With this post Birdsong reverts to his role as “Professor Birdsong” who asks his first year criminal law students to read the following law review article for class discussion during the second week of class. This comparative law article concerns a death penalty case in Trinidad regarding Pamela Ramjattan and introduces us to some basic criminal law concepts concerning punishment and accomplice liability that we will learn more about as the semester progresses.
IN QUEST OF GENDER-BIAS IN DEATH
PENALTY CASES : ANALYZING THE ENGLISH SPEAKING CARIBBEAN EXPERIENCE
Leonard E. Birdsong 1
Copyright © 2000 by Leonard E. Birdsong
For many years I assumed that there was gender-bias with respect to the imposition and carrying out of the death penalty in the United States. The NAACP legal Defense Fund reports that as of January 1, 1999, there were 49 women on death row in the United States. These 49 women constitute 1.4% of the total death row population in our country.2 The death sentencing rate and the death row population remains very small for women in comparison to that of men. Our total death row population is comprised of 3,400 individuals. It is estimated that there are 50,000 women in prison in the United States.3
However, Elizabeth Rapaport, writing for Law & Society Review,4 several years ago maintains that it is not gender bias at work. Instead she argues that women are represented on death row in numbers commensurate with the infrequency of female commission of those crimes our society labels sufficiently reprehensible to merit capital punishment.5 Ms. Rapaport contends that under modern era law the death penalty is only a dramatic symbol used for those crimes that evoke our society’s most extreme condemnation, that is predatory crimes committed, usually by men against other men and sometimes by women, against those who are not intimates or family members6. Women who kill while in the domestic sphere, that is, women who kill husbands, lovers, or their children are usually murders done out of anger but not for predatory purposes.7
Statistics do reveal that actual execution of female prisoners is quite rare, with only 533 documented instances beginning with the first in 1632. These 533 female executions constitute less than 3% of the total of 19,000 confirmed executions in the United States since 1608.8 The only three female offenders executed since 1976 have been Judy Buenoano in Florida in March of 1998; Karla Faye Tucker in Texas in February of 1998; and Velma Barfield in North Carolina in November, 1984. Before this, the last female offender executed was Elizabeth Ann Duncan. She was executed in California in August of 1962.9 Death sentences and actual executions for female prisoners are rare in comparison for male offenders. It appears that women are more likely to be dropped out of the system the further the capital punishment system progresses. Statistics, again, reveal that although women account for about 1 in 8 of murder arrests (13%), they only account for only 1 in 53 of the death sentences imposed at the trial level. This is 1.9% of such sentences imposed.10
I came upon these interesting facts and figures concerning our female death row population while investigating the reemergence of the use of the death penalty in the English Speaking Caribbean [hereinafter ESC]11, an area of the world in which I have lived and whose legal trends I monitor. These statistics from our country contrasted with several cases I have been following of women on death row in the nation of Trinidad and Tobago leads one to speculate, despite Ms. Rapaport’s arguments to the contrary, that there is gender- bias with respect to the imposition and carrying out of the death penalty with respect to women. I believe there is an inherent reluctance to put women to death.
This is not necessarily a bad trend. I do not believe that civilized countries should continue to impose the death penalty on any of its citizens, whether male or female. However, many still do.
This article will address the gender-bias question with respect to the female death penalty debate in Trinidad and Tobago, with special emphasis on the case of Indrawani Pamela Ramjattan. The Privy Council recently remanded her case to the Trinidad Court of Appeal. A decision in her favor in the Court of Appeal may set a regional precedent which will for the first time allow women in the ESC to present defense evidence akin to battered spouse syndrome.12
A review of the female death penalty debate in the ESC may encourage reflection on whether there should be gender limitations placed on the imposition of the use of the death penalty in the United States and other nations that retain the penalty.13
II. A Perspective On The Death Penalty In The Caribbean
A. THE DEATH PENALTY DEBATE
Amnesty International and other Human rights groups report that over half the countries in the world have now abolished the death penalty in law or practice. Specifically, Amnesty International reports that as of April 1998, 63 countries and territories have abolished the death penalty for all crimes, while 91 other countries, a number of which are in the ESC, retain and use the death penalty. 14 A number of human rights groups have decried what they believe to be a resurgence of the use of the death penalty in some of these ESC nations 15 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.16
Recently death warrants have been issued by Jamaica, the Bahamas and Trinidad and Tobago 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 first of these countries to carry 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. 17 The applications of Fisher and Woods are still pending before the Inter American Commission on Human rights. 18 In June of 1999, Trinidad and Tobago hanged reputed drug lord and convicted murderer, Dole Chadee, and eight of his co-defendants in a murder conspiracy case over a three day period. These were the first executions in Trinidad and Tobago since 1994, and only the second since 1979.19
Although I have not limited my research to the Amnesty International and to the Human Rights Watch positions, I often refer to these organizations in this article because they tend to be most active and vocal in seeking the abolition of the death penalty everywhere in the world. For instance, Amnesty International contends that English speaking nations in the Caribbean now have 245 people on Death Row out of a population of approximately 5 million.20 It is reported that Amnesty International and other Human rights groups believe that this rate is one of the highest in the world. 21 The Amnesty International report reveals that Trinidad and Tobago accounts for 103 cases, Jamaica is next with 47 cases, and the Bahamas has 40 such cases. 22 In comparison, the death row rate of the Caribbean is almost four times that of the United States, which has 260 million people and 3,400 awaiting execution.23
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.24 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. 25 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. 26
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 discussion. To do 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.18
B. 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. 19 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. 20
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. 21 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. 22
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 the Jamaica Constitution.
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. 23.
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.24
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. Meanwhile, human rights proponents fear due process will be trampled in the process, especially if executions are carried out while death row prisoners have appeals pending before international bodies.25
My quest for answers to the gender-bias question in death penalty sentences led to a more recent survey of all of the death penalty cases in the Caribbean. 26 This report reveals that Trinidad and Tobago is the only ESC nation with women on death row. Amnesty International reports, as of April 199, there are seventy six men and five women on death row in Trinidad. The report further reveals that there are seven men on death row in Antigua, 24 men on death row in the Bahamas, two men in Barbados, 8 men on death row in Belize, one man in Dominica, twenty three men in Guyana, 8 men in Grenada, forty three men on death row in Jamaica, 3 on St. Kitts and Nevis, 9 men in St. Lucia, and three men on death row in St. Vincent and the Grenadines.27
III. Trinidad, Women on Death Row, and Ramjattan
I recently traveled to Trinidad to learn more about the country and about the women on death row.28 The ESC islands of Trinidad and Tobago 29 form a unitary state, with a parliamentary democracy modeled after the United Kingdom. The country is headed by a president who is elected by the parliament. There is an independent judiciary but constitutional
cases may be appealed to the Judicial Committee of the Privy Council. 30 The two islands host a population of 1.3 million people and comprise a land mass about 1.5 times the size of the state of Rhode Island. The southern most tip of Trinidad is only three miles from the Coast of Venezuela . The major ethnic group is of East Indian descent (40.3%), followed closely by those of African descent (39.5%), 18% of the people are of mixed nationality, while those of European descent comprise .6% of the population. The country is endowed with rich deposits of oil and natural gas and boasted a GDP of $5.4 billion for the year 1996.31
B. Women on Death Row
In my research I have learned of three of the five women on death row in Trinidad. There is Giselle Stafford. She was sentenced to death in 1996 for the murder of a man. Angela Ramdeen was sentenced in 1997 to be hanged. Ms. Ramdeen was convicted for the murder of her two step children. And then there is Indrawani Pamela Ramjattan who went to death row for the 1995 slaying of her common law husband, Alexander Jordan.32
No women have been executed in Trinidad since its independence from Great Britain in 1962. Most of the women on death row are there as a result of some form of domestic violence. A number of women’s groups, as well as Amnesty International, believe that domestic violence against women is a way of life in Trinidad. It is reported that 27 women were murdered in domestic violence encounters in 1998. In total there were a reported 2,282 cases of domestic violence in the same year. Unfortunately, there are only six women’s shelters in the entire nation and no legal aid exists for battered women. What we know as the battered wife syndrome in United States Courts as a defense to assault or homicide of a spouse is unknown in Trinidad.
Such evidence if presented in Trinidadian court can only be used to show “diminished responsibility.”33
C. The Ramjattan Case
Among the women on death row in Trinidad Ms. Ramjattan’s case is the most chronicled
because of interest by women’s groups and human rights activists. Despite Trinidad’s Attorney General’s zeal to carry out the death penalty for all those on death row within the Pratt and Morgan five year limitation 34 local speculation abounds that the government of Basdeo Panday will not execute women.
Indrawani Pamela Ramjattan, Haniff Hillaire, and Denny Baptiste were all convicted in 1995, in a joint trial for the murder of Ramjattan’s common law husband Alexander Jordan at Cumuto, Trinidad. The facts of the case show that Ms. Ramjattan completed the equivalent of an eighth grade education. At the age of 16 her parents accepted money from Alexander Jordan, a man in his thirties, who took Ms. Ramjattan as his common law wife. They had six children together in a ten year period. During this same period Ms. Ramjattan suffered abuse at the hands of Jordan and in 1991 she left him. She took two of her children and went to the town of Sangre Grande and began living with childhood sweetheart, Denny Baptiste. Shortly thereafter, Jordan tracked her down and forcibly broke down Baptiste’s door and took Ms. Ramjattan back to Cumuto. Upon arrival in Cumuto he beat her unconscious.35
Shortly thereafter, Ms. Ramjattan wrote a letter to Baptiste and Hillaire, his friend who lived in the same housing complex, to come to Cumuto to rescue her. Ms. Ramjattan swore in a court affidavit that she did summon Baptiste and Hillaire but never asked them to kill her husband.36 Nevertheless, the evidence further showed that late on the night of February12, 1991, Ms. Ramjattan met Baptiste and Hillaire behind here house. She gave them a piece of wood and directed the two men to the area in the house where Alexander was sleeping. Baptiste and Hillaire entered the home and struck Jordan in the head several times with the piece of wood while he lay sleeping. They then rolled his body in a bed sheet, transported him to Jordan’s van, and placed him inside. According to testimony, Ms. Ramjattan brought kerosene to the two men who then sprinkled it on Jordan’s body and set him and the van afire. An autopsy showed that Jordan had died from three blows to his head which fractured his skull. His body was also covered with first degree burns.37
Ms Ramjattan was pregnant by Baptiste when she was taken into custody, after the murder of Jordan. She did not speak to a lawyer until a year into her detention because she had no money to hire a lawyer. The baby later died when prison officials refused to take her to the hospital when she went into labor.38
Following Ms. Ramjattan’s conviction her appeals were heard by the local courts and by the Privy Council which found that her case did not fit the statutory definition of provocation or unlawful force. One of the Privy Council Judges, Lord Browne-Wilkinson, however, had described the case as “tragic” as it was clear that Jordan had “beaten her mercilessly.”39 Ms. Ramjattan’s plight gained the attention of the Coalition Against Domestic Violence in Trinidad and other women’s groups in Kenya, and throughout the world who contend that to hang Ms. Ramjattan would be an injustice, given what they believe to be her unstable mental state at the time of Jordan’s death. A new team of lawyers was assembled which obtained expert evidence on her behalf to take to the Privy Council which alleged that at the time of the murder Ms. Ramjattan suffered emotional and cognitive distortions that would have rendered her psychologically incapable of understanding the consequences of her plan to have Jordan murdered.40
It is interesting to note that at the trial level Ms. Ramjattan’s lawyer chose not to present evidence of her years of abuse. Rather, it was the prosecution that used the abuse evidence to reinforce the argument that Ramjattan had a strong motive to murder her husband. Similarly her lawyers chose not to focus on the abuse in her first appeal to the Privy Council.41
D. The Privy Council Ruling
In late 1998 local attorneys and supporters of Ms. Ramjattan learned through interviews with her on death row the extent of Jordan’s brutality over the years. They hired Joanne Cross a lawyer at the British law form of Slaughter and May to file a new appeal before the Privy Council.42
The new appeal asked the Privy Council to reconsider the case based on new evidence. Said evidence consisted of a 17 page psychiatric report on Ms. Ramjattan by a London based expert on domestic abuse. Forensic psychiatrist Nigel Eastman of London’s St. George’s Hospital Medical School concluded that Ms. Ramjattan was a classic victim of “battered woman syndrome.” The report. also stated that Ms. Ramjattan suffered “repetitive physical violence, culminating in a most severe attack on the 4th of February, repeated rapes…enforced isolation…amounting ultimately to imprisonment as a hostage in the days leading up to the offense, threats to kill, attacks with weapons, threats with a shotgun, worsened violence if she protested, worsened violence when she escaped, humiliation and mental abuse starving and beating their children and refusing to allow them to go to school.”43
Many hoped that the Privy Council would rule in Ms. Ramjattan’s favor and set a precedent for the ESC which would provide that domestic abuse could justify homicide in
self-defense. Fortunately, on February 3, 1999, the Privy Council did rule in Ms. Ramjattan’s favor. However, the ruling did not go as far as her supporters hoped in setting a clear precedent concerning whether abuse can justify homicide in self defense. The ruling did, in fact, send the
case back to the Trinidad Court of Appeal. And perhaps, more importantly, provides Ms. Ramjattan an avenue to escape the gallows.
The Privy Council accepted Ms. Ramjattan’s new evidence as adequate grounds to support her allegation of diminished responsibility on the grounds that she had not previously had the financial resources to procure such evidence.44 The Privy Council, further held, in relevant part:
Their Lordships’ Board has jurisdiction to hear further petitions in respect of the same matter notwithstanding the dismissal of earlier petitions. The jurisdiction will however only be exercised in exceptional cases where new ground of appeal are raised of such a character and of sufficient merit to justify a second petition.
* * * * * *
The petitioner seeks leave to adduce new evidence, not previously relied upon, to support an allegation of diminished responsibility. If she can establish the facts required by s 4A of the Offences Against the Person Act 1925, she would have a defence to the charge of murder.
* * * * * *
On this petition, their Lordships confined their consideration to the question whether a sufficient case had been made out for remission to the Court of Appeal. Having decided to remit, they did not enter upon the question whether the Court of Appeal should accept the new evidence nor what weight the Court of Appeal should give it nor whether it indeed justify the quashing of her conviction for murder and substituting a conviction for manslaughter or the ordering of a retrial. All of these are matters for the Court of Appeal to decide: they may choose to hear oral evidence: evidence in rebuttal of the new evidence may be adduced: what in the upshot the evidence proves and what its admissibility and relevance if called at the trial would have been will have to be assessed as will the petitioners explanation for not having adduced that evidence at trial.
* * * * * * * *
Their Lordships have after some hesitation decided that the evidence of Dr. Eastman does justify a remission to the Court of Appeal so that the Court of Appeal may reconsider the appeal of Indravani Ramjattan taking into account that evidence. They do not overlook that thee are still obstacles to be overcome before she can successfully challenge the jury’s verdict.
* * * * * * * *
It should also be noted that their Lordships’ Board have dismissed the petitions of Denny Baptiste and Haniff Hilaire.45
IV. Back To The Court of Appeal
A. The Personal Interviews
The Privy Council has firmly put the ball back in the Court of the Trinidadian Court of Appeal. Arguments in the case had been set for July 8, 1999, but have been continued by the Court of Appeal to November of 1999. We do not know how long it might take the Court to rule after the arguments.46
While in Trinidad I spoke with Anthony Carmona, Chief Deputy Director of Public Prosecutions, who is writing the brief for the government in the Ramjattan case, and with Rangee Dolsingh, Deputy Director of Public Prosecutions who will argue the case for the government in the Court of Appeal47 After their review of the Privy Council ruling they opined that the Court of Appeal, after hearing arguments, may issue one of three rulings: 1) Find a miscarriage of Justice in the case and order a retrial, 2) Enter a substitution of verdict and reduce the conviction to manslaughter, or 3) Find the psychological evidence not credible, dismiss the appeal and reestablish the original death sentence.48
Mr. Dolsingh indicated that he will argue forcefully that the death sentence should be
upheld. He believes that Ms. Ramjattan is an intelligent woman who has exaggerated the amount
of abuse that she suffered at the hands of her deceased husband. It is his personal belief that the imposition of the death penalty should be gender neutral and that the death penalty should be carried out in Ms. Ramjattan’s case, given the brutality of the crime. Nevertheless, Mr. Dolsingh confided that he believes that public policy in Trinidad will not allow a woman to be hanged.49 This sentiment was echoed by Mr. Justice George A. Edoo, Ombudsman of Trinidad and Tobago with whom I also met during my visit to the country. Mr. Justice Edoo, who during his career presided over numerous murder trials, stated simply that women should not be put to death. He maintains that it is his opinion, and he believes and the opinion of the majority of Trinidadians, that to put a woman to death, any woman, would be like putting your sister or your mother to death. It is too unseemly to contemplate.50 Perhaps, Justice Edo has articulated the root of gender bias in death penalty cases. The unseemly notion of , perhaps, putting our sisters or mothers to death.
I also had the opportunity to speak to others about the issue. Douglas Mendes is one of the attorneys who has worked on the brief for Ms. Ramjattan’s case, as well as, briefs for a number of other death penalty cases. Attorney Mendes was resolute – he does not believe that there should be gender equality in the death penalty – because he believes there should be no death penalty any where in the world.51 Mr. Mendes refused to speculate as to what the Court of Appeal would do with respect to Ms. Ramjattan’s case. I, later, had the opportunity to meet with Attorney Gaitry Pargass, local counsel for Ms. Ramjattan at the time of both her Privy Council appeals. Attorney Pargass believes the best ruling from the Court Appeal would be the order of a new trial, thereby allowing counsel to present the very compelling battered spouse syndrome evidence through expert testimony and eyewitness testimony. She believes such evidence would lead to an acquittal. However, Attorney Pargass confided that Ms. Ramjattan has told her that she does not have the psychological wherewithal to endure a second trial. Attorney Pargass belies that if the Court of Appeal substituted a manslaughter conviction for the capital murder conviction the trial team could then argue for her release on grounds that she had served adequate time for the crime.52
One of my final interviews while in Trinidad was with Keith Renaud, the Assistant
Superintendent of Police. Superintendent Renaud believes that there should not be the amount of crime that his small nation is facing. He believes that the death penalty is needed in Trinidad to send a signal to criminals that the law will be upheld. However, it is his prediction, given the politics of the country, Ms. Ramjattan will not be hanged. The Panday government has shown itself tough on crime by hanging 9 people in the Dole Chadee gang. But it would prove unpopular with the electorate to put one woman to death. He believes that there would be a backlash against the government.53 The irony Renaud points out is that the Prime Minister and his Party, the UNC represent the ethnic majority — those of East Indian descent (40.3% of the population). All nine of the men members of the Dole Chadee gang executed in June were of East Indian descent. This was seen by the public as a bold and popular move to eradicate crime. Yet, Ms. Ramjattan is also of East Indian descent. The majority of people in the country do not believe a woman
should be put to death. Such an execution would harm the goodwill that the Panday government has built. There certainly appears to be gender-bias with respect to the death penalty in Trinidad. I think this is good. Perhaps, a first step to the abolition of the death penalty altogether.
B. The Approach In The United States
It will be interesting to learn how the Court of Appeal will rule in the Ramjattan case.
Trinidad has an opportunity to make new law in this area. I suggested to officials that if there is such widespread feeling against putting women to death legislation could be passed that would recognize and admit at trial evidence of “battered spouse syndrome” . This has been the approach of many states in the United States. Although the approaches taken by courts differ toward the admissibility of battered spouse syndrome, a survey of recent decisions indicates that a majority of the states admit evidence of the battered spouse syndrome.54
Often, in the typical case in the United States in which that battered spouse syndrome evidence is offered in court, the accused woman is charged with killing a man who abused her. Expert testimony is offered in support of her claim of self defense. Some states such as Georgia, Kansas, Maine, New Hampshire, New York, Pennsylvania and Washington, have held expert testimony on the syndrome to be unconditionally admissible; others such as Louisiana, Ohio, and Wyoming, have not admitted evidence of this syndrome.55
In recent years the Florida Supreme Court has also ruled on various aspects the issue. In Florida v. Hickson,56 the Court held that an expert can generally describe the battered spouse syndrome and the characteristic of a person suffering from the syndrome and can express an opinion in response to hypothetical questions predicated on the facts in evidence, but cannot give an opinion based on an interview of the defendant as to applicability of the syndrome to that defendant unless notice of reliance on such testimony is given and the state has the opportunity to have its expert examine the defendant.57 In Weiand v. Florida,58 the same Court ruled that a battered spouse, attacked in her own house, and who raises a self defense claim has no duty to retreat from her house which she shared with the co-occupant who is the victim. Weiand also held that exclusion of eyewitness testimony at trial to corroborate an assertion of prior abuse by the victim spouse was not harmless error, even where expert testimony had already been presented concerning battered spouse syndrome.59
In 1996 the Maryland legislature specifically addressed the issue with an amendment to its laws allowing the state courts to admit battered spouse syndrome evidence in trials wherein the defendant is charged with:
(i) First degree murder, second degree murder, manslaughter, or attempt to commit any of these crimes; or
(ii) Assault in the first degree.60
With respect to the admissibility of such evidence the statute provides, in relevant part:
(b) Admissibility of evidence – Notwithstanding evidence that the defendant was the first aggressor, used excessive force, or failed to retreat at the time of the alleged offense, when the defendant raises the issue that the defendant was, at the time of the alleged offense, suffering from the Battered Spouse Syndrome as a result of the past course of conduct of the individual who is the victim of the crime for which the defendant has been charged, the court may admit for the purpose of explaining the defendant’s motive or state of mind or both, at the time of the commission of the alleged offense:
(1) Evidence of repeated physical and psychological abuse of the defendant perpetrated by an individual who is the victim of a crime for which the defendant has been charged; and
(2) Expert testimony on the Battered Spouse Syndrome.61
Whether these observations on United States law concerning battered spouse syndrome will guide the Court of Appeal in Trinidad is open to conjecture. Ms. Ramjattan’s case differs from what many United States cases involving battered spouse syndrome and does not fit neatly into the Maryland statute. First, Ms. Ramjattan did not deliver the death blows that killed her husband. These were meted out by two male friends to whom she had turned for help. Throughout the trial, she insisted that she called them merely to rescue her, not to kill her husband. The jury did not believe her.62 She was convicted as an aider and abettor – she was, therefore, as guilty as the principals who struck the death blows. Secondly, at trial Ms. Ramjattan did not once utter the words “battered spouse.” Her strategy was simply to say that she was not a party to the violence that killed her husband.
However, as I understand the defense at this point, Ms. Ramjattan’s attorney will use the evidence of her battered state to show that she had a mental state which would have “diminished responsibility” for the crime. That is, her actions as an aider and abettor were a product of the abuse she had suffered for so many years from her husband, and thereby had distorted her mind and mental processes.63
C. The Reluctance To Put Women To Death
Mr. Justice Edoo believes that Ms. Ramjattan’s life will be spared because to execute a woman would be like killing our sisters or our mothers. Another way of expressing this thought may be that society prefers to think of women as passive, not powerful or aggressive. To execute a woman is to acknowledge that women can be violent.64
Leigh Beinen, a law professor who studies gender bias in capital cases, contends the reason so few women face execution has to do with the symbolism that is central to the death penalty. She states “Capital punishment is about portraying people as devils, but women are usually seen as less threatening.”65 Beinen believes that juries and judges tend to find more mitigating factors in capital cases involving women than in ones involving men. She further maintains that women who kill spouses are often seen as victims. Women are likely to kill someone they know without premeditation, which is considered less serious than killing a stranger66
Rapaport, a previously mentioned scholar who does not believe that there is inherent gender-bias with respect to the death penalty in the U.S., argues that most murder, whether committed by men or women, are not sufficiently aggravated to tempt prosecutors to pursue a death penalty.67 She also believes that an important reason why so few women are eligible for capital sentences is that women who kill are more likely than men to kill family and other intimates in anger than for a predatory purpose. Predatory murder is committed to gain some material or other advantage, in contrast with killing that appears to be stimulated by powerful emotion. Felony and other predatory murders are most often committed against strangers and least often committed against family and other intimates.68
Rapaport also reminds us that a majority of death penalty states treat prior history of violence as a factor in aggravation of murder which, if not outweighed by mitigating factors, permits a jury to impose the death penalty. Such factors as prior felony conviction, prior history of violence, and a prior conviction for murder express the condemnation of a history of violence common in the capital statutes.69 In this regard, Rapaport found that twenty per cent of male murders but only 5 per cent of female murders convicted in state courts in 1986 had a prior conviction for a violent felony.70
As a final factor, Rapaport cites the fact some theorize that women are often spared the death penalty because they are viewed by prosecutors and juries to be mere accomplices of dominant males,71 and hence less culpable.
If we apply the theories of Beinen and Rapaport to the three women executed in the U.S. since 1976, one can believe that these women were put to death because their crimes were predatory ones and not simply domestic. First there was Velma Barfield who was put to death in North Carolina in 1984. Although she was a grandmother, prosecutors revealed evidence to show that she a was serial poisoner who was finally convicted for slipping roach killer into her fiancé’s beer.72 Such crimes appear to be predatory.
Then there is the more well known case of Karla Faye Tucker. Tucker was put to death in Texas in 1998. Evidence from her case revealed that while strung out on drugs she and her boyfriend robbed and killed two people by repeatedly assaulting them with a pick ax while the victims were still in their bed. Ms. Tucker, allegedly boasted to confidants after the crime that she had experienced a surge of sexual pleasure every time she swung and hit her victim with the pick ax.73 This certainly appears predatory.
Finally, there is Judy Buenoano who was put to death in Florida in 1998. Dubbed the “Black Widow” by Florida prosecutors, Ms. Buenoano was sentenced to die for the 1971 arsenic poisoning death of her husband in Orlando. She had also been convicted of drowning her disabled 19 year old son in a Santa Rosa County river in 1980 and attempting to kill her fiancé with a car bomb in Pensacola in 1983.74 Here we had predatory crimes as well as prior convictions.
Under the Beinen and Rapaport theories it is understandable to see why these three women were put to death. Their crimes symbolized dark and evil. The work of women who could only be devils.
Could such analysis be applied in Trinidad to the Ramjattan case or to the other women on death row. Perhaps Ms. Ramjattan will not be put to death because she is not much of a devil. Perhaps she will not be put to death because her crime against her husband was not predatory, but had only grown out of a domestic situation gone awry. Also, Ms. Ramjattan has no prior criminal record. Of course, what may be viewed as not predatory in the United States would not pass muster in Trinidad. The prosecutor will argue to the Court of Appeal that Ms. Ramjattan called the killers to her home, she provided them the murder weapon, and then gave them the kerosene with which to set her husband afire. Although seemingly cold-blooded, these do not appear to be predatory acts as defined by Rapaport. They were not performed for material gain. Instead, it appears that revenge was the motive. Yet, Mr. Dolsingh believes the acts of Ms. Ramjattan were as predatory as cunning as those of an animal.
Although we do not know what may be the outcome of the Indravani Pamela Ramjattan case, I am certain that the inherent gender bias with respect to putting women to death will prevail. It is possible that the Court of Appeal of Trinidad will rule in such a way as to establish battered spouse syndrome as a legitimate defense in murder cases where there has been domestic violence. However, courts are usually conservative about forging new law and would rather await input from the legislature. If the Court of Appeal does not decide to over turn the death penalty for Ms. Ramjattan it is possible that the President or the Prime Minister could commute the death sentence to a life sentence. This is not without precedent and may make for a compromise middle ground for the country.
Many remember the actions of two U. S. state governors in 1990 and 1991. In December of 1990, the outgoing governor of Ohio, Richard Celeste, commuted the sentences of twenty five women who had been convicted of killing or assaulting abusive mates. During the next month Governor Celeste commuted to life in prison the sentences for all four women who were on Ohio’s death row. Several months later the governor of Maryland, William Donald Schaefer, commuted the sentences of eight battered women. For a time both governors became the focus of intense media debate which invoked opposing views of justice, mercy, and gender roles75
The Panday government, faced with the inherent gender-bias of the death penalty should
follow the lead of former Governor Celeste and commute to life imprisonment the death sentences of the five women on Trinidad’s death row. As justifications the Panday government could use the justifications of both Governor Celeste and Governor Schaefer: that Ms. Ramjattan and the other women pose no threat to the community; that the women had been trapped in their battering relationships; that the women had served enough time for their crimes; and that commutation was the right thing to do and served the public interest.76
Of course, the Panday government can also do nothing, that is, if the Court of Appeal sustains Ms. Ramjattan’s original death sentence, the Panday government can hold off issuing her death warrant. After September of the year 2000, five years will have elapsed since her original conviction and the death sentenced will automatically be stayed because of Pratt and Morgan. This, I believe will be the ultimate way out for Ms. Ramjattan. In the end Pratt and Morgan may be that double edged sword that allows the government to perpetuate gender-bias with respect to the death penalty in the ESC.
The author intends to continue following the development of the Ramjattan case in Trinidad, as well as the continuing debate concerning the use of the death penalty in the ESC. Hopefully, as a result of gender-bias with respect to the death penalty ESC nations like Trinidad will ban imposing the death penalty on women. This could be one small step on the way to abolishing the death penalty in the ESC altogether.
Although writing a post script to a law review article is a novel concept, unexpected events that arose in this case dictated that I do so. Shortly after the foregoing Article was accepted for publication in its original form by this journal the Court of Appeals in Trinidad stunned the ESC legal community by ruling in favor of Ramjattan, even before oral argument could be heard, Although oral arguments had been set for November 18, 1999, on October 8, 1999, the court of appeal voided Ramjattan’s murder conviction and substituted one of manslaughter. Chief Justice Michael de la Bastide, in an oral opinion, overturned Ramjattan’s death sentence, stated that she had suffered from battered wife syndrome, and as a result suffered “diminished responsibility” for the killing of her husband Alexander Jordan.
In reducing the charges against her, the judge then sentenced Ramjattan to five years in prison, in addition to the eight years she had already endured since first being arrested for the crime. In essence, a precedent was set: for the first time in the ESC, battered wife syndrome was ruled a legitimate defense to a capital murder charge. However, to some the victory is a hollow one because of the five additional years Ramjattan must spend in prison. A Trinidadian newspaper aired the sentiment of many who have followed the case when it opined:
The removal of Indravani Pamela Ramjattam, 36, from death row
was inadequate. She could have been set free given the brutality
she endured which led to her crime…While it is understandable
that the courts would not want to send a signal to abused wives that
conspiring to kill their husbands is a way out, the years Ramjattan
has already spent on Death Row should have been taken into
consideration in passing sentence.
Again, I sought the insight of Rangee Dolsingh as to the turn of events with respect to the actions of the court of appeal. Mr. Dolsingh, who was to argue the case on behalf of the government on November 18, 1999, was also bewildered by the turn of events. He indicated that he still has not learned why the court of appeal made the decision to overturn the murder conviction without further argument. Further, Mr. Dolsingh indicated that he believed it was the psychiatric report of Dr. Nigel Eastman that convinced the court of appeal that there was ample evidence in the record of diminished responsibility because of the amount of abuse and battering suffered by Ramjattan. Mr. Dolsingh believes that the case is not over yet. He maintains that Ramjattan has every right to, once again, go to the Privy Council in an effort to have her sentence reduced to time served.
What we can say with some degree of certainty is that my prediction rang true. The inherent gender-bias with respect to putting women to death saved Ramjattan from the gallows in the English-speaking Caribbean.
This Birdsong article was originally published in the Indiana International & Comparative Law Review, Vol. 10, No. 2 ((2000).
1.Leonard E. Birdsong is Assistant Professor of Law at Barry University of Orlando School of Law. Professor Birdsong received his J. D. degree from Harvard Law School and received his B.A. degree (Cum Laude) from Howard University . He has, also, lived in the Caribbean. During 1988-89, he served as American Consul for Visa Affairs at the American Embassy in Nassau, Bahamas. Earlier in his career, 1984-85, he served as a Special Assistant United States Attorney to the U.S. Virgin Islands. Special thanks are extended to Warren M. McEwen, Jr. and Michael Schau of the Barry University of Orlando School of Law library for their research assistance. Professor Birdsong, also, wishes to thank Professor Stephen Leacock, Visiting Professor from DePaul University College of Law for his encouragement, guidance, and insight leading to the publication of this article.
3. Id. at 4.
4.See, Elizabeth Rapaport, The Death Penalty And Gender Discrimination, Law & Society Review Volume 25, Number 2 (!991). [Hereinafter – Rapaport]
5. Id. at 369.
6. Id. at 369.
7. Id. at 370.
8. Id. at 2.
9. Id. At 2.
10. Id. at 2.
11.5. The countries that comprise the English Speaking Caribbean are: Jamaica, Trinidad and Tobago, Guyana, St. Lucia, St. Kitts and Nevis, Antigua and Barbuda, Grenada, St. Vincent and the Grenadines, Barbados, Dominica, Bahamas and Suriname.
12. A typical definition of “Battered Spouse Syndrome” found in the laws of the State of Maryland recognizes that it is a psychological condition of a victim of repeated physical and psychological abuse by a spouse, former spouse, cohabitant, or former cohabitant which is also recognized in the medical and scientific community as the “battered Woman’s Syndrome.” Annotated Maryland Statutes, Courts and Judicial Proceedings, section 10-916(a)(2).
13. Although it is not and ESC nation, it is interesting to note, in this regard, that in Cuba’s amended criminal laws of 1994, courts are forbidden to impose the death penalty on a pregnant woman. See, Ley No.62, Dodigo Penal, Modificada po el Decreto Ley No. 140, y el Decreto Ley No. 150, de 6 de Junio de 1994.
14. See, Amnesty International Report 50/09/98, Death Penalty. Facts and Figures on the Death Penalty, April 1998.
15. Telephone Interview with Sarah De Cosse, an expert on the Caribbean for Human Rights Watch (January 21, 1999). Ms. DeCosse 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. DeCosse was also quoted with respect to her position by Shelly Emling, Hangings Resume in Caribbean, The Times Picayune, September 27, 1998, at A20.
16. It is reported that the Jamaican police revealed during the week of July 10, 1999, that there have been 486 slayings in that nation of 2.6 million people so far this year. See, Jamaicans Protest Extradition of Suspect in 1,500 Deaths, The Orlando Sentinel, July 10, 1999, at A9.
17. 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].
18.See, Amnesty International, Bahamas – Hanging Challenge International Human Rights Protection System, M2 Presswire (London), October 1998 [hereinafter Presswire – Hanging].
See, Mark Wilson, EU Protests as Three Hanged In Trinidad, Electronic Telegraph(Port of Spain), June 5, 1999, Issue 147, available in LEXIS.
20.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].
21.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].
22. Amnesty International – 250 on Death Row, supra note 7.
23.Amnesty International – 250 on Death Row, supra note 7.
24.Kovaleski – Washington Post, supra note 8.
25.Kovaleski – Washington Post, supra note 8.
26.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. Id. at 35.
20.Id at 35-36.
21. Id. at 33.
22. Id. at 19-27.
23. See, id. at 34-35.
24.See, e.g. USIA Press Summary Sent from AmEmbassy Nassau to U.S. Department of State, Washington, D.C., October 15, 1998.
26. See, Jonathan O’Donohue, Death Penalty Caribbean, ESC Numbers on Death Row and Dates of Last Executions as of April 1999, Amnesty International Secretariat (London).
28. The author visited Trinidad from June 18 through June 22, 1999.
29. Hereinafter referred to as Trinidad.
30. See, U.S. Department of State, Background Notes: Trinidad and Tobago, released by the Bureau of Inter-American Affairs (March 1998).
32. See, Avian Joseph, Trinidad and Tobago: To Hang or Not To Hang, The Debate Continues, Inter Press Service, February 10, 1998.
33. Telephone Interview with Jonathan O’Donohue, a death penalty expert for Amnesty International, London (June 9, 1999).
34. See, Linda Hutchinson, Trinidad, Caribbean Question Privy Council Ruling, Cana News Agency (Trinidad) January 28, 1999, released by OAS department of Public Information.
35. See, Their Chilling Journey To Death Row, Sunday Newsday (Trinidad), June 20, 1999, at A10. [Hereinafter – Journey To Death Row].
36. See, Mark Fineman, The Case of the Death Row Widow, Los Angeles Times, January 27, 1999, at A1.[hereinafter Fineman – Widow].
37. See, Journey To Death Row, supra. at note 34.
38. See, Wesley Gibbs, Rights-Trinidad and Tobago: Merciless Murderer or Victim, Inter Press Service (Trinidad), November 19, 1998.
39. See ,Gibbs – Merciless, supra at note 37.
40. Gibbs – Merciless, supra at note 37
41. See, Fineman – Widow, supra at note 35.
42. See Fineman – Widow, supra at note 35.
43. See, Fineman – Widow, supra at note 35.
46. Telephone Interview with Rangee Dolsingh, Deputy Director of Public Prosecutions,
(July 15, 1999).
47. I met and interviewed these officials at the Office of Public Prosecutions, Port of Spain, Trinidad on June 21, 1999.
48. Interview with Anthony Carmona, Chief Deputy Director of Public Prosecutions, at port of Spain, Trinidad, June 21, 1999.
49. Interview with Rangee Dolsingh, Deputy Director of Public Prosecutions, at Port of Spain, Trinidad, June 21, 1999.
50. Interview with Justice George A. Edoo, Ombudsman of Trinidad and Tobago, at the Office of the Ombudsman, June 21, 1999.
51. Interview with Attorney Douglas Mendes, Port of Spain, Trinidad, June 21, 1999.
52. Interview with Attorney Gaitry Pargass, Port of Spain, Trinidad, June 21, 1999.
53. Interview with Keith Renaud, Assistant Superintendant of Police, Port of Spain, Trinidad, June 21, 1999.
54. See, Note, A Trend Emerges: A State Survey on the Admissibility of Expert Testimony Concerning the Battered Woman Syndrome, 25 J. Fam. L. 373, 396 (1986-87).
55. See, Charles Bleil, Evidence of Syndromes: No Need For a “Better Mousetrap”, 32 S. Tex. L. rev. 37 (1990) at 40.
56. Florida v. Hickson, 630 So. 2d 172 (1994).
57. Id at 173.
58. Weiand v. Florida, 24 Fla. L. Weekly S124 (March11, 199)
59. Id. at 12.
60. Annotated Statutes of Maryland, Courts and Judicial Proceedings, section 10-916 (1996).
62. See, Tunku Varadarajan, Battered But Not Yet Beaten, The Times (London), October 13, 1998.
64. See, Every Woman Conversations, Readers Back Equality In Death Penalty, The Plain Dealer(Cleveland), February 17, 1998, at 3E.
65. See, Thad Reuter, Why Women Aren’t Executed: Gender Bias And The Death Penalty, 23 Fall Hum. Rts. 10 (1996) at 10.
66. Id. at 10.
67. See, Rapaport, supra note 4, at 370.
68. Id. at 371.
69. Id. at 372.
70. Id. at note 11, at 372.
71. Id. at 373
72. See, News, To Kill A Woman/Gender Fuels Debate in Death Penalty Case, Newsday, January 12, 1998, at A17.
73. See, Sam Howe Verhovek, Women On Death Row Should Texas Kill Her?, Sun-Sentinel (Ft. Lauderdale), January 4, 1998, at 3A.
74. See, Equity On Death Row, Sarasota Herald-Tribune, March 21, 1998, at A18.
75. See, Joan H. Krause, Of Merciful Justice and Justified Mercy: Commuting The Sentences of Battered Women who Kill, 46 Fla. L. Rev. 699,704 (1994).
76. Id. at 743.