Should we retain the death penalty?

THE EDITOR: The case of Birmal Roy Pariah v The State April 15, 2003 which resulted in manslaughter verdicts for three killings has outraged a misinformed public opinion.

As the Privy Council put it in a model judgment: “When an issue of provocation arises, Section 4B of the Offences against the Person Act requires the jury to consider two questions: first, whether the defendant was in fact provoked to lose his self-control (the subjective test) and, secondly, if so, whether the provocation was enough to make a reasonable man do as he did (the objective test). Where there is evidence of the good character of a defendant, the judge should give the jury a direction both as to the relevance of that evidence to the defendant’s credibility (“the first limb”) and as to the likelihood of his having committed the offence charged (“the second limb”). Simply put, neither the trial judge nor the Court of Appeal fully recognised the importance of this point of law. Moreover, the State had the option to re-try Pariah, and he would most likely have received the death penalty. It declined, and the Privy Council had no alternative but to commute the death penalty to life imprisonment. So let us not give the Privy Council a bum rap.

This case raises some important issues for our Caribbean Court of Justice. If judges are politically appointed or interpret the law incorrectly, how likely is it that defendants will receive justice? Again, the mandatory sentence of death for murder is inflexible, and provides no opportunity for alternative punishments or the consideration of mitigating circumstances. It is definitely antiquated. No doubt the members of the Mercy Committee are good and decent men, but they operate in secret and justice must not only be done, but also seen to be done. In the US, for example, a death penalty statute must provide the sentencing body (judge or jury) with standards to guide its consideration of aggravating and mitigating circumstances. It must also provide a review procedure to protect against the arbitrary and capricious imposition of the penalty. There must be a meaningful opportunity to consider any mitigating circumstances “any aspect of a defendant’s character or record and any of the circumstances of the offence” ... This is conveniently done during the sentencing phase of a criminal trial. Thus, if the defendant is convicted of murder, the same jury will then listen to mitigating evidence to determine if the defendant should suffer the death penalty or be given a term of imprisonment. The Privy Council’s decision above is, therefore, both within the law as well as in line with US Supreme Court’s judicial thinking. It is also important to note that a duty of the Privy Council, as our Supreme Court, is to keep the law consistent with evolving standards of fairness, justice, decency, and humanity, and this means introducing change (however unwelcome) when deemed necessary.

Our Caribbean Court of Justice will assist in the implementation of Vision 2020 by campaigning for a statute that includes the alternatives of imprisonment or death for murder, and a sentencing phase after trial in which victim-impact statements as well as mitigating evidence (eg character evidence) can be considered by the jury. This raises the issue whether we should keep the death penalty. The argument that it is cruel and inhumane does not answer the question “in what respects?” Is the reference to the method or to the act of execution? If the former, alternative methods can be readily found; if the latter, there are far more disgusting acts of cruelty in different parts of the world that receive very little condemnation. Take India, from time immemorial the Dalits have been treated as sub-humans, and subjected to racism, discrimination, and unremitting cruelty, including acid splashed in their faces, gang rapes (mothers or daughters) and murder because Brahminical Hinduism deems their presence to be spiritually polluting in the extreme. Why is there sympathy for the condemned murderer in TT and no compassion for the victims of this creeping genocide? This is especially hypocritical considering that the Maha Sabha actively promotes Brahminical Hinduism principles under the guise of “Indo culture”, indeed seeks to put Brahminical Hinduism on a par with Christianity. In the US, a “cruel and unusual punishment” is one that does not receive a sufficient national consensus for, in a democracy, that is a criterion of policy. The death penalty is retained because a majority of voters want it as a response to the awful murders that are committed. The danger here is that this consensus may clash with evolving standards of justice and humanity. Nevertheless, it is a factor that must be considered.

The argument that research indicates that the death penalty does not deter, and therefore it should be abolished overlooks that its primary function is as a punishment. It is also a collective expression of the feelings of society (the national consensus factor). It also does deter many who choose to operate within the law. The so-called research is flawed in that no comparisons are made of the rates for different types of murder or geographical regions to see which have/have not increased, nor do the rates reflect correlations with the specific emergent features of a changing urban society that predispose to violence and murder. Murder, in the final analysis, is a legal description of an act performed in specific social circumstances, and it is important to chart the influence/progression of relevant social factors or changes that may be causally related to such acts. If these can be identified, something can then be done about the incidence of murder. Lastly, murder rates reflect convictions for murder. But a jury’s conviction for murder is a legal judgement often influenced by several factors: for example, the errors or misconduct of police officers, the prosecution, and witnesses, the incompetence of defence counsel, the bias of the judge and the jury itself. Murder rates are therefore implicitly flawed and misleading. Indeed, the science of DNA shows that many on death row should not have been convicted at all. This is, however, a very strong argument for the abolition of the death penalty. Those who say that the death penalty is state killing and promotes violence overlook the fact that the state is the collective embodiment of its citizens, and expresses as far as possible their views and feelings on different issues. Its enforcement of the law that applies to all is an attempt to be impartial and public in the administration of justice. This elicits support and compassion from other citizens for the victim’s relatives, and help them cope with their depression and pain. State executions are certainly preferable to arbitrary individual executions.

As the philosopher Jean Paul Sartre has pointed out, there is a morality to revenge. Killing someone who has ravished your mother is not morally wrong, though it is certainly legally wrong. Revenge is a form of reciprocity, which underlies the idea of “the scales of justice”, and which regulates all aspects of social life. If X gives Y some channa, X expects Y to return the favour; love me tender, and I’ll love you sweet. However, there is the danger that consuming feelings of personal revenge may distort one’s life or personality in a destructive way, so that calm, rational analysis should always be encouraged. Nevertheless, it would be insensitive, immoral, and a trivalisation of their pain to suggest that those who call for revenge are in some way lacking or promoting violence. “Violence” has a social definition relative to both time and place, and personal values are important in shaping attitudes to violence. I incline to the abolition of the death penalty for two reasons. In the US the majority of convicts on death row are African-Americans. Many are victims of incompetence on the part of defence counsel and the police. Moreover, their impoverished childhood environments predispose to crime and violence as pressing options for status and survival, and crime becomes a way of life. In effect, they are executed for being black and poor, for committing a crime to escape poverty, and for being incompetently defended (good lawyers cost money). Their crimes are an indictment of their society’s racism and institutionalised inequality. It’s a no-win situation for them. My second reason is that the abolition of the death penalty would make it possible to apply pressure on those corrupt leaders and governments with a taste for the torture and murder of their citizens. If only the US would show some leadership here!

KENNETH AQUAN-ASSEE
Port-of-Spain