December 03, 2008

Death Penalty and CCJ - Dead issue?

The death penalty debate
Source: Jamaica Observer
Wednesday, December 03, 2008

The much-heralded "conscience vote" has now been held with the result of retaining the death penalty as enshrined in the constitution.

There have been proposals from the opposition party and others for a change in the method of execution to lethal injection, as a more humane method for terminating life. The US Federal Supreme Court recently ruled that lethal injection was not cruel and inhumane, and its use should continue in the administration of the death penalty.

The method of execution was not generally questioned by observers because it is solely extinguishing the life of a convicted murderer that provides justice for the victims and their families. The finality of execution which is irreversible was complained of, but failed to acknowledge that the same absolute finality applies also to the victims.

The views in the media make it abundantly clear that after the extreme and exaggerated nuances are overlooked, the driving force behind the death penalty is to provide justice for those who were brutally killed and for their families. The death penalty provides equity through the application of the principles of justice by upholding the law of the land.

Capital punishment has been described as "cruel and inhumane". Consider a recent case when three children were savagely murdered in one evening. The last victim, a young girl, pleaded with her attacker not to kill her. His response was to disembowel her! That illustrates by any standard, "cruel and inhumane" treatment in the extreme, deserving the full punishment available under the law.
Do we wait for the advent of Republican status before dispensing with the UK Privy Council as the final arbiter, or would Jamaica accept the CCJ as the final court of appeal?

Universally there was a large measure of agreement in the media, concerning three areas in the criminal justice system requiring remedial action before executions should be resumed. First, reform of the JCF by eradicating corruption. ACP Justine Felice in charge of this task has had considerable success by concluding approximately 50 cases since January. Merging the JCF with the JDF has not found favour for many varied reasons, but what still needs to be considered is possibly transforming the JCF into a paramilitary organisation to better address the terrorist activities of our times.

Also related to the reform of the police force is the necessity for a state-of-the-art forensic laboratory and passing the crime bills before Parliament into law without further delay.

The provision of a forensic laboratory would surely find traction with major donors, and should be pursued with the utmost despatch. Likewise, the creation of Special Weapons, Arms and Tactics (SWAT) Teams to operate in the cities requiring urban close-quarter tactics to provide such skills as house clearing and hostage resolution situations. This would reduce civilian casualties who become victims labelled "collateral damage" because of indiscriminate shooting during engagements with the security forces.

The second major concern expressed was the possibility of jury error, by convicting an innocent man. Much has been said about the release of convicted men on death row in the US, through the use of DNA evidence which proved their innocence. Conversely, the same evidential DNA technique that proved the innocence of the men in the US can be applied proactively in Jamaica, to confirm the identity of the accused related to the crime, in the event of a guilty verdict.

The possibility of jury error resulting in the conviction of an innocent man would therefore be considerably reduced. This technology could be sought from the US authorities, if it is not yet available in Jamaica. It should be mentioned that only relatively few murder cases now warrant capital punishment, which is no longer mandatory for certain homicides such as crimes of passion. This has resulted from a UK Privy Council directive.

The third area of concern voiced in the media was the oft-heard cry: "Fix the justice system!" With the explosive increase in the homicide rate, a separate criminal court could sit when needed, exclusively to deal with cases involving capital murder. It would be exemplary if our Court of Appeal could be similarly equipped to the standard of the Caribbean Court of Appeal in Trinidad, which exhibits the latest equipment and technology that has introduced a superior level of case management in the work of the judiciary. Again the government should prevail on donors for funding as part of capacity-building development assistance in the free trade area negotiations being conducted with our major trading partners. The Caribbean Development Bank could also be a possible alternative source of finance.

Realistically, it is unlikely that any executions can take place for the next 24 months or so because of legal "red tape" which has to be severed locally and internationally before capital punishment can be resumed. Jamaica is signatory to a number of human rights agreements that have to be carefully navigated to avoid any possibility of a breach. There has to be a decision on future referrals to the UK Privy Council. Do we wait for the advent of Republican status before dispensing with the UK Privy Council as the final arbiter, or would Jamaica accept the Caribbean Court of Justice (CCJ) as the final court of appeal? This second course of action is strongly supported by the judiciary as seen at the CCJ seminar held in Kingston during October.

Alternatively like Barbados, a constitutional amendment requiring a two-thirds majority in Parliament could be sought. The eight convicts on death row are likely to have their sentences commuted to life in prison in compliance with the Pratt and Morgan precedent as they have probably been incarcerated for five years or more.

We take this opportunity to congratulate Dr Carolyn Gomes of Jamaicans for Justice, a dedicated and sincere human rights advocate, on being bestowed with the United Nations Human Rights Award for 2008 - a high honour for both herself and Jamaica.

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