Posted by: birdsongslaw | July 1, 2008

Execution for Rape of a Child Unconstitutional

Birdsong read with interest last week of the United States Supreme’s Court decision in the case of Kennedy v. Louisiana.  In that case the Court ruled that it was unconstitutional and violative of the Eighth Amendment to put a defendant to death for the rape of a child.  The Court said that under our society’s evolving standards of decency execution for the rape of a child was cruel and unusual – the Eighth amendment standard.

 

            Although many may disagree, I believe the decision by the court was a right one.   But Birdsong is against the death penalty for all crimes and advocates for abolition of the death penalty in the U.S.  This will probably not come to pass during Birdsong’s lifetime.

 

            One reason Birdsong is against the death penalty in the U.S. is that it has often been used in discriminatory ways against African Americans and other minorities who often can not afford excellent legal   representation.  The defendant in Kennedy v. Louisiana was an African American.  Prior to the landmark Supreme Court case of Furman v. Georgia in 1972 the Supreme Court recognized that there was racial discrimination with respect to our use of the death penalty.  The Furman decision led to reforms in 35 states that lessened the unfettered use of the death penalty.

 

            Despite those reforms Birdsong contends that there is still discrimination with respect to our death penalty decisions.  The defendant’s race often seems to be a factor in seeking the death penalty.  But what of a country where the majority of the population is of African descent — should we still be uneasy about using the death penalty?

 

            If such a question intrigues you please read the following article I wrote about the matter a few years back.  You will certainly learn something…

 

 

 

 

 AN  EXERCISE  IN  RACE-NEUTRAL  DECISION MAKING : IMPOSITION OF THE DEATH  PENALTY  IN THE BAHAMAS — WE SHOULD STILL BE UNEASY

 

                                               

 

                                              ©  1999 by Leonard E. Birdsong

 

 

                                                     

                                                  I.  Introduction

 

            This article is a view of  recent  race-neutral death penalty decisions made in the Bahamas, our closest neighbor in the English Speaking Caribbean [hereinafter ESC].2  Though race-neutral, a thorough examination of the decisions made in these cases should still leave us uneasy about the imposition of the death penalty in our modern day world.


            I  have long been against the use of the death penalty in the United States of America. It does not seem to be a deterrent to crime. And unfortunately, for much of the history of our country the death penalty has been used against African-Americans in  an unfair way and in numbers disproportionate to our number in the overall society. Some say that African-American lawyers and law professors like myself should continually speak out and  press for the abolition of the death penalty because, given the history of racism in the United States, it is impossible that the death penalty can be administered in a race-neutral way. In the United States death row is disproportionately inhabited by African-American men.  According to the Capital Punishment Project of The NAACP Legal Defense and Educational Fund, forty two  per cent of  the approximately 3,300 inmates awaiting execution are Black.3

            Several years ago the U.S. Supreme Court set off a debate  concerning judicial tolerance of racial bias in our criminal justice system when it ruled in McCleskey  v. Kemp,4  that race-based sentencing disparities for similarly situated defendants are “an inevitable part of our criminal justice system.”  Many scholars and civil rights defenders found this to be a startling and deeply disturbing opinion for the Court, in its opinion, expressed the fear that responding to racial bias in death penalty cases may require confronting racial bias in other criminal cases, and concluded that the U.S. Constitution does not place such “totally unrealistic conditions” on the use of capital punishment or the administration of criminal justice.5  In McCleskey the defendant, a Georgia death row inmate, had presented strong statistical evidence of racial bias in that state’s use of the death penalty.  In essence, the statistical evidence showed that blacks who killed whites were more likely to receive the death penalty, and conversely whites who killed blacks were less likely to receive the death penalty.6 Such statistical evidence provided support for what many African -Americans always believed.


            Recently, Amnesty International, an organization which advocates the world wide abolition of the death penalty, found further statistical evidence of the type of racial bias in death penalty cases as was revealed in McCleskey. The group maintains that capital punishment in the United States turns on the issue of race, leaving black defendants condemned to die more often than whites and causing white victims to be avenged more severely than blacks.  In a May, 1999, study Amnesty International reported that of the 530 prisoners executed in the United States between 1977 and 1998, more than 56 percent were white.  However, 81 percent of all those executed were convicted of the murder of a white, even though blacks and whites are the victims of homicide in almost equal numbers nationwide.  The report also asserts that minorities face bias at every step of the judicial process in the United States.7

            I  teach  first year criminal law students.  McClesky v. Kemp and Furman v. Georgia8 are  death penalty cases that I assign my students when we discuss capital punishment.  These cases must be read to understand why many people, especially, African-Americans, believe that the death penalty can never be administered in a race-neutral way.  However, in exploring the death penalty debate in the United States I have come to be exposed to a greater world of death penalty literature and statistics. 

             After investigating a country where  the death penalty was recently imposed on what appears to be a  race-neutral basis, I am still convinced  that such penalty is cruel, inhumane, and should be relegated to the dustbin of history. This a review of  race-neutral death penalty decisions made in the Bahamas  includes relevant portions of my February, 1999, personal interview with the Honorable Tennyson Wells, Attorney General of the Bahamas, concerning his government’s position with respect to the Trevor Fisher and Richard Woods executions in October of 1998.

                             

 

                        II.  Background

 


            A number of human rights groups have decried what they believe to be a resurgence of the use of the death penalty in some ESC  nations 9 whose people have seen a rise in crime rates over the past decade and who believe that the imposition of the death penalty will deter serious crime.

            Recently death warrants have been issued by the respective governments of several ESC nations for death row prisoners who still have applications pending before international bodies, such as the Inter-American Commission on Human Rights and the United Nations Human Rights Commission. The Bahamas  was the only one of these ESC nations that actually carried out the death penalty in 1998, with the double execution of Trevor Fisher and Richard Woods on October 15, 1998, the first double hanging in the Bahamas since 1983. 10 The applications of Fisher and Woods are still pending before the Inter American Commission on Human rights. 11

             Amnesty International, in a recent report, contends that English speaking nations in the Caribbean now have 245 people on Death Row out of a population of approximately 5 million.12   Amnesty  International and other human rights groups believe that this rate is one of the highest in the world. 13 The Amnesty International report reveals that Trinidad and Tobago accounts for 104 cases, Jamaica is next with 47 cases, and the Bahamas has 40 such cases.  14 In comparison, the death row rate of the Caribbean is almost four times that of the United States, which has 260 million people and 3,300 awaiting execution.15

            Human Rights Watch and other human rights organizations view with alarm what they believe is a trend toward the increasing popularity of hangings in the Caribbean, a vestige of British colonial rule.16 They decry the fact that a number of governments in the Caribbean have undertaken controversial steps to change their justice systems and constitutions and sever ties with international appeals bodies to make it easier to carry out such executions. 17  An example of such behavior is cited by Human Rights Watch as the 1998 situation wherein Trinidad and Tobago partially withdrew from the U.N. International Covenant on Civil and Political Rights and also withdrew from the Inter American Commission on Human Rights, both of which give individuals convicted of capital cases an international avenue of appeal. 18  The Trinidad and

Tobago withdrawal followed a decision by Jamaica earlier in 1998 to no longer participate in the death penalty  protocol of the U.N. accord. 19  

            It has also dismayed Sarah De Cosse, an expert on the Caribbean at Human Rights

 Watch  20 and others that Jamaica, Trinidad and Tobago, Guyana, and Barbados have discussed eliminating dealings with the British Privy Council, the supreme court for many of the former English Speaking colonies.  Breaking away from the Privy Council would end a colonial link stretching back 165 years but would allow these countries more say on how they administer the death penalty.21  It is reported that in place of the Privy Council Jamaica, Trinidad, Guyana, and Barbados wish to establish a Caribbean Court of Justice next year which would, among other things, hear appeals on capital punishment cases.22

            Of course, many in the United States are not aware of the death penalty debate that is raging between human rights groups and the governments of many of the ESC nations of the Caribbean.  Let us take a few moments to examine the roots of the debate.  In doing so, we must

 

look at what have become known to both the proponents of the death penalty and those in favor of it abolition as Pratt and Morgan.23

 

                        III.  Pratt and Morgan

            Pratt and Morgan, two consolidated cases from Jamaica, resulted in a 1993 landmark judgment of the Judicial Committee of the Privy Council, the British court of last resort for many Caribbean nations.  In essence, that judgment  established the principle that both Pratt and Morgan, who had been prisoners on Jamaica’s death row for a period exceeding five years, could be seen as victims of cruel and inhumane punishment if they were sent to the gallows, and should therefore have their sentences commuted to life imprisonment. 24  The Privy Council also

recommended that other prisoners on death row in the region for five years or more should also have their sentences commuted. 25

            In actual fact, the Privy Council found in reviewing the cases in 1993 that Earl Pratt and Ivan Morgan had been arrested 16 years earlier for a murder committed in October of 1977.  They were convicted of the crime and sentenced to death in January of 1979.  They had remained in jail from the date of their arrest. 26 The Privy Council then reviewed the tortured chronology of the appellants’ appeal process which included lost applications for appeals, rulings denying their appeal with no written explanation, and failure of Jamaica to recognize the

recommendations of the Inter American Commission on Human Rights after their review of the case. 27

            It was Pratt and Morgan’s position that to hang them after they had been held in prison under sentence of death for so many years would be inhuman punishment or other treatment, and thus in breach of section 17(1) of the Jamaica Constitution.

            Section 17 of the Constitution Provides:

(1) No person shall be subjected to torture or to inhuman or degrading punishment or other 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 section to the extent that the law in question authorities the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed day.28

 

            In allowing the appeal of Pratt and Morgan on the ground that a delay of 14 years did in fact constitute inhuman or degrading punishment under the Constitution of Jamaica, the Privy Council opined:

There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years.  What gives rise to this instinctive revulsion?  The answer can only be our humanity: We regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time.  But before their Lordships condemn the act of execution as ‘inhuman or degrading punishment or other treatment’ within the meaning of

                         s 17(1) there are a number of factors that have to be balanced in weighing the delay.  If delay is due entirely to the fault of the accused such as an escape from custody or frivolous and time wasting resort to legal procedures which amount to an abuse of process and the accused cannot be allowed to take advantage of that

                        delay for to do so would be to permit the accused to use illegitimate means to

escape the punishment inflicted upon him in the interest of protecting society against crime.29

 

            It was the ruling of the  Privy Council that in any case in which execution is to take place more than five years after sentence there would be strong grounds for believing that the delay is such as to constitute inhuman treatment or punishment as proscribed by the Constitution. 30

             In its decision the Privy Council specifically addressed the problem concerning death row prisoners’ right of appeals to international bodies. On this question the Privy Council held:

The final question concerns applications by prisoners to IACHR 31 and UNHRC.32 Their Lordships wish to say nothing to discourage Jamaica from continuing its membership of these bodies and from benefitting from the wisdom of their deliberations.  It is reasonable to allow some period of delay for the decisions of these bodies in individual cases but it should not be very prolonged.  The UNHRC does not accept the complaint unless the complainant ‘has exhausted all available domestic remedies.’  The UNHRC has decided… that a constitutional motion to the Supreme Court of Jamaica is not a remedy to which the complaint need resort before making an application to the Committee under the Optional Protocol.  A complainant will therefore be able to lodge a complaint immediately after his case has been disposed of by the Judicial Committee of the Privy Council.

And it is to be remembered that the UNHRC does not consider its role to be that of a further appellate court:

The Committee observes that it is generally for the appellate courts of States parties to the Covenant and not for the Committee to evaluate the facts and evidence placed before domestic courts and to review the interpretation of domestic law by national courts.  Similarly, it is for the appellate court and not for the Committee to review specific instructions to the jury by the judge, unless it is apparent from the author’s submission that the instructions to the jury were clearly arbitrary or tantamount to a denial of justice, or that the judge manifestly violated his obligation of impartiality….33

It therefore appears to their Lordships that provided there is in future no unacceptable delay in the domestic proceedings complaints to the UNHRC from Jamaica should be infrequent and when they do occur it should be possible for the  committee to dispose of them with reasonable dispatch and at most within eighteen months.34

            As a result of Pratt and Morgan all prisoners in the Caribbean who had been on death row for longer then five years had their sentences commuted to life in prison. Scores of prisoners continue to be removed from death row as a result.  It is reported that for those remaining the Pratt and Morgan decision has set off a scramble to extend their appeals process beyond the five year limit.  Before Pratt and Morgan, there were 450 prisoners on death row throughout the ESC. While only a handful of hangings have occurred in the region since Pratt and Morgan the death row population is less than half of what it was in 1993 — a direct consequence of the commutation of sentences.35

            The murder rate in Jamaica, Trinidad, and the Bahamas has increased during the last decade.  In these three countries, new administrations have recently been elected to office and have responded to public opinion to deter crime. Many citizens of these three nations believe that the imposition of the death penalty will act as a deterrent to crime. It appears, as a result of their actions in issuing death warrants, that the governments of the nations of Jamaica, Trinidad, and the Bahamas believe their laws should be followed and executions of condemned death row prisoners be carried out before expiration of the five year period mandated by Pratt and Morgan. Because of the racial make up of these countries where the overwhelming majority is of African or East Indian ancestry36 decisions concerning imposition of the death penalty are considered race-neutral decisions, unlike in the United States.  Such race-neutral considerations include the fact that the police, prosecutors, judges, juries and appeal court judges are usually of the same African and/or East Indian ancestry as are the defendants.  Still, there should be unease over the imposition of the death penalty in the ESC, even if such decisions are made within a race-neutral context.   Although such death penalty decisions may be race-neutral, we should still fear that due process may be sacrificed in the process, even in a race-neutral context, especially if executions are carried out while death row prisoners have appeals pending before international bodies.   

 

                                    IV.  The Bahamas Cases

            The Bahamas is an island  nation comprising 5,382 square miles, which is slightly larger than the states of Connecticut and Rhode Island combined.  The island of the Bahamas known as Bimini lies only 57 miles due east of Fort Lauderdale, Florida.  The Bahamas is an independent member of the Commonwealth of Nations.  It is a constitutional parliamentary democracy with regular elections and a bicameral legislature.  The Queen of England is the nominal head of state. The ruling party of the Bahamas, the Free National Movement (FNM) came to power in 1992 and won parliamentary elections again in 1997. 37  Eighty Five percent of the population of the country is of  African ancestry.

            On October 15, 1998, at 8 a.m., Trevor Fisher, a black Bahamian citizen, age 28, was hanged inside the walls of Fox Hill Prison in Nassau, Bahamas.  One hour later Richard Woods,  also black, age 51, followed Fisher to the gallows.  Woods was also hanged.38  Outside the prison gates approximately 100 bystanders gathered in the hour between Fisher and Woods’ executions. It is reported that dozens of Bahamians cheered when the two death  notices from the gallows were posted, allegedly underscoring the growing support in the ESC for state executions to fight crime. 39 Prior to the Fisher and Woods hanging only two  people, Thomas Reckley and Dwayne McKinney, both hanged in 1996, had been executed in the Bahamas since 1984. 40

            A local Bahamian newspaper  reported that the last double hanging in the Bahamas was on September 6, 1983,  when Lavan Newbold and Colin Evans were executed. Since 1942 there have been five double hangings and two triple hanging in the Bahamas.  The last triple hanging was January 29, 1980,  when Charles Dickenson, Vernal Storr and Winsette Hart

 were executed. 41

            Trevor Fisher had been convicted and sentenced to death in March 1994 for the 1990 murder of Duventon Daniels.  Daniels, a Haitian who was residing in Nassau was killed in a roadside accident after his car ran out of gas.  Evidence at the trial revealed that Mr. Fisher and friends happened upon Daniels and offered to help him get gas.  Although the motive is not clear the evidence at trial further revealed that words were exchanged by Mr. Fisher and Mr. Daniels. Shortly thereafter Mr. Daniels bent over to pick up a stone.  The evidence showed that Mr. Fisher

shot Daniels in the head as he reached for the stone. Testimony at trial indicated that  Mr. Fisher shot Daniels in cold blood. 42

            Richard Woods had been convicted and sentenced to death in January 1995.  He was convicted for the 1993 hit and run murder of  his niece Pauline Johnson. Ms. Johnson was also Woods’ lover.  Evidence at trial revealed that Mr. Woods intentionally ran his truck over Ms. Johnson who was apparently in the company of another male suitor, Hevin Davis, when the two of them were spotted by Woods at Harbour Island.  Mr. Davis was injured but did not die.43

            After Trevor Fisher had exhausted his appeal rights under Bahamian law  he filed a petition on June 7, 1996   before the Inter-American Commission on Human Rights, seeking recourse under international law.  On May 5, 1998, the commission declared Mr. Fisher’s petition admissible and put his case forward for consideration at its session from September 28 to October 16, 1998. 44 It was reported that Richard Woods’s petition to the Inter-American Commission on Human Rights was submitted on August 28, 1996. 45

            Mr. Fisher and Mr. Woods were hanged before their applications to Inter-American Commission on Human Rights had been decided.  It is reported by the Organization of American States that these two cases are still under review by the commission and have not yet been published. 46   The day before the execution the British High Commission in the Bahamas, acting on behalf of the European Union, called, in vain, for the postponement of the execution of Mr. Fisher until the outcome of his appeal to the IACHR. 47

            The executions of Mr. Fisher and Mr. Woods have caused concern for many and a number of press reports outside of the Caribbean carried the story. For instance, the day after the executions The Boston Globe Newspaper reported:

“The Bahamas defied international opposition in hanging the two convicted killers, in its first state executions since 1996.  Other Caribbean nations say they will resume executions after years of delays.” 48

                       

            The Times newspaper of London reported, in relevant part:

Rejecting a last minute appeal by the European Union, the Bahamas yesterday executed two murders, two years after the last hangings that broke a 12- year moratorium on capital punishment

                                                            *      *      *      *        *

Tennyson Wells, the Bahamas’ Attorney-General, rejected the plea , and public opinion overwhelmingly backed the executions. “We pray that others will note that Bahamian society is fed up with these heinous types of crime,” said the Rev. Simon Hall, the president of the Bahamian Christian Council which was outspoken in opposing the last hanging in 1996.  Bahamians have been sickened

                         by growing violence, in particular the killing of three foreigners in August,

including a British and an American woman on holiday, and a cruise

                        ship worker. 49  

 

            Upon reviewing all of these facts one wonders: Did the Bahamas defy international opposition in hanging Mr. Fisher and Mr. Woods?  And, if the Bahamas did so defy international opposition why did they do so?

.             The next section of this article recounts pertinent parts of my interview with the Attorney General of the Bahamas, the Honorable Tennyson Wells, concerning the use of the death penalty in the Bahamas and the cases of Mr. Fisher and Mr. Woods50. 

 

V.  Interview with Attorney General Tennyson Wells of the Bahamas

 


          A.  Introduction

            Attorney General Tennyson Wells is a native of the Bahamas.  He studied law in England and was called to the bar in 1973, upon his return home to Nassau.  He has been a strong supporter of the FNM since 1974.  In 1992, Mr.  Wells was appointed Minister of Agriculture and Fisheries for the Bahamas.  In 1995, he was appointed Minister of Transportation.  In 1997, he became Attorney General.

 

          B. Interview

Author:     Mr. Attorney General is there great popular support for the death penalty among the people of the Bahamas?

Attorney General (AG):   During the meetings that we had with the week before last. 51  The question came up about the death penalty and it was discussed in some depth and I indicated that you may be getting the impression from the news reports, newspapers and also from the talk shows that the vast majority of our people are in support of the death penalty.  I don’t believe that there has been any real scientific survey of the population to determine what the true feeling of the people is.  If they were given options.  You know if they were given certain options as to whether you should hang,  or carry out the penalty or whether you should look at the victim and to see if this convict’s sentence was commuted and the law was to allow him to try to rehabilitate himself to support  young children of  his victims who are  need of support.

              I  may be wrong, but those people who feel passionately about these issues are the ones that really call the radio stations.  And also if you have an opportunity to listen to them, it’s the same people calling all the time.  Basically in most cases. So I don’t know whether if we’ve taken a correct gauge.  Like I say, it’s not scientific.

. 

Author:   Has the Bahamas considered any legislation to make certain offenses eligible for life in prison without parole whereby  the victims family be paid?

 

AG:   We haven’t reached that stage yet.  The death penalty is something that was placed in our law when we were colonies. Still there are those laws that were preserved by pre 1970, 1964 constitution and then the 1973 constitution and it is mandatory if you are convicted of murder it is mandatory that the judge pass/hand down the death penalty by hanging.  The question is should we have produced in our law first degree, second degree, somewhat like you have in the United States. 

            The other question is should we have in our system the option for the prosecutor to ask for the death penalty or to seek the death penalty or not to seek the death penalty in a particular case. 

            Thirdly, whether or not the jury should be given an option of after hearing the case to say that we recommend that the death penalty be imposed.  These things we never have.  It’s left to the judge after the death penalty is handed down and after that the appeals. By the time it reaches the prerogative of mercy committee, the judge would make a recommendation based on the evidence of that the penalty should be enforced.  And he’s the same person who decides the law who decides what the law is before and who addresses the jury on the law and who may address the jury on the facts.

            So these are some of the things I believe ought to be looked at.  We haven’t reached the stage where there has even been a white paper or even any recommendations.

 

Author:  Mr. Attorney General  I have here an article that appeared in our Orlando Sentinel.52

 It’s dated Sunday, January 31st and it talks about a meeting that occurred in Port of Spain Trinidad . The article states that  the Attorneys General of 12 countries signed the statement in Trinidad on Friday advising their governments to withdraw from the Inter American Human Rights convention in the Union treaty and then reaffirm all charges except those  dealing  with capital punishment.  It says that the Bahamas is one of the countries.  Is that true?  Are you considering?

 

AG:    While I attended the meeting,  I don’t think we recommend that the governments withdraw.  What the recommendation was that the heads of government which were at the conference, the Caricom conference,  consider withdrawing.  In the case of the Bahamas,  the Bahamas is not,  has never signed on to any of the conventions like the IACHR .

     We are a member of OAS and IACHR is a part of the OAS and they have that convention.   In the case of the Bahamas, we have temperance.  A fair system starting with arrest , the judges rule,  that dictates against any abuse of the arrested person. He has his rights.  There is a preliminary inquiry.  In some cases there could be voluntary bill of indictment.  We have the jury process.  The judge and jury process and the supreme court.   You have the right to go to the Court of Appeal.   He has a right to go to the Privy Council on conviction of sentence, and if he is dissatisfied with that he can go by constitutional motion on Article 20 of our constitution to the Supreme Court and our Court of Appeal and then to the Privy Council on the basis that his human rights have been infringed.  So we feel that we have due process integral to our system.

               There will be no circumstance where any human rights commission could confer or indicate or recommend that any person has not received due process in Bahamian system.   There is no question in our minds or I believe in the previous administration mind that accused person will get hung because he didn’t receive process.  It may be possible somebody, an innocent person may be found guilty.  But certainly he will have received a fair trial and hearing and due process straight through system.

 

Author:   I have looked at the cases of Trevor Fisher and Mr. Woods.  They certainly had their chance at the Privy Council.  As a matter of fact, I think 3 times.

AG:   Three times. Really In terms of those accused persons it was really an abuse of process.  We talk about life in these cases and nobody wants to hang a person or put to death a person who is still in your domestic process of going through the traditional system.

 

Author:     I have a couple of news reports here where I think the Bahamas may be getting some bad press.  I would like your comment on this.  We agree that the Woods and Fisher cases had gone to the Privy Council 3 times,

AG:      3 times.

Author:   And  1996, Mr. Woods and Mr. Fisher filed petitions with the Inter- American Commission on Human Rights in Washington D.C. asking them to review the cases.  That commission has never made a report.  As of last Friday I was in contact with the Commission they said those cases are still pending.


              There was a press report dated October 16th that is the day after the

 executions. This one is from the Chicago Tribune 53 and it says among other things that  Mr. Fisher and Mr. Woods had appealed their death sentences in 1996 with the Organization of American States Inter-American Human Rights Commission but that the Washington DC based commission did not act on the appeals but urged the Bahamas on Wednesday to spare the men’s lives. 

       The article further indicates that the government of the Bahamas did not respond to the commission which advises member states on rights  issues but has no enforcement powers.

      Is that news report completely accurate Mr. Attorney General?.

 

AG:      It is totally inaccurate. 

Author:   Can you straighten out the record for us?

AG:   What in fact happened was they did appeal to the  Commission.  Well let’s go back.  In 1994 the Privy Council indicated that to hold somebody on death row more than 5 years constitutes cruel and inhuman treatment.  The Bahamas was the next country with a death penalty case at the Privy Council.  This was the Henfield case 54  And the Privy Council said since the Bahamas was not a member of this Human Rights Commission.  They didn’t sign on this convention, the period should have been 3 ½ years within which the execution should taken place.

            So in the Bahamas more than three and one half years on death row before execution is what will constitute a cruel and inhuman treatment. 55 But they also said that in those cases that petition to the commission should take not more than an extra 18 months.

            We argued to the Privy Council that even though we have not signed on to the convention we have no objection and we would allow anybody convicted in our courts and the death sentence was passed  to petition  the IACHR.  And Fisher exercised all his options.  Not necessarily a right but you may call it an option.  He petitioned, I think it was in June of 1996.  The trial should have run in December of 1997.  18 months.  According to the Privy Council’s ruling. 

        The usual response is that he put in his petition the commission come back and say this is his petition what is your response to it?  We received  those responses, all of them for months, some 3 or 4 times different responses basically repeating the same thing that had already been. 

            December of 1997 came along and we gave them I forget how much time it was   to respond. We said if you don’t deal with it in such and such a time we will have to carry out or enforce law.  And that went on for almost a year.  Finally we gave them,  I forget, 3 months or 2 months, something like that.  They told us that they were going to hear the case in June of ‘97 that and we said okay.   We allowed it to go from  December or was it March . You know we had a couple of dates set.

 

 Author:  I understand. Please continue.

 

AG:      We argued, we appeared before them.   Our chief counsel appeared before them in Washington.  I think it must have been in June or July of ’98 this would have been.  They said it would take until September to make a determination .  I think nothing happened.  We wrote to them asking them to give their recommendations and finally I think it was in October we determined that the Human Rights Commission was not even adhering to their own rules.  The process that they had set up in the convention.  They were not adhering to those time frames that they had set in their conventions.  You know you have to do certain things within 30 days, 40 days, and 60 days and so forth.  They didn’t even adhere to that.  They were not complying with the due process and now they are going to  tell us if we don’t comply with due process.  Because they didn’t do it themselves.  And we decided that these cases were so heinous that the death penalty ought to be carried out.  And that is what we did.  I think it was in October.

 

Author:  It was October 15.

 

AG:   1998.  At that stage the Commission was very outside of any reasonable theory that one could expect.  That we would allow it to go any further in the 5 year period for Fisher or Woods  we would have defaulted.

Author:  Thank you for that explanation.  I have another question. On October 19, 1998, Amnesty International issued a press release 56 that says, in part, that the Bahamas, by hanging Mr. Fisher and Mr. Woods showed contempt for the Inter- American system for the protection of human rights.  They go on to say the executions undermine the hemispheric regional mechanism for the international protection of human rights which had been developed over the last 50 years and immediately deprived these men of the right to review their cases by international human rights body. 

            What is your response to such press release?

 

AG:    You know my response.  We felt 18 months was a reasonable time.   If these people in the Human Rights Commission are serious about human life you see,  maybe if 18 months they had come back and recommended,  say well, for this reason, these reasons, we  believe the death sentence should be commuted maybe something would be done about it.  But they decided that they can treat a sovereign country with contempt. They don’t comply with their own rules in terms of process. A sovereign country can’t  operate like that.  Particularly if the vast majority of people are clamoring for the death penalty.  

        Now a lot of persons in authority do not believe in the death penalty but the laws are on the books.  The death penalty is the law and if you have these laws on your books and you do not enforce these laws, rightly or wrongly, the majority of your people are asking for the death penalty and they perceive the government is weak and ineffective then your whole system of justice will be undermined. So we have to take a position in spite of what the feelings are by many persons.

 

Author:  Do you, or any one in your government  feel that the death penalty will have a greater impact to deter crime?

 

AG:    Well, the greatest argument or maybe the only argument that you can put forward if not the greatest one, or the best one, possibly the only argument,  is well, that fellow wouldn’t kill anybody else.   He wouldn’t commit any more crimes.

 

Author:   It’s deterrence?

 

AG:   It’s deterrence in regards to him.  For that particular person.  The only argument you can put against him is that he may be innocent.  That you’re not sure. Suppose a mistake has been made.  That’s an argument you can put up against that.  


 

Author:  It is my understanding in 1996 there was an execution here in the Bahamas that involved the hanging of one person. However, there had not been a hanging here

before that since 1988.

AG:      That’s correct 1988

Author:  And, before that, no hanging here since 1983. Because of this human rights groups argue that there has been a de facto end of the death penalty.  Has that ever been brought to your attention?

 

AG:      Oh yes.  We have discussed that.

 

Author:   Was it the government policy not to carry out the death penalty or did it just happen during those years?

 

AG:   I think what precipitated these hangings was the Pratt and Morgan case.  See if you were in death row 15 years or 20 years.  That particular case the government decided they were going to hang him.  Right.  And I believe it had more to do with the increase of criminal activity.  People on the street have a disregard for human life.  And the governments feel that they ought to send a message that we are in biblical times.  An eye for an eye, a tooth for a tooth, if you kill someone you ought to expect; if you are proven guilty and convicted that your life will be taken.

         Now whether that is right or not that’s not an argument.  That is the law of the land.  And in the Bahamas there has been an escalation in murders and homicides in the last years from 1975.  There’s just been a continual increase in criminal activity and I believe in the last year and a half we have seen in the Bahamas a gradual decrease in criminal activity.  Now maybe it can be  argued because of the economic situation in the Bahamas been improving and more people getting jobs and they don’t have time for criminal activities. 

            Well, that may be responsible for the decrease in crime.  For the last 2-3 years see it as a gradual decline.  And maybe I don’t know maybe that may be the result of the hangings.  I personally  believe it is because of the economic situation and there is not as many people involving themselves in criminal activity as before.  

 

Author: Crime is going down in the Bahamas?

 

AG:   Crime is going down.  The economy has been doing well for the last 6 years. You may well say that’s the fact of it.  You don’t have to study these things over a period of time and as people become more educated they get more people get high school education, more people get college education, more people are working.  They are finding more meaningful things to do with their time.  Less crime.  I think that’s what is happening in the Bahamas.

 

Author:   My last question.  The Evening Journal, which is one of the Bahamas’ newspapers,  reported in mid October 1998, that there were 23 condemned prisoners on death row awaiting execution in the Bahamas. 57  Amnesty International as of last week reported there were 40 people on death row in the Bahamas.58  Can you comment on that?

 

AG:  As a result of Pratt and Morgan and the Henfield case, we commuted at one time, I think 17 persons who are on death row.  Of course there have been convictions since then and there have only been as you indicated, three hangings.  We have a couple cases pending before the commission on Human Rights now and I think it would be fair to say if they don’t act in accordance with what we perceive to be expedition we will give serious consideration to carrying out the law.  And, I believe those times run in May or sometime in the middle of this year.

 

Author: Thank you Mr. Attorney General for your time and your comments.

 

                        VII.  Conclusion

            We have reviewed a situation, outside of the United States, where the death penalty was imposed on a race- neutral basis.  Nevertheless, the death  penalty was imposed on black men who appeared poor and who were put to death before their appeals to international bodies had been decided.  Though race neutral, I would strongly argue that the imposition of the death penalty in these cases appears to be a violation of   Mr. Fisher and Mr. Woods’ human rights.  Though race-neutral decisions, we should still be uneasy that we may be in too much of a rush to sanction state sponsored  killing of citizens to appease those in society that believe an eye for an eye and a tooth for a tooth should be the order of the day.

            Human rights groups such as Human Rights Watch and Amnesty International believe that death row prisoners are denied due process when death warrants are read to death row prisoners before their appeals before human rights bodies are decided.  The Attorney General of the Bahamas disputes this notion with respect to the Fisher and Woods cases.  It is the position of the Bahamas that Fisher and Woods had domestic due process and then appealed their cases  three times to the Privy Council before filing with the Inter-American Commission on Human Rights. The Bahamas carried out the executions of Fisher and Woods because, as the Attorney General stated, the Commission did not follow its own time limits for deciding the case and treated a sovereign nation with contempt.

              The debate over the use of the death penalty in the ESC will continue as long as we have citizens who live on small, sovereign island nations who wish to see the penalty carried out as a deterrent to crime and we have human rights groups that seek the total abolition of the death penalty.  And, though the death penalty in these countries may be imposed on  race neutral grounds, we should still be uneasy.  Due process of  law should not be trampled in the process,

especially with respect to review by international bodies, which should do their reviews more expeditiously?

 

This article was originally published in the International Journal of Comparative and Applied Criminal Justice, Fall 1999, Vol. 23, No 2.

 


3. Charles Whitaker, The Death Penalty Debate: Are We Killing Innocent Black Men, Ebony, May 1999, at 178.

4. McCleskey v. Kemp, 481 U.S. 279, 312 (1987).

 

5. See, Bryan A. Stevenson and Ruth E. Friedman, Deliberate Indifference: Judicial Tolerance of Racial Bias in Criminal Justice, 51 Wash. & Lee L. Rev. 509 (1994).

6. The statistical evidence grew from a study based on over 2,000 murder cases that occurred in Georgia during the 1970’s, and involved data relating to the victims race, the defendant’s race, and the various combinations of such persons’ races. The raw numbers of the studied showed that defendants charged with killing a white person received the death penalty in 11% of the cases, but defendants charged with killing blacks received the death penalty in only 1% of the cases.  Further refinement of the data revealed that the death penalty was assessed in 22% of the cases involving black defendants and white victims; 8% of the cases involving white defendants and white victims; 1% of the cases involving black defendants and black victims; and 3% of the cases involving white defendants and black victims. McCleskey v. Kemp, supra. at 286. 

7.See, Nation in Brief, Death Penalty Shows Bias, Group Says, The Washington Post, May 18, 1999, at A6.

8. Furman v. Georgia, 408 U.S. 238 (1972), held that imposition of the death penalty could be a cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments if it discriminated against the defendant because of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.

9. Telephone Interview with Sarah De Cosse, an expert on the Caribbean for Human Rights Watch (January 21, 1999).  Ms. De Cosse  reaffirmed with the author  that she believes that due process rights of Caribbean death row prisoners are being taken away from such prisoners throughout the Caribbean.  Ms. De Cosse was also quoted with respect to her position by Shelly Emling, Hangings Resume in Caribbean, The Times Picayune, September 27, 1998, at A20.

10. See, Darold Miller, Prison in Lock down For Double Hanging, The Evening Journal (Bahamas), October 13, 1998, at 1, 3 [hereinafter Darold Miller — Double Hanging].

11.See, Amnesty International, Bahamas – Hanging Challenge International Human Rights Protection System, M2 Presswire (London), October 1998 [hereinafter Presswire – Hanging].

12.See, Amnesty International, English Speaking Caribbean has 250 on Death Row, American Embassy Nassau Report, November 18, 1998 [hereinafter Amnesty International – 250 on Death Row].

13.See, Serge F. Kovaleski, Jamaica Sets Hanging as Death Penalty Gains Favor in Caribbean, Washington Post, September 1, 1998, at A13[ hereinafter Kovaleski – Washington Post].

18.The American Convention On Human Rights “Pact of San Jose, Costa Rica” (22 Nov 69), which established the Inter-American Commission on Human Rights provides, in relevant part, with respect to this point as follows:

 

Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases.  Capital punishment shall not be imposed while such a petition is pending decision by the competent authority.  Article 4, paragraph 6.

 

 Similarly, the International Covenant on Civil and Political Rights, of the United Nations provides, in relevant part:

           

Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.  Amnesty, pardon or commutation of the sentence of death may be granted in all cases. Part III, Article 6, paragraph 6.         

19. On June 2, 1998, Jose Miguel Vivanco, Executive Director of Human Rights Watch and Viviana Krsticevic, Co-Executive Director, Center for Justice and International Law, wrote a letter to Prime Minister Basdeo Panday of Trinidad and Tobago which provided in relevant part:

           

We are writing to express our profound regret that on May 26, 1998, your government withdrew its ratification of the American Convention on Human Rights.  Your decision denies the Trinidadian and Tobagan citizenry the broad range of human rights protections that are enshrined in the Convention and actively promoted through the work of the Organization of American States’ Inter-American Commission on Human Rights.  The withdrawal of ratification will take effect one year from the date of notification.  Rather than embrace participation in this highly respected regional human rights body, your action reveals an unwillingness to endorse fundamental human rights principles and to subject your government’s human rights practices to international scrutiny.  We urge you to reconsider your withdrawal before it takes effect….

           

  A copy of this letter was provided the author by Human Rights Watch on January 22, 1999, and is reproduced herewith as Appendix A.

24. Id. at 35.

25.Id at 35-36.

26. Id. at 33.                           

27. Id. at 19-27.

29. See, id. at 29-30.

30. See, id. at 34-35.

32. The United Nations Human Rights Commission.

33.  cited as: D.S. v. Jamaica, 304/1988.  Annual Report of the Human Rights Committee.  1991 G.A.O.R. 46th Session.  Supplement No. 40. pp 281, 282 by the Privy Council.

34. See, id. At 35-36.

35.See, e.g. USIA Press Summary Sent from AmEmbassy Nassau to U.S. Department of State, Washington, D.C., October 15, 1998.

36. e.g., The population of Jamaica is 2,574,000, of which 90.9% are of African ancestry, 13% are of East Indian ancestry, and 0.2 % are white.  The population of Trinidad is 1.26 million, of which 40.3 % are of East Indian ancestry, 39. 5 % are of African ancestry, and those of European ancestry are 0.6 %.  The Bahamas has a  population of  273,000, 85 % of which are of African ancestry, 12% are of  European ancestry, and 3% are of Asian or  Hispanic ancestry. U.S. Department of State, Background Notes, released by the Bureau of Inter-American Affairs  (March 1998).

37. See, U.S. Department of State, Background Notes: The Bahamas, released by the Bureau of Inter-American Affairs (March 1998).

38. See, Michael Binyon, EU Plea for Mercy Fails To Save Bahamas Killers From Gallows, The Times (London), at 27, October 16, 1998 [hereinafter – Binyon – EU Plea].

39. See, Associated Press, Executions Are First in Bahamas Since 1996,  Chicago Tribune, October 16, 1998 at 17 [hereinafter – AP,  Executions]

42. See, Local News, Death Sentences Read To Two at Fox Hill Prison, The Tribune (Bahamas), October 13, 1998, at 3 [hereinafter –  Fox Hill].

43. Fox Hill, supra. at note 42, at 3.

46. This information was confirmed by letter, dated February 4, 1999, to the author at the University of Orlando School of Law, in response to our inquiry as to the status of the Fisher and Woods cases. That Letter is reproduced herewith as  Appendix B.

47. See, Stuart Miller, British Plea To Halt Bahamian Hanging, The Guardian (London), October 15, 1998, at 8 .

48. See, Associated Press, Bahamians Applaud News of Executions, The Boston Globe, October 16, 1998, at 21.

49. See, Binyon – EU Plea, supra. at note 38, at 27.

50.This interview was accomplished with the assistance of the American Embassy in Nassau which formally requested this interview on behalf of the author via diplomatic note to the Office of the Attorney general, Government of the Bahamas.  Special thanks are extended to Mark Libby, Second Secretary at the American Embassy for his personal assistance in this matter. The interview took place on February 11,1999, at the Office of the Attorney General, Nassau, Bahamas.

51. See, Associated Press, Caribbean Officials Back Executions, The Orlando Sentinel, January 31, 1999, at A9 [hereinafter Caribbean Officials].

52. Compare, Caribbean Officials, supra. at note 51, A9.

53. See, AP, Executions, supra. at note 39, at 17.

55.See, id. at 9-10 (slip opinion).

56. Presswire – Hanging, supra. at note 11.

57.See, Darold Miller – Double Hanging, supra. at note 10 at A3.

58. Amnesty International – 250 On Death Row, supra. at note 12.

 


Appendix A

 

 

HUMAN RIGHTS WATCH

CEJIL

CENTER FOR JUSTICE AND INTERNATIONAL LAW • CENTRO FOR LA JIISTICIA Y EL DERECHO INTERNACIONAL.

CENTRO PELA JUSTICA E O DIREITO INTERNACIONAL • CENTRE POUR LA JUSTICE ET LA DROIT INTERNATIONAL

 

Washington, D.C,, Tuesday, June 2, 1998

 

Prime Minister Basdeo Panday

Republic of Trinidad and Tobago

Port of Spain, Trinidad

BY FAX: 868-627-3444

 

Honorable Prime Minister,

 

We are writing to express our profound regret that on May 26, 1998, your- government withdrew its ratification of the American Convention on Human Rights, Your decision denies Trinidadian and Tobagan citizenry the broad range of human rights protections that are enshrined in the Convention and actively promoted through the work of the Organization of American States’ Inter-American Commission on Human Rights.  The withdrawal of ratification will take effect one year from the date of notification.  Rather than embrace participation in this highly respected regional human rights body, your action reveals an unwillingness to endorse fundamental human rights principle and to subject your government’s human rights practices to international scrutiny.  We urge you to reconsider withdrawal before it takes effect.

 

In his May 26 letter to OAS Secretary General César Gaviria, Foreign Minister Ralph Mara invoked the 1994 Pratt and Morgan case – in which Judicial Committee of the Privy Council in London ruled that death row prisoners held for longer than five years had been subjected to inhumane or degrading treatment – to justify expediting appeals “by the elimination of delays within the system.”  However, your decision to eliminate an avenue of appeal entirely clearly contradicts the spirit the Morgan decision (which requires the commutation of the death sentence in such cases to life imprisonment).  Rather than lower the risk that death row prisoners face inhuman treatment, your action has heightened the risk that death row inmates might be wrongly subjected to the most severe punishment, the irrevocable penalty of death.

 

Human Rights Watch, an independent, nongovernmental human rights organization, opposes capital punishment in all circumstances because of its inherent cruelty.  Furthermore, we believe that it is often carried out in a discriminatory manner and that the inherent fallibility of all criminal justice systems assures that even when full due process of law is respected, innocent persons are sometimes executed.  Because an execution is irreversible, such miscarriages of justice can never be corrected.  For these reasons, Human Rights Watch opposes all executions under law, irrespective of the crime and the legal process leading to its implementation.

 

While your government has expressed frustration with the pace of death penalty cases before the

Inter-American Commission on Human Rights (IACHR), your recent action overreaches in seeking

a remedy for this concern and restricts the rights of all victims of human rights abuse to access the protections offered by the inter-American human rights system.  With this dramatic step, your  government has rescinded all of the Convention’s broad civil and political rights protections, including the freedoms of conscience, expression and association, and the right to a fair trial.  Ironically, the Convention allows the application of the death penalty (but does not allow its extension to new crimes and requires that death row prisoners be permitted to apply for amnesties and commutations). 

 

We are concerned that as political support has grown in the English-speaking Caribbean for taking a “tough” stand on crime, several governments have expressed greater interest in applying the death penalty without the constraints imposed by international human rights treaties and the Privy Council.  We are aware that your government also has considered withdrawing from the, First Optional Protocol to the International Covenant on Civil and Political Rights.  Such a step would leave Trinidadian and Tobagan citizens without recourse to the world’s and region’s most prominent and effective international human rights bodies.  We urge you to do all in your power to stem movement in the Caribbean to undermine support for international human rights standards.

The Jamaican government’s decisions in the past year to withdraw from

the First Optional Protocol (in October 1997) and its issuance of instructions to the Inter-American

Commission imposing severe time restrictions on its responses to Jamaican cases were grave blows

to Jamaican citizens’ fights and to international human rights protections.

 

Human Rights Watch has had the opportunity to work closely with your government in the process

of elaborating a draft statute for the proposed International Criminal Court.  Trinidad and Tobago

has played a leading and constructive role in that process. We regret that your decision to

withdraw from the American Convention has detracted from your important contributions to the

development of an effective International Criminal Court.  We encourage your government to rethink

this unfortunate decision before it enters into effect.

 

Respectfully yours,

 

 

 

 

José Miguel Vivanco                                                                             Viviana Krsticevic

Executive Director                                                                     Co-Executive Director

Human Rights Watch/Americas Division                                      Center for Justice and International Law

 

 

cc:         César Gaviria Trujillo

            Secretary General

            Organization American States

 

            Mary Robinson

            High Commissioner for Human Rights

            United Nations

 

 


Appendix   B

 

 

 

INTER – AMERICAN COMMISSION ON HUMAN RIGHTS

COMISION INTERAMERICANA DE DERECHOS HUMANOS

COMISSO INTERAMERICANA DE DIREITOS HUMANOS

COMMISSION INTERAMÉRICAINE DES DROITS DE L’HOMME

______________________________________________________________________________

ORGANIZATION OF AMERICAN STATES

WASHINGTON,D.C. 20006 U.S.A.

 

 

                                                                                      February 4, 1999

 

 

Re:     Death Penalty Cases in the Caribbean

 

Dear  Mr. Diefenbach,

 

          I acknowledge receipt of your letter of February 2, 1 999, addressed to Dr.

Jorge Taiana, Executive Secretary of the Commission concerning death penalty cases in the Caribbean.

 

          With regard to your specific requests for the following:

 

1.                  The full text of a joint statement issued last week by CARICOM justice ministers         concerning their reaction to the Privy Council’s decision in the two cases of Darren Thomas and Hanif Hillaire from Trinidad.  The Commission does not have a copy of the same, however, a copy of newspaper accounts concerning the same have been enclosed for your information.

 

2.        Earl Pratt and Ivan Morgan from Jamaica.  The Commission does not have a          published decision, however, a copy of the Privy Council’s decision in which reference is made to the Commission is enclosed.

 

3.                  Trevor Fisher and Richard Wood from The Bahamas.  These cases are still under         review by the Commission, and have not been published.

 

 

 

Mr. Alan Diefenbach

Adjunct Associate Professor

of Law Library

University of Orlando

-2-

 

4.       Neville Lewis from Jamaica.   A copy of the Commission’s decision is enclosed for your information.

 

I trust that these  materials will be of assistance to you.

 

                                      Sincerely yours,

 

 

 

                                                                                      David J. Padilla

                                                                           Assistant Executive Secretary

 

 

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Responses

  1. It’s too bad that Mark Dean Schwab in Florida just didn’t dismember little Junny. If he hadn’t have killed him, then he would not have been executed. So, for all you child rapists out there, just take it as close to death as possible, but don’t cross this line. Remember, you have to be a child murder to get the death penalty. So, just don’t kill anyone, maiming is okay. Then, you can hang out in prison, and maybe be back in business with the help of a nice parole board.

  2. To promote our country’s evolving standards of decency, we protect those with evolving standards of indecency . . . effectively diminishing justice for the innocent children.

  3. How many people have actually received the death penalty in the Bahamas? and How man people have actually have been convicted of murder in the Bahamas in recent years and if so how many for each year?


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