On The Other Hand - Mandatory death penalty

Published on: 5/23/2010. Source: Nation News

BY PETER LAURIE

LET'S CLEAR UP some misconceptions about Barbados' mandatory imposition of the deathpenalty for murder and the Inter-American Courtof Human Rights.

First, the facts.

The American Convention On Human Rights hastwo competent organs to ensure that the provisions of the convention are respected: the commission,which investigates alleged abuses of human rights,and the court, which is the authoritative interpreterof the convention.

Barbados signed the convention in 1978, ratifiedit in 1982, and accepted the jurisdiction of the court in 2000, thereby undertaking to abide by the convention and the court's rulings.

Article 4 of the convention states that "every person has the right to have his life respected . . . .No one shall be arbitrarily deprived of his life".

Nevertheless, Article 4 allows states parties that have maintained the death penalty to apply it, subject to certain restrictions.

The issue between the court and Barbados, however, is not the death penalty.

The issue is the finding of the commission, agreed to by the court in a landmark judgment in June 2002, that mandatory imposition of the death penalty for murder constitutes an arbitrary deprivation of life and is therefore a violation of Article 4.

The argument of the commission and court, whether you agree with it or not, is straightforward and reflects a growing international consensus.

They maintain that because execution of the death penalty is irreversible, the state imposing the penalty must observe the strictest and most rigorous application of judicial guarantees to ensure those guarantees are not violated and a human life is not arbitrarily taken as a result. The mere existenceof these guarantees in a state is not enough.

One must be satisfied that the standards of these laws are rigorously applied in each and every case.

And here is the crux of the issue. The mandatory imposition of the death penalty on each individual guilty of murder "treats all persons convictedof a designated offence not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the death penalty".

Moreover, the judge is robbed of all discretionas to whether the death penalty is the appropriate punishment or not in the specific circumstancesof both the act and the offender. The judge is mandated to impose the death penalty, thus excluding both the possibility of determining individualized sentences arising from mitigating circumstances, and of creating a rational and proportional relation between the offender, the crime and the punishment.

Consequently the commission and the court have held that the imposition of the mandatory death penalty in such circumstances renders it an inhuman and unjust punishment, constituting a violationof Articles 4(1), 4(2), 5(1), 5(2), and 8(1) in relationto Article 1(1) of the convention.

Ironically, the mandatory imposition of the death penalty has led juries in the Caribbean occasionallyto acquit offenders accused of murder, even whenthere was a preponderance of evidence in favourof guilt, because jurors considered death to bean excessive punishment in the circumstances of the particular case.

Another irony is that if we did not havein our Constitution the "savings clause" that protects inhumane, colonial, laws from constitutional challenge, our own courts would undoubtedly find mandatory imposition of the death penalty unconstitutional.

The Government of Barbados has a choice:

Do the right thing, abolish mandatory sentencing and trust in the wisdom of our judges to imposethe appropriate sentence.

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 centrefor tourism and international business.

Or do the ignoble thing, listen to the yahoosamong us, denounce the convention and make Barbados look like some poor-rakey turd-worldstate insecure in its sovereignty.

* Peter Laurie is a retired diplomatand a commentator on social issues.