Calls for the resumption of hanging in Jamaica are made periodically, often at a time when there is an increase in the number of murders or in a period when there have been particularly vicious or high profile murders. People are understandably angry, afraid and frustrated and want to see something done to curb violent crimes and punish those who commit murder. The death penalty seems like an uncomplicated action to call for, a finite action with seeming immediacy to it. And so the call: reintroduce the death penalty; start hanging again.
The call has over time been made by people in various spheres across the society and the latest call has come from Minister of National Security Robert Montague, in a speech at a Jamaica Constabulary Force (JCF) Passing Out Parade and Awards Ceremony at the National Police College of Jamaica, at Twickenham Park, on April 29. (Click here for JIS release: Govt. to Wage Relentless War against Criminals)
Mr. Montague said the Ministry’s overall approach to creating safer communities is based on five key pillars – crime prevention through social development; situational prevention; effective policing; swift and sure justice processes; and reducing re-offending. (JIS – April 30, 2016)
It was while speaking about justice processes that Minister Montague made his comments about the resumption of hanging:
These first two pillars will be further buffeted (sic) by having an effective system in place that increases the risk to criminals of getting caught, to bringing more of them to justice and delivering sure, swift yet just punishment. It cannot be that persons feel comfortable to exact criminality but do not expect to be severely punished. Persons who intend to break the law must know that the punishment will be sure, swift and just. In that regard I have asked the Minister of State, Senator Pearnel Charles, Jr to consult with a number of agencies, including the Attorney General’s Office and the Ministry of Justice to determine if there are any legal impediments for the resumption of hanging in Jamaica.
(Click for transcript of Excerpt from Speech by Minister of Security Robert Montague – April 29, 2016 dealing with the five key pillars mentioned above.)
Last week, when I first heard an audio clip from the Minister’s speech during a newscast, his phrase “sure, swift and just” struck me. This is certainly something that is needed as part of the strategy to deal with violent crime.
Sure: What is the likelihood that someone who commits murder in Jamaica will be apprehended, tried and convicted for their crime?
The JCF’s Corporate Plan for 2015-2018 states that for the period 2009- 2014, “The combination of improved investigative capabilities and the application of technology have paid rich dividends, which resulted in a 41 percent cleared-up rate for murder; 72 percent for aggravated assault; 41 percent for shooting and just below 50 percent for rape.” In a 2013 article in the Jamaica Observer, then DCP in charge of crime (now Commissioner of Police) Carl Williams explained the meaning of “cleared-up” in the Jamaican policing context:
“Clear-up rate of murders are a little below 50 per cent right now, but my mission is to ensure that we get it above 50 per cent for murders, so we may ensure that a person is less likely to get away with murder than to be out there walking free to commit other murders,” Williams said.
Noting that the clear-up of crimes is the clearest measure of effectiveness of investigators or detectives, Williams — in clarifying what is meant by the term — noted that in some countries a crime is cleared up when the police identify the suspect. However, this is different for Jamaica as Williams explained that clearing-up of a crime not only occurs when the suspect is identified but when he/she is arrested and charged following a process of investigation.
“A crime may also be cleared up if the person responsible for the crime is unavailable for arrest and prosecution by virtue of the fact that he is dead or in custody in another jurisdiction,” Williams further explained. (Jamaica Observer – Dec 4, 2013)
According to the JCF, the cleared-up rate for 2015 was 55%, which indicates an improvement in their figures, but still means there is a great likelihood that someone who commits murder will not even face prosecution for the crime.
There is an even more remote likelihood that a person who commits murder will be convicted, as the conviction rate for murder in Jamaica is cited as 5%.
So we do not have a sure system. If there is a 95% chance that you will never be convicted, it doesn’t much matter whether the sentence is hanging or life imprisonment. In fact, what has been shown to have the greatest deterrent effect is the likelihood of being apprehended and convicted for the crime, not whether the punishment will be the death penalty.
Swift: How quickly is a person who has been charged with murder likely to be tried?
Long delays are the norm in our justice system and this has been so for decades. A March 31, 2016 Gleaner article contained this information:
There were 522 cases on the court list at the start of the Hilary term in January, and, according to Director of Public Prosecutions (DPP) Paula Llewellyn, 127 of them are five years or older – all murder cases.
Llewellyn, who was speaking at the start of the Easter term yesterday, said 96 of these cases are down for trial during this term and that her office is ready to proceed with 51….
According to Llewellyn, 526 cases are on the Circuit Court list for this Easter term. That number includes the 504 cases that were rolled over from the previous term, 328 of which were for murder. (Daily Gleaner – March 31, 2016)
There have been cases which have not come to trial until 7, 8, 9 or 10 years after the murder was committed. In recent discussions about the perennial delays in the justice system, many causes were given, as they have been in the past. There is a great deal of work to be done to make our systems deliver justice swiftly, or even in a timely manner, as envisaged by the Mission Statement of Jamaica’s Courts.
Just: How do you guarantee a just outcome in a flawed and corrupt system?
Beyond the fundamental issue of whether the death penalty can be classified as a just punishment, lies the question of the dangers posed to justice by a flawed and corrupt system. On page 26 of the 2008 JCF Strategic Review Report, a number of corrupt practices said to be endemic in the police force are listed, some of them having the potential to impact directly on the outcome of an investigation, prosecution and conviction.
There have been instances in which physical violence and threats have been used to obtain confessions; statements have been forged by policemen to support a case; evidence has disappeared (eaten by rats or burned up in mysterious fires); files have gone missing; etc.
Long delays have also given rise to the death, migration or other unavailability of witnesses, or the fading of memories with time. Issues of inadequate legal representation or access to resources to support a case also have the potential to impact a just outcome. Cases in other jurisdictions have seen DNA evidence exonerating people who have been serving long sentences for crimes they were wrongly convicted of. Do we believe that our justice system is free of such cases?
All these problems also affect cases which carry sentences other than capital punishment, and can result in unjust outcomes too. But where the sentence is death, should the State take the risk of executing a person for a crime they did not commit?
Opposition Spokesperson Responds
Opposition Spokesperson on Justice & Governance, Senator Mark Golding gave a useful response the next day, in a press release which included the following:
The Opposition Spokesperson on Justice & Governance stated – “I do not regard Minister Montague’s announcement that the Government is seeking ‘to determine if there are any legal impediments for the resumption of hanging in Jamaica’ as a serious policy initiative that will be implemented. The Government can’t hang more people; nor, as a practical matter, can Parliament. Only the Courts can make that happen, and the Courts are governed by the rule of law and, in particular, the human rights guarantees in our Constitution.”
It should also be borne in mind that the reactivation of the death penalty, after a de facto moratorium over the 28 years since 1988, will bring condemnation on Jamaica, and possibly even adverse action, by those of our most important international development partners that are most hostile to the death penalty (e.g. the European Union and Canada), and trigger strongly adverse criticism from the international human rights community. The Government must decide if it wants to inflict that on Jamaica at this time, and we as a society must also be very clear that we are doing the correct thing and for the correct reasons.
There is a great deal to be done to prevent and deal with violent crime in Jamaica. Both Minister Montague and Senator Golding refer to some of these other measures. People may think that in calling for the resumption of the death penalty, they are calling for something straightforward and effective, that can be implemented quickly, with immediate results on the murder rate. This is not so. And part of my concern whenever this call comes up is that it diverts attention and energy from the measures which will in fact have a real impact. A sure, swift and just system will impact the levels of crime, without the resumption of the death penalty, which I do not support for a number of reasons.