than by certainty as to the identification of the murderer

Morality

• Some opponents of the death penalty also condemn the sentence on moral grounds
• The death penalty is unquestionably wrong, barbaric, pointless and must be opposed by all lawful means.
• Amnesty International has presented this view and it recently received strong support from United Nations Secretary General Ban Ki Moon.
• That the death penalty is "simply wrong" declaring that Secretary Genera! emphasized that: “I will never stop calling for an end to the death penalty(United Nations, November 4, 2015).

International Law

• The Jamaican position was articulated in its Statement on the subject to the Third of the 62nd Session of the General Assembly on 12 December 2007 where Jamaica maintained that:
• The Universal Declaration of Human Rights of 1948 does not expressly or implicitly prohibit the death penalty
• Several States which supported the Universal Declaration of Human Rights accepted that everyone has the right to life, but this has not prevented these States from retaining the death penalty
• The International Covenant on Civil and Political Rights (the ICCPR) (1966), which is binding on Jamaica does not expressly or implicitly prohibit the death penalty
• The ICCPR expressly states that countries which have not abolished the death penalty should adhere to certain preconditions before carrying out executions.
• As long as these preconditions are satisfied, the penalty is allowed in International Law
• There is a treaty which is open to all States that wish to abolish the death penalty, known as the Second Optional Protocol to the ICCPR
• As long as a State does not ratify this treaty, the State will not be legally required to terminate executions
• Jamaica has not ratified this treaty
• The death penalty is an internal matter for each State and Jamaica, in keeping with its sovereignty and self determination, reserves the right to carry out the death sentence
• This is true for several countries int he world

The Main Cases

• Laws relating to the death penalty developed with reference to the guarantee against inhuman or degrading punishment or other treatment

Cases

• Pratt and Morgan v. The Attorney General of Jamaica and Another (1993): the Privy Council held that if a person sentenced to death remained on death row for more than five years, it was to be presumed that it would be inhuman or degrading punishment or treatment to execute that person
• The Pratt and Morgan decision was the subject of considerable criticism largely on the basis that the Privy Council did not appear to appreciate the callous disregard for life evident in certain countries of the Region
• Neville Lewis et al v. The Attorney General of Jamaica (2000): The Privy Council relied on the Pratt Morgan decision, but appeared to go further by treating the five-year presumption as a rule
• Thus, if a person sentenced to death remained on death row for more than five years, the sentence of death was to be automatically commuted to life imprisonment
• The Jamaican Charter of Fundamental Rights and Freedoms has overturned the five-year approach to delay adopted by the Privy Council in the Pratt and Morgan line of cases
• Therefore, even if the period between sentencing and execution exceeds five years, the convict may be executed in Jamaica, and Barbados has also overturned the Pratt and Morgan approach to the question of delay
• Reyes v. R, R. v. Hughes and R v. Fox 2002: The Privy Council struck down the mandatory death sentence as applied in Belize, St. Lucia and St. Kitts-Nevis
• The Privy Council held that the mandatory death sentence - an approach in which the judge had no discretion in capital murder cases - amounted to inhuman or degrading punishment or treatment
• The reasoning of the court was that the mandatory death sentence did not allow judges to treat murder convicts as individuals for purposes of sentencing
• Lambert Watson v. R: The Privy Council followed Reyes, Hughes and Fox where the Privy council held that Jamaica's pre-Independence death penalty law was saved in the post-Independence period
• The Privy Council held that it was not saved because Parliament had amended Jamaica's death penalty law in 1992 meaning that it can be struck down as inhuman
• Charles Matthew v. The State and Boyce and Joseph v. R: The Privy Council held that the mandatory death penalty as applied by these two countries was saved and had not been amended since the date of Independence in each
• Death penalty is mandatory in those countries (Tobago and Barbados) and the judge will have discretion in others
• Daniel Dick Trimmingham v. R: The Privy Council held that the death sentence should be reserved for the "worst of the worst" and the "rarest of the rare" murders
• The court also held that the death sentence should be confined to instances in which there was no possibility of redemption for the murderer
• Council found that it did not come within the categories of "worst of the worst" and "rarest of the rare"