The death penalty in The Bahamas is dead

By Dennis Dames:


Let’s face it. When one is sentenced to death in The Bahamas, these days it really means life in prison. The condemned prisoner knows that all he has to do is appeal and wait on the commutation call, or total freedom in some cases.

The death penalty in the Americas has been corrupted for centuries and used as a brutal tool of racism; especially against the black man and other minority groups. After the advent of DNA, the death penalty was found guilty of the murder or false imprisonment of countless innocent victims – and new ones are added almost daily – after further review.

Only heaven knows the millions of convicted and innocent death penalty victims throughout the ages – whose names will never be vindicated, as there is no available DNA evidence to clear them accordingly.

The death penalty will always be corrupt because innocent people are also victims of it. The death penalty is simply a legal bully in The Bahamas because it is truly shameful and scandalous to have such a deadly thing hanging over one’s head. Maybe that’s why hanging is still on our law books.

In the meantime, the death penalty in The Bahamas is enjoying the publicity, knowing full well that it will die on the unemployment line.

What's the precise meaning of the death penalty test imposed by the London-based Privy Council?

Call To End Confusion Over Death Penalty

Tribune242:



ONE of the country’s top judges has called for an end to the confusion surrounding the imposition of the death penalty.

 

Amid escalating crime and growing calls for capital punishment, Court of Appeal President Justice Anita Allen said the precise meaning of the death penalty test imposed by the London-based Privy Council must be made clear.

 

“We’ve considered these decisions, listened to and appreciate the concerns of the public and what the Constitutional Commission has recommended. I suggest that the time has come to bring clarity to the dispensation of justice in these cases,” Justice Allen said.

 

Speaking to politicians and members of the judiciary yesterday during the annual special sitting of the Court of Appeal, she noted that a 2006 Privy Council decision outlawed the mandatory death sentence for murderers then on the books, and made capital punishment discretionary.

 

But, Justice Allen said, the high court’s definition of a capital case as the “worst of the worst or the rarest of the rare” has caused “consternation in the ranks of legal scholars and the general public at large.”

 

“The test,” she said, “even appears to confound judicial thinking as (Privy Council member) Lord Kerr himself admitted in the case of Maxo Tido, when he said that the epithet ‘worst of the worst and rarest of the rare’ gave rise to conceptual difficulty as to which cases qualify for the death penalty.”

 

Responding to calls for the Privy Council to be replaced by the Caribbean Court of Justice, the government-appointed Constitutional Commission warned last year that this move would not necessarily lead to a different stance on capital punishment, or eliminate concerns about “foreignness”.

 

“In reality, London is not much further away from Nassau than Port-of-Spain (Trinidad),” the commission said.

 

Justice Allen’s call for clarity comes on the heels of anti-crime activist Rodney Moncur’s claim that his upcoming march to “remove impediments to capital punishment” will attract thousands of participants.

 

“The society is tired of the number of murders and mayhem which are taking place in the Bahamas and we believe these murders can be reduced through swift justice,” said Mr Moncur.

 

“We are marching once again to bring pressure on the Parliament of the Bahamas to remove all of the impediments which prevent persons charged with murder from getting bail and to move all of the impediments which prevent murderers from being executed.”

 

The last person executed in the Bahamas was David Mitchell in January 2000.

 

He was convicted of stabbing two German tourists to death.

 

Mitchell’s execution was controversial because it was carried out while he had an appeal pending before the Inter-American Commission on Human Rights.

 

International criticism of the move was followed by a moratorium on capital punishment which lasted until the Privy Council’s 2006 decision in the case of Maxo Tido.

 

January 31, 2014

 

Tribune 242

The Bahamas needs to determine its position on the death penalty ...says Bahamas Bar Council President, Ruth Bowe-Darville

'Time To Decide On Death Penalty'

By SANCHESKA BROWN

Tribune Staff Reporter

sbrown@tribunemedia.net

BAHAMAS Bar Council President, Ruth Bowe-Darville, is calling on the Bahamas to take a firm legislative position on the death penalty.

Her remarks came during a meeting of the Bahamas Constitutional Commission yesterday where she represented the Council’s position on several areas of constitutional reform.

“The country needs to determine its position on the death penalty,” Mrs. Bowe-Darville said, “We are being urged on by several international agencies that firmly pronounce against the death penalty and then there is the legal precedent of Pratt and Morgan vs The Attorney General of Jamaica that has reduced many sentences to life imprisonment due to the inordinate and excessive delay in carrying out a lawful sentence.”

She also warned against the haste of implementing the Caribbean Court of Justice to replace the Privy Council as the most influential body to advise the head of state of the nation.

“Regrettably, there is no firm resolve by Bar members for replacing the Judicial Committee of the Privy Council with the Caribbean Court of Justice. However, whether we sign on to the CCJ or retain the Privy Council, the decisions of our final court must be observed by the Executive as well as the judicial and legislative branches of our country, so that respect for the Rule of Law is entrenched in our culture. Perhaps, now is not the time for the CCJ,” she said.

Mrs. Bowe-Darville also called for the establishment of several new appointments with the Judicial system, including an Office of an Independent Director of Public Prosecutions, an Office of Public Defender, and the establishment of an Ombudsman.

“In re-assessing the needs of our country and being forever cognizant of the prevailing social and economic ills in our society, the introduction of an Office of an Independent Director of Public Prosecutions as an entrenched provision of our Constitution is welcomed. Such an office should in principle alleviate the burden on the Office of the Attorney General in the area of criminal prosecution. However, such an office must be given the autonomy to perform the task, sans political interference,” she said.

“Further the proposition should also extend to the establishment of an Office of Public Defender. Such a department could ultimately be a boost to the Office of the Director of Public Prosecutions, it will complement it. It is proposed there be a recommendation for the establishment of an Ombudsman. This office, like that of the independent Director of Public Prosecutor, will require the appointment of a person with a significant degree of independence who is charged with representing the interests of the public by investigating and addressing the complaints of maladministration or violation of rights. The Ombudsman generally seeks to promote and protect human rights,” she said.

February 26, 2013

Tribune 242 

Caribbean Blog International

Constitutional reform - pt. 10... ...The government should commission The College of the Bahamas and the Eugene Dupuch Law School to conduct a scientific study to determine the comparative deterrence between the death penalty and life imprisonment ...to inform public education and policy on the issue of the death penalty... ...

Constitutional reform, pt. 10

BY ALFRED SEARS

The Bahamas has executed by hanging 50 condemned persons from December 1929 to January 6, 2000, pursuant to the sentence of death pronounced by the Supreme Court of The Bahamas.  There is presently one condemned prisoner awaiting execution.  The murder rate is currently at 94 and climbing.  Therefore, the fear of violent crime has elicited a public cry for a solution to crime.  For some the resumption of hanging is the answer, in spite of the compelling evidence that capital punishment is not a deterrent to the rising rate of violent crime and the risk of wrongful convictions.

Professor Ann Spackman, in her book “Constitutional Development of the West Indies 1922-1968” (1975) at page 21, argues that one of the legacies of plantation slavery, colonialism and racial oppression in the Caribbean is the continuing  “emphasis on coercion and control” and the existence of harsh laws enforced in a punitive spirit during most of the historical experience of the Caribbean since 1492.   Lloyd Barnett, Q.C., in an essay entitled “The Present Position Regarding the Enforcement of Human Rights in the Commonwealth” in the West Indian Law Journal (November 1980), counters that the Commonwealth Caribbean, in addition to having legacies of slavery and colonialism, has also been the beneficiary of the common law which flowered into passionate self-determination and aspiring constitutionalism.

However, the challenge facing constitutional jurisprudence in the Caribbean is to move away from the English techniques of statutory interpretation, applicable to ordinary legislation, when interpreting the Constitution that requires a more flexible and purposive interpretation, informed by international human rights instruments and the evolving global standard of human rights, human decency and norm of respect.  The Privy Council, in A.G. of Gambia v. Jobe (1985), held that there should be a liberal and contextual construction of the Constitution to give effect to the intent and purpose of the Constitution.

The tension between the punitive application of the law and restorative justice approach is most vividly illustrated around the issue of the death penalty in The Bahamas.  Articles 16, 17 and 30 of the Bahamian Constitution provide:

16. (1) No person shall be deprived intentionally of his life save in execution of the sentence of a court in respect of a criminal offense of which he has been convicted.

(2) A person shall not be regarded as having been deprived of his life in contravention of this Article if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justified...

17. (1) No person shall be subjected to torture to inhuman or degrading treatment or punishment.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that the law in question authorizes the infliction of any description of punishment that was lawful in the Bahama Islands immediately before 10th July 1973.

30. (1)... Nothing contained in or done under the authority of any written law shall be held to be inconsistent with or in contravention of any provision of Articles 16 to 27 (inclusive) of this Constitution to the extent that the law in question –

(a) is a law (in this Articles referred to as ‘an existing law’) that was enacted or made before 10th July 1973 and has continued to be part of the law of The Bahamas at all times since that day.

Saving clauses, such as contained in Article 17 (2) and the general saving clause contained in Article 30 (a), which were intended to be transitional until law reform removed existing laws inconsistent with the Constitution, are sometimes used to limit the enforcement of personal liberties granted by the Constitution.

Chief Justice Telford Georges, in an essay entitled “The Scope and Limitations of the State Machinery” in Human Rights and Development (1978) at page 45, argued, with respect to a similar clause in the Constitution of Trinidad & Tobago, that such clauses “... considerably limits the scope of the machinery of judicial review as a method of enforcement of the rights apparently enshrined in the Constitution.  The judicial view... is that the constitutions create no new rights.  They merely preserve existing rights.”

Article 30 (a) is construed as saving Section 312 of the Penal Code that pronounces that the death penalty is the punishment for murder as being compatible with and not in contravention of any of the fundament rights and freedoms contained in Articles 15 to 27.  Until 2011 the mandatory sentence of death by hanging was applied upon the conviction of murder and treason.

However, the Privy Council, informed by the evolving jurisprudence in Europe, has forced the Commonwealth Caribbean to conform to the evolving standard of human decency and human rights in the application of the death penalty.  In 1993 the Judicial Committee of the Privy Council, in the case Pratt and Another v. Attorney General of Jamaica (1993), held that the execution of the death penalty after five years was unconscionable delay and would constitute a contravention of Article 17 (1) of the Constitution, except where the delay had been the fault of the accused.

This ruling resulted in scores of condemned prisoners in The Bahamas having their death sentences commuted to life imprisonment due to delay.  In 2000 the Privy Council, in Neville Lewis, overturned Reckley v. Minister of Public Safety and Immigration (1996) and held that (a) a condemned prisoner has a right to the secure protection of the law and to due process which would be denied if he were to be executed before the completion of a hearing before the Inter-American Commission on Human Rights; (b) that a condemned prisoner who applied for mercy had a due process right to know what material had been placed before the Prerogative Committee on Mercy and be afforded the right to make representations and know the reasons for the decision of which the process is subject to judicial review; and (c) that the passage of time and their treatment in prison may constitute inhuman or degrading treatment.

In Henfield and Ricardo Farrington v. A.G. of The Bahamas, the Privy Council reduced the period by which The Bahamas must execute a condemned prisoner from five years to three and a half years due to an oversight that The Bahamas is a party to the Inter-American Commission on Human Rights.  The five-year rule was subsequently reinstated.  The Privy Council, in Forrester Bowe, Jr. and Trono Davis v. The Queen (2006), held that section 312 of the Penal Code Act that declares the mandatory sentence of death for the conviction of murder “should be construed as imposing a discretionary and not a mandatory sentence to death”.  Consequently, the mandatory sentences of death imposed on Forrester Bowe, Jr. and Trono Davis were quashed and the cases were remitted to the Supreme Court for consideration of appropriate sentences.

In light of the Privy Council’s ruling in Forrester Bowe, Jr., the Parliament of The Bahamas amended the Penal Code Act in 2011, by removing the mandatory sentence of death for the conviction murder and setting out the circumstances that will attract the death penalty of a person convicted for murder, such as the murder of a member of the police force, a prison officer, a member of the defence force, a judicial officer, a witness, a juror, the murder of a person during the course of a felony or the murder of more than one person.

Trends in thinking

The trend in judicial reasoning by the Privy Council, informed by the evolving standard of human rights and human decency, will eventually lead, in my opinion, to a judicial finding that the death penalty is contrary to human rights and human decency.  The reaction in The Bahamas and the wider Commonwealth Caribbean to this trend has been a desperate effort to retain the death penalty.  In this context, some advocates have proposed delinking The Bahamas from the Privy Council as the final appellate court for The Bahamas in favor of either the establishment of final appellate court in The Bahamas or by accepting the compulsory original jurisdiction of the Caribbean Court of Justice. The Bahamian society, on reflection, must determine whether the death penalty is a deterrent to crime or cold-blooded killing by the state, which brutalizes the offender and the society.  When the state kills does it lessen its offensiveness and elevate killing into principle?  If the justification is the principle of “an eye for an eye”, should we not also advocate that rape be undertaken by the state as a punishment for rape?

Chief Justice Gubbay of the Supreme Court of Zimbabwe, in the case Catholic Commission for Justice and Peace in Zimbabwe v. Attorney General and Others (1993), argued that retribution is not a sound rationale for the death penalty as follows: “Because retribution has no place in the scheme of civilized jurisprudence, one cannot turn a deaf ear to the plea made for the enforcement of constitutional rights.  Humaneness and dignity of the individual are the hallmarks of civilized laws.  Justice must be done dispassionately and in accordance with constitutional mandates.  The question is not whether this court condones the evils committed by the four condemned prisoners, for certainly it does not.  It is whether the acute mental suffering and brooding horror of being hanged which has haunted them in their condemned cells over the long lapse of time since the passing of sentence of death, is consistent with the guarantee against inhuman, or degrading punishment or treatment.”

The European Court of Human Rights in the case Soering v. the United Kingdom (1989) abolished the death penalty in the European Union.  Similarly, South Africa, Australia, India, New Zealand, Namibia, The Gambia, for example, have also abolished the death penalty.  In the United States, 18 states have abolished the death penalty.

In The Bahamas, without an adequate public defender’s system, there is a significant risk that innocent persons may be wrongly convicted for murder, since most defendants in capital cases tend to be poor African-Bahamian men, sometimes with mental problems and background of abuse.  There needs to be a more disciplined focus on the causes of crime in The Bahamas and the comparative deterrence of the death penalty in relation to life imprisonment.

Recommendation

1. The government should commission The College of the Bahamas and the Eugene Dupuch Law School to conduct a scientific study to determine the comparative deterrence between the death penalty and life imprisonment to inform public education and policy on the issue of the death penalty.

2. The law reform commissioner should be directed to conduct a comprehensive review of all “existing laws” that may be saved under the “existing law provisions” of the Constitution and recommend amendments to ensure consistency of all laws with the Constitution.

• Alfred Sears is an attorney, a former member of Parliament and a former attorney general of The Bahamas.

Oct 25, 2012

thenassauguardian

Caribbean Blog International

Constitutional reform pt. 9: ... ...The current development strategy in The Bahamas, industrialization and modernization ...by inviting foreign direct investment by large multinational resorts and financial institutions, some of which employ thousands of Bahamian workers ...require a redefinition of trade unions in accordance with International Labor Organization (ILO) Conventions 87 and 98 ...in order to achieve a better balance of power between capital and labor in The Bahamas