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Introduction

Death penalty is a form of capital punishment whereby an individual is put to


death by the state as means of punishment for a crime. These types of crime are known as
capital crimes or capital offences. Sexual offences such as rape, adultery, incest and
sodomy attract this punishment. When British speaking Caribbean countries attained
independence their new sovereign constitutions contained Bills of Rights which created a
new critical opportunity for attacking the death penalty. The constitution makers
recognised that the death penalty conflicted with the guarantee against torture inhumane
and degrading punishment and being committed to death penalty to the death penalty,
they invariably provided saving clauses which after reciting the guarantee typically
stated: Nothing contained in or done under the authority of any law shall be held to be
inconsistent with or in contravention of this section to the extent that the law in question
authorise the infliction of any description of punishment which was lawfulHowever
gradually as the judiciary become more influence by European human rights
jurisprudence new possibilities emerged and the strategy has been reformulated.

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Aims and Objectives


Aim:
An investigation to determine whether the death penalty should be abolished in
Commonwealth Caribbean judiciary system.

Objectives:

Identify the reasons as to why this form of punishment has led to controversies in

the Caribbean.
Assess the different views on the death penalty and make a conclusion on as to

whether it should be reinstated.


To identify and examine cases of death penalty was used to bring forth an
evaluation.

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Research Methodology

The researcher employed the use of primary sources as well as secondary sources.
An interview of was carried out with Ms. Taj-Marie Osbourne and relevant questions
posed to her on the topic brought forward fruitful responses. Ms. Osbourne is a credible
source as she holds a bachelors degree in law. The researcher made use of multiple
secondary sources including the internet, textbooks, case files and law articles. The case
files were considered very important as it is through this medium; a deeper understanding
of the topic was brought forward.

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Findings
The abolition of the death penalty has always been and continues to be a
controversial subject in the Caribbean. Commonwealth Countries still retain the death
penalty but only Barbados, Guyana, Trinidad and Tobago have utilised death penalty
sentences in recent years. Commonwealth Caribbean has voted against the United
Nations (UN) General Assembly resolution entitled Moratorium on the use of death
penalty. Caribbean retentions states have consistently voted against the resolution and
have signed the nofe verbale, which disassociates them from the moratorium. They have
also rejected recommendations by international bodies to either reduce or discontinue the
use of the death penalty.1 Most commonwealth countries have not carried out any
execution within the past 10 years, which begs the question of why it is still retained in
the law books of these territories? The death penalty is often thought of as a quick-fix
solution to tackling crime, particularly in countries facing high rates of violent crimes as
the case in certain countries in the Caribbean. The Greater Caribbean nations for life; an
organisation that is working towards the abolition of the death penalty, has urged all
Caribbean nations to use this opportunity to demonstrate their commitment to human
rights and the fundamental right to life by supporting this particular resolution.
Many are of the opinion that this system is one of the main reasons why some
CARICOM states would prefer to have the Caribbean Court of Justice (CCJ) rather than
the Privy Council, as their final appellate court. This is because the Privy Council had in
earlier years refused the death penalty for persons convicted of murder (who had spent
more than five years pursuing their various appeals options) to be practiced in Caribbean
states. The Privy Council therefore came under heavy scrutiny as a majority of the
Caribbean people in the relevant jurisdictions supported the death penalty and believes
the CCJ would also support the retention that they so desire. Pratt and Morgan vs AG of
Jamaica 1993 takes into consideration this issue. Both men were convicted of murder and
sentenced to death, in which they spent approximately 14 years on death row awaiting
their execution. The Privy Council acknowledged that excessive delay on death row
1 Amnesty International; Death Penalty in the Caribbean: A Human Rights Issue. December
2012. P. 10
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constituted to inhumane or degrading treatment and is therefore unconstitutional. This


was a landmark decision which now ensures that the individuals who had spent more than
five years on death row cannot be executed. This has enabled hundreds of prisoners on
death row in the Caribbean having their death sentences commuted. The Privy Council
ruled that individuals who remained on death row for more than five years should have
their sentences commuted to life imprisonment as such treatment was unconstitutional.
Although there has been an obvious increase in murder rates in the Caribbean
there is a de facte moratorium. The application of this principle is that the extreme
punishment of death should only be influenced in the worst of the worst or rarest of the
rare cases. As a result, the courts imposed the death penalty in only a very limited
number of cases. According to Navi Pilay2 the UN opposes the death penalty because it
negates the right to life and its application raises serious human rights concern. Although
most Caribbean countries have not carried out an execution in several years, it is still
retained as a part of their constitution. The last noted execution was carried out in St.
Kitts and Nevis; Charles Elroy Laplace 2008. Mr. Laplace murdered his wife and was
subsequently hanged on December 19, 2008. Controversies surrounded this case as Mr.
Laplace was executed before he was able to appeal to the Privy Council. Human rights
activist also pointed out that Laplace was not represented by legal counsel of the time of
his execution. This case illustrates the challenges that retentionists countries face in
ensuring adequate legal representation to persons facing a death sentence. The U.N.
Human Rights Committee comments that capital defendants should be provided with
counsel at all stages of the proceedings3. Yet it appears that Laplace lacked the needed
legal representation throughout critical stages of his case.
The CCJ was inaugurated in 2005 and issued its first judgement regarding the
death penalty on November 8, 2008 in Boyce and Joseph vs Barbados. In Boyce, the
primary issue was that Barbados had asserted a reservation to the American Convention
on human rights including a review of the countrys imposition and method of execution.
2 High Commissioner for human rights
33 Human Rights Committee, Gen Comm. 32 para 3
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The court held that the mandatory imposition of the death penalty violated the American
Convention on Human Rights right for life. According to Julian Rupnow4 the Barbadian
law did not distinguish between accidental and incidental killings as such, it violated the
treatys mandate to limit the imposition of the death penalty to only the most serious
crimes. Secondly, the court held that, despite the option to apply to the executive branch
for a commuted sentence, the failure to account for the particular circumstances of each
case led to the arbitrary deprivation of life.
Most Commonwealth states believe that the death penalty acts as a deterrent to criminals
thus lowering the crime rate. In Trinidad and Tobago which records one of the highest
murder rates in the world, the death penalty is widely supported. In a recent survey by the
Trinidad and Tobago Journal, 9% of Trinidadians stated their support for the death
penalty. Politicians in such countries publicly voice their support for the death penalty
and their disapproval of procedural safeguards that make imposition of the death penalty
more difficult and time consuming5.
Despite belief held by many that the retention of the death penalty would be
directly proportional to Commonwealth countries, there is no correlation between murder
rates and the death penalty. According to Julian Rupnow6 In the countries with the ten
highest murder rates in the Caribbean three are abolitionists and seven are retentionist. In
the countries with the ten lowest murder rates, eight are abolitionists and two are
retentionists. Thus a Caribbean nation with a high murder rate is more likely to be a
retentionists, and a nation with a low murder rate is more likely to be an abolitionists.
Jamaica is one such Commonwealth country that has retained the death penalty.
According to Jamaica Gleaner7 critics on Jamaicas position on the death penalty point
44 Fredrikson&Bryan P.A. law firm. The death penalty in the greater Caribbean
5 Amnesty International; Death Penalty in the Caribbean: A Human Rights Issue. December
2012. P. 24-25
6 Fredrikson&Bryan P.A. law firm. The death penalty in the greater Caribbean
7 Death penalty and Jamaicas image Feb 10, 2008 by Rev Charles Dufour
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out that former United Nations Commission Human Rights had repeatedly passed
resolutions calling on states to abolish the death sentence and emphasised that on
increasing number of countries have, in fact prohibited the sentence in practice. The
government of Jamaica has however come to the defence that the death penalty was not
prohibited in international law. Jamaica strengthened its position by saying in some
countries which have not abolished the death penalty sentence of death may be imposed
only for the most serious crimes in accordance with the law in force at the time of the
commission of the crime, and not contrary to the present covenant and to the Convention
of the Prevention and Punishment of the crime of Genocide. This penalty can only be
carried out pursuant to a final judgement rendered by a competent court8. The Jamaica
Gleaner9 states Jamaica has also argued that those treaties that expressly prohibit the
death penalty, including the Second Optional Protocol to the International Covenant on
civil and Political Rights and the Protocol to the American Convention on Human Rights
to abolish the death penalty have not been widely accepted and more importantly have
not been accepted as law by Jamaica.

8 Article 6(2) International Covenant on Civil and Political Rights (the ICCPR)
9 Death penalty and Jamaicas image Feb 10, 2008 by Rev Charles Dufour
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Discussion

The death penalty has clearly shown its inefficiency in Caribbean environment
and as such it needs to be completely eliminated as a means of reducing the crime rate.
For a region that is in development stages, states should not see it a simple issue, they
should consider it quite serious, states shouldnt take light to any decisions made by
larger international bodies who have a more structured judicial system. The U.N. has not
refrain from analysing critical death penalty cases in the Caribbean and making criticisms
on these. These criticisms are pointed at the Caribbean justice system, what this does is
that it puts the Caribbean in a negative light where the legal system is concerned which
allows it not be seen as promising place to be, for any individual. Organisations such as:
Greater Caribbean for Life has been initiated to combat the use of death penalty resulting
in the Caribbean not carrying out executions from 2008. Not only are there one particular
body that has done this but other international humanitarian bodies have tried to hinder
the process. According to Adriel Brathwaite10 there will be considerable public opposition
to the change because many people feel that once you commit murder, you should forfeit
your lives. This is not a reasonable way for Caribbean people to think or any individual
for that matter. Due to the number of persons brought before the court for murder, there is
a strong possibility that many lives will be lost. The researcher believes that as intelligent
Caribbean minds, we should be extending mercy towards those on death row in that the
time be reduced and execution is carried out in the quickest possible time. Most of the
Caribbean has been increasingly influenced by international standards in abolishing the
10 AG of Barbados
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death penalty. However most states are for the retention of the death penalty, but the
researcher unlike the states believe that is best to go along with these more developed
countries who understand what it is to have a more effective law making body. The fact
that states have signed a moratorium justifies their position on the issue of death penalty.
They have also rejected recommendations by international bodies to reduce the use of or
the death penalty. Caribbean retentionists states hold the view that the use of death
penalty is a deterrent to crime. Whilst they may say that, statistics says otherwise.
Retentionsits state actually as a higher murder rate than abolitionists, hence a defence as
that cannot be deemed acceptable for the retention. It should also be remembered that
states have signed the de facto moratorium. Therefore not every individual that commits
a crime will be executed.
The researcher is supportive of the fact that regional appellate and human rights
bodies have successfully limit the amount of time a person spends on death row. Waiting
more than 5 years on death row has been considered a violation of the right not to be
subjected to inhumane and degrading treatment. Being on death row for more than 5
years is unjust and could lead to mental disorder or psychological effects of the individual
not mentioning the pain suffered by being handed the death penalty in the first place. The
Caribbean should take heed towards the death penalty especially if it is being discussed
as well as abolished in more developed regions. They are the ones setting an example for
developing countries and the researcher believes the Caribbean is being ignorant in not
allowing implementations to be made in their judiciary system which will be consistent
or acceptable as laws in other larger more developed countries as well. Retentionists state
are however not doing which will eventually allow international bodies to withdraw
investments from our region.
The researcher believes that the death penalty should be abolished entirely to
allow society to function i9n a civilised manner, whereby every person has the right to
live

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Conclusion and Recommendation


Although international law still acknowledges the death penalty, the Caribbean
retentionists state should in their jurisdiction abolish the use of this system. International
human rights bodies are working keenly to rid this system. The death penalty was a
means of controlling crimes. However, there are other effective sanctions for this, hence
the need for the death penalty is unnecessary.
Caribbean states retain this system should seek to amend its jurisdiction because
a developing region more powerful international bodies will interfere with our handling
of court matters. Getting rid of this system will limit the amount of interference from
international bodies which criticises our court proceedings. The death penalty does not
serve a significant purpose since de facto moratorium has been signed. A case hasnt
been brought before the courts that represent that degree of harshness. The candidate
recommends that a longer prison sentence be served and a limit placed on their actions
after prison time. Caribbean retentionists should reform its laws to expose progressive
democracy and avoid being side-lined on matters of human rights concern.

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Bibliography

Books
Card, R. (1995) Card, Cross and Jones: Criminal Law, London: Butterworths

Interview
T. Osbourne. March 6, 2015. Tryall, St. Mary. Law student.

Internet

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