...continued 111.
According to the legislation, however, this is subject to one
exception. Article 3(2) of the Act
specifically exempts from the death penalty female offenders who are
convicted of offenses punishable with death, but who are found by a jury
to be pregnant: 3(2) Where a woman convicted of an offence punishable with death is found in accordance with the provisions of this section to be pregnant, the sentence to be passed on her shall be a sentence of imprisonment with or without hard labour for life instead of sentence of death. (3)
Where a woman convicted of an offence punishable with death alleges
that she is pregnant, or where the court before whom a woman is so
convicted thinks fit to order, the question whether or not the woman is
pregnant shall, before sentence is passed on her, be determined by a jury. (4) Subject to the provisions of this subsection, the said jury shall be the trial jury, that is to say the jury to whom she was given in charge to be tried for the offence, and the members of the jury need not be re-sworn: Provided
that- (a)
if any member of the trial jury, after the conviction, dies or is
discharged by the court as being through illness incapable of continuing
to act for any other cause, the inquiry as to whether or not the woman is
pregnant shall proceed without him; and (b)
where there is no trial jury, or where a jury have disagreed as to
whether the women is or is not pregnant, or have been discharged by the
court without giving a verdict on that question, the jury shall be
constituted as if to try whether or not she was fit to plead, and shall be
sworn in such manner as the court may direct. (5)
The question whether the woman is pregnant or not shall be
determined by the jury on such evidence as may be laid before them either
on the part of the woman or on the part of the Crown, and the jury shall
find that the woman is not pregnant unless it is proved affirmatively to
their satisfaction that she is pregnant. (6)
Where in proceedings under this section the jury finds that the
woman in question is not pregnant the woman may appeal under the
Judicature (Appellate Jurisdiction) Act, to the Court of Appeal and that
Court, if satisfied that for any reason the finding should be set aside,
shall quash the sentence passed on her and instead thereof pass on her a
sentence of imprisonment with or without hard labour for life:
Provided
that the operation of the provisions of this subsection shall be deemed to
be coincident with the operation of the Judicature (Appellate
Jurisdiction) Act.
112.
Therefore, the penalty for a female offender who is convicted of a
capital or multiple non-capital murder, but who is found by a jury to be
pregnant, is a sentence of imprisonment with or without hard labour for
life instead of a sentence of death.
113.
As indicated in III.A.3.a of this Report, the Petitioners in all
four of the cases before the Commission have alleged that the sentencing
of the victims to mandatory death penalties violates one or more of
Articles 4(1), 4(2), 4(3), 5(1), 5(2), 5(4), 8(1), 8(2), 24 and 25 of the
Convention. In particular,
the Petitioners argue that although the death penalty is only imposed in
capital or multiple non-capital cases, the distinction between these
categories of murders and non-capital murders for which the death penalty
is not imposed fails to allow for considerations of the particular
circumstances of each offence and offender, including relevant aspects of
the character and record of each defendant.
As a consequence, the Petitioners claim that mandatory sentencing
for capital and multiple non-capital murders violates the Convention.
The Petitioners also argue that the process for granting amnesty,
pardon or commutation of sentence in Jamaica does not provide an adequate
opportunity for considering individual circumstances, and in itself is
inconsistent with Article 4(6) of the Convention.
114.
In addressing the Petitioners' allegations, the Commission will
first analyze the compatibility of mandatory death sentences for the
crimes of capital and multiple non-capital murder with Articles 4, 5 and 8
of the Convention, in light of the terms of those provisions, their
underlying principles, and relevant international and domestic precedents.
The Commission will then determine whether the State has violated the
Convention rights of the victims in the cases within this Report, because
of the manner in which those victims have been sentenced to death.
2. Articles 4, 5 and 8 of the
Convention and the Mandatory Death Penalty 115. In light of the allegations raised by the Petitioners, the Commission must first ascertain whether the practice of imposing the death penalty through mandatory sentencing is compatible with Article 4 (right to life), Article 5 (right to humane treatment), and Article 8 (right to a fair trial) of the Convention and the principles underlying those provisions. 116.
Article 4 of the American Convention provides as follows:
Article 4. Right to Life 1. Every person has the right to have his life respected.
This right shall be protected by law and, in general, from the
moment of conception. No one
shall be arbitrarily deprived of his life. 2. In countries that have not abolished the death penalty, it may be
imposed only for the most serious crimes and pursuant to a final judgment
rendered by a competent court and in accordance with a law establishing
such punishment, enacted prior to the commission of the crime.
The application of such punishment shall not be extended to crimes
to which it does not presently apply. 3. The death penalty shall not be reestablished in states that have
abolished it. 4. In no case shall capital punishment be inflicted for political
offenses or related common crimes. 5. Capital punishment shall not be imposed upon persons who, at the
time the crime was committed, were under 18 years of age or over 70 years
of age; nor shall it be applied to pregnant women. 6.
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. 117.
Article 4 of the Convention thus permits States Parties that have
not abolished the death penalty to continue to impose it.
At the same time, the Convention strictly regulates the manner in
which the death penalty may be imposed by those States Parties.
This restrictive approach to the implementation of the death
penalty mirrors the treatment of the death penalty generally under
contemporary international and, as the next section of this Report will
indicate, domestic practice. 118.
Drawing in part upon the past experience of international human
rights bodies, several general principles of interpretation can be
identified in respect of the death penalty provisions of international
human rights instruments in general, and Article 4 of the Convention in
particular. First, the
supervisory bodies of international human rights instruments have
subjected the death penalty provisions of their governing instruments to a
rule of restrictive interpretation. In
its Advisory Opinion on Restrictions to the Death Penalty under Articles
4(1) and 4(4) of the Convention, for example, the Inter-American Court of
Human Rights adopted a restrictive approach to Article 4 of the
Convention, finding that “the text of the article as a whole reveals a
clear tendency to restrict the scope of this penalty both as far as its
imposition and its application are concerned”.[37] 119.
Other international human rights supervisory bodies have similarly
afforded a strict interpretation to the death penalty provisions of human
rights treaties. The U.N.
Human Rights Committee has held in the context of Article 6 of the ICCPR,
which parallels Article 4 of the Convention in many respects,[38]
that the law must strictly control and limit the circumstances in which a
person may be deprived of his life by the authorities of the state.[39]
The Committee has accordingly determined that the imposition of a
sentence of death upon conclusion of a trial in which the provisions of
the Covenant have not been respected constitutes, if no further appeal
against the sentence is possible, a violation of Article 6 of the
Covenant. Its recommended
remedies in such cases have included release[40] and commutation of the
death sentence.[41]
The U.N. Special Rapporteur on Extra-Judicial, Summary or Arbitrary
Executions has likewise emphasized that proceedings leading to the
imposition of capital punishment must conform to the highest standards of
independence, competence, objectivity and impartiality of judges and
juries and other strict requirements of due process.[42] This Commission has also
closely scrutinized the circumstances of death penalty cases to ensure
strict compliance with the requirements of due process and judicial
protection.[43]
120.
It is also generally recognized that the death penalty is a form of
punishment that differs in substance as well as in degree in comparison
with other means of punishment. It
is the absolute form of punishment that results in the forfeiture of the
most valuable of rights, the right to life and, once implemented, is
irrevocable and irreparable. As
the United States Supreme Court has observed, “the penalty of death is
qualitatively different from a sentence of imprisonment, however long.
Death, in its finality, differs more from life imprisonment than a
100-year prison term differs from one of only a year or two.
Because of that qualitative difference, there is a corresponding
difference in the need for reliability in the determination that death is
the appropriate punishment in a specific case.”[44]
In the Commission's view, the fact that the death penalty is an
exceptional form of punishment must also be considered in interpreting
Article 4 of the American Convention. 121.
Finally, with respect to the restrictions prescribed in Article 4
of the American Convention in particular, the Inter-American Court has
identified three principal limitations explicitly prescribed in Article 4
on the ability of States Parties to the Convention to impose the death
penalty: Thus,
three types of limitations can be seen to be applicable to States Parties
which have not abolished the death penalty.
First, the imposition or application of this sanction is subject to
certain procedural requirements whose compliance must be strictly observed
and reviewed. Second, the application of the death penalty must be limited
to the most serious common crimes not related to political offenses.
Finally, certain
considerations involving the person of the defendant, which may bar the
imposition or application of the death penalty, must be taken into account.[45]
[emphasis added] 122.
The Court’s observations therefore accentuate the significance of
strict adherence to and review of due process guarantees in implementing
the death penalty in accordance with Article 4 of the Convention.
Moreover, as part of that process, the Court indicates that certain
circumstances of individual offenses and individual defendants may bar the
imposition or application of the death penalty altogether, and therefore
must be taken into account in sentencing an individual to death. 123.
It is in light of the foregoing interpretive rules and principles
that the Commission must determine whether the practice of imposing the
death penalty through mandatory sentencing is compatible with the terms of
Articles 4, 5 and 8 of the Convention and the principles underlying those
provisions. 124.
The Commission recognizes that the State, like many other
jurisdictions that have retained capital punishment, has created a
distinction in its criminal law between capital and non-capital murder.
By doing so, the State has limited punishment by the death penalty
to more narrowly defined categories of crimes than murder simpliciter.
In the Commission's view, this development is consistent with the
reductive interpretation of Article 4 of the Convention enunciated by the
Inter-American Court, and the Commission commends the State for taking
this initiative. 125.
Notwithstanding the prescribed distinction between capital and
non-capital murder, it remains the case in Jamaica that the death penalty
is imposed in capital and multiple non-capital cases through mandatory
sentencing. In the
Commission’s view, three aspects of imposing mandatory death penalties
are problematic in the context of a proper interpretation and application
of the Convention, even when applied to limited categories of murder.
First, it is well-recognized that the crime of murder, even when
defined through categories akin to "capital" and
"non-capital" murder, can be perpetrated in the context of a
wide variety of mitigating and aggravating circumstances, with varying
degrees of gravity and culpability.[46]
This conclusion is illustrated by, for example, the broad definition of
certain categories of capital murder under Jamaican law, such as murder
committed by a person in the course or furtherance of a robbery.[47]
Notwithstanding the breadth of circumstances that might fall within these
legal definitions, however, the mandatory death penalty seeks to impose
capital punishment in all cases of capital and multiple non-capital
murders, without distinction, save that provided in respect of pregnant
offenders. It subjects an
individual who, for example, commits a capital murder in a impulsive act
of passion or anger, to the equivalent and exceptional punishment as an
individual who executes a capital murder after careful planning and
premeditation. 126.
Indeed, by its very nature, mandatory sentencing precludes
consideration of whether the death penalty is an appropriate or
permissible form of punishment in the circumstances of a particular
offender or offense. Moreover,
by reason of its compulsory and automatic application, a mandatory
sentence cannot be the subject of an effective review by a higher court.
Once a mandatory sentence is imposed, all that remains for a higher
court to review is whether the defendant was properly convicted of an
offense for which the death sentence is the prescribed punishment. 127.
In the Commission’s view, these aspects of mandatory death
sentences cannot be reconciled with Article 4 of the Convention in several
respects. As noted above, the
mandatory death penalty in Jamaica imposes the death penalty on all
individuals convicted of capital or multiple non-capital murders, despite
the fact that such crimes can be committed with varying degrees of gravity
and culpability. Moreover, in
the case of Article 2 of Jamaica's Offences
Against the Person Act, the law presumes that the murder of certain
individuals, for example judges or witnesses, will, by virtue of the
person's employment, position or status alone warrant the imposition of
the death penalty in all cases. While
the status of an individual may be a significant aggravating factor in
determining whether the death penalty is an appropriate punishment,
Jamaican law permits no account to be taken of the circumstances in which
a particular murder may be committed or the degree of culpability of the
offender. It also allows for
no comparison with murders involving individuals not falling within the
prescribed categories, for example children, but which may in their
circumstances be considered equally or more grave or culpable.
Not only does this practice fail to reflect the exceptional nature
of the death penalty as a form of punishment, but, in the view of the
Commission, it results in the arbitrary deprivation of life, contrary to
Article 4(1) of the Convention. 128.
More particularly, imposing a mandatory death penalty for all
crimes of capital or multiple non-capital murders prohibits a reasoned
consideration of each individual case to determine the propriety of the
punishment in the circumstances. By its nature, then, this process eliminates a reasoned basis
for sentencing a particular individual to death, and fails to allow for
rational and proportionate connections between individual offenders, their
offenses, and the punishment imposed on them.
Implementing the death penalty in this manner therefore results in
the arbitrary deprivation of life, within the ordinary meaning of that
term and in the context of the object and purpose of Article 4(1) of the
Convention. 129.
Accepted principles of treaty interpretation suggest that
sentencing individuals to the death penalty through mandatory sentencing
and absent consideration of the individual circumstances of each offender
and offense leads to the arbitrary deprivation of life within the meaning
of Article 4(1) of the Convention. Article
31(1) of the Vienna Convention on the Law of Treaties provides that a
treaty shall be interpreted “in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context
and in light of its object and purpose.” In this regard, the ordinary
meaning of the term “arbitrary” connotes an action or decision that is
based on random or convenient selection or choice rather than on reason or
nature.[48]
The U.N. Human Rights Committee suggested a similar meaning for the
term "arbitrary" in the context of Article 6(1) of the ICCPR, in
the case of Kindler v. Canada.[49]
In that case, the victim, a citizen of the United States, was ordered
extradited from Canada to face a possible death sentence in the State of
Pennsylvania for a murder conviction.
The Committee ultimately found that Canada did not violate the
victim’s right under Article 6(1) of the ICCPR not to be arbitrarily
deprived of his life, by extraditing him to the United States without
first seeking assurances from the U.S. Government that the death penalty
would not be imposed. In so
concluding, the Committee suggested that Canada’s decision not to refuse
extradition or to seek assurances, in order not to be considered
arbitrary, must be shown to have been based upon a reasoned consideration
of the circumstances of Mr. Kindler’s case: While
States must be mindful of the possibilities for the protection of life
when exercising their discretion in the application of extradition
treaties, the Committee does not find that the terms of article 6 of the
Covenant necessarily require Canada to refuse to extradite or to seek
assurances. The Committee
notes that the extradition of Mr. Kindler would have violated Canada’s
obligations under article 6 of the Covenant, if the decision to extradite
without assurances would have been taken arbitrarily or summarily.
The evidence before the Committee reveals, however, that the
Minister of Justice reached a decision after hearing argument in favor of
seeking assurances. The
Committee further takes note of the reasons given by Canada not to seek
assurances in Mr. Kindler’s case, in particular, the absence of
exceptional circumstances, the availability of due process, and the
importance of not providing a safe haven for those accused of or found
guilty of murder.[50] 130.
The Committee has therefore suggested that an arbitrary decision
includes one that is taken in the absence of a reasoned consideration of
the circumstances of the case in respect of which the decision is made.
In this respect, the mandatory death penalty can be regarded as
arbitrary within the ordinary meaning of that term and in the context of
the Convention as a human rights instrument.
In Jamaica, for example, the decision to impose the death penalty
on a person for the crime of capital or multiple non-capital murder
through a mandatory sentence is not based upon a reasoned consideration of
a particular defendant’s case or upon objective standards that guide
courts in identifying circumstances in which the death penalty may or may
not be an appropriate punishment. Rather, the penalty flows automatically
once the elements of the offenses of capital or multiple non-capital
murders have been established. The
death penalty is also imposed regardless of the relative degree of gravity
of the offense or culpability of the offender. 131.
The mandatory death penalty cannot be reconciled with Article 4 of
the Convention in another significant respect.
As noted previously, the Inter-American Court has emphasized
several restrictions upon the implementation of the death penalty that
flow directly from the terms of Article 4 of the Convention.
These include considerations relating to the nature of a particular
offense, for example whether it can be considered a political or related
common offense, as well as to factors concerning the circumstances of an
individual offender, for example the offender's age at the time he or she
committed the crime for which the death penalty may be imposed.
In this manner, Article 4 of the Convention itself presumes that
before capital punishment may be lawfully imposed, there must be an
opportunity to consider certain of the individual circumstances of an
offender or an offense. By
its very nature, however, mandatory sentencing imposes the death penalty
for all crimes of murder and thereby precludes consideration of these or
any other circumstances of a particular offender or offense in sentencing
the individual to death. In
Jamaica, this is subject to the exception in Article 3(2) to 3(6) of the
Offences Against the Person Act, whereby a mechanism is prescribed for
exempting pregnant offenders who are convicted of capital or multiple
non-capital murders from sentences of death. 132.
Similarly, by reason of its compulsory nature, a mandatory death
sentence precludes any effective review by a higher court as to the
propriety of a sentence of death in the circumstances of a particular
case. As indicated
previously, once a mandatory sentence is imposed, all that remains for a
higher court to review is whether the defendant was properly found guilty
of a crime for which the sentence was mandated.
There is no opportunity for a reviewing tribunal to consider
whether the death penalty was an appropriate punishment in the
circumstances of the particular offense or offender.
This consequence cannot be reconciled with the fundamental
principles of due process under Articles 4 and 8 of the Convention that
govern the imposition of the death penalty, which, as the Inter-American
Court has recognized, include strict observance and
review of the procedural requirements governing the imposition or
application of the death penalty. The
absence of effective review further illustrates the arbitrary nature of
implementing the death penalty through mandatory sentencing, and leads the
Commission to conclude that this practice cannot be reconciled with the
terms of Article 4 of the Convention and its underlying principles. 133.
The Commission is also of the view that imposing the death penalty
through mandatory sentencing is not consistent with the terms of Article 5
of the Convention or its underlying principles.
Article 5 of the Convention provides as follows: Article
5 – Right to Humane Treatment 1. Every person has the right to have his physical, mental, and moral
integrity respected. 2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.
3. Punishment shall not be extended to any person other than the
criminal. 4. Accused persons shall, save in exceptional circumstances, be
segregated from convicted persons, and shall be subject to separate
treatment appropriate to their status as unconvicted persons. 5. Minors while subject to criminal proceedings shall be separated
from adults and brought before specialized tribunals, as speedily as
possible, so that they may be treated in accordance with their status as
minors. 6. Punishments consisting of deprivation of liberty shall have as an
essential aim the reform and social readaptation of the prisoners. 134.
Among the fundamental principles upon which the American Convention
is grounded is the recognition that the rights and freedoms protected
thereunder are derived from the attributes of the human personality.[51]
From this principle flows the basic requirement underlying the Convention
as a whole, and Article 5 in particular, that persons be treated with
individual dignity and respect. Accordingly,
Article 5(1) guarantees to each person the right to have his or her
physical, mental, and moral integrity respected, and Article 5(2) requires
all persons deprived of their liberty to be treated with respect for the
inherent dignity of the human person.
These guarantees presuppose that persons protected under the
Convention will be regarded and treated as individual human beings,
particularly in circumstances in which a State Party proposes to limit or
restrict the most basic of the rights and freedoms of an individual, such
as the right to liberty. In
the Commission's view, consideration of respect for the inherent dignity
and value of individuals is especially crucial when determining whether a
person should be deprived of his or her right to life. 135.
The mandatory imposition of the death penalty, however, has both
the intent and the effect of depriving a person of their right to life
based solely upon the category of crime for which the offender is found
guilty, without regard for the offender’s personal circumstances or the
circumstances of the particular offense.
The Commission cannot reconcile the essential respect for the
dignity of the individual that underlies Article 5(1) and 5(2) of the
Convention, with a system that deprives an individual of the most
fundamental of rights without considering whether this exceptional form of
punishment is appropriate in the circumstances of the individual’s case. 136.
Finally, the Commission considers that mandatory death sentences
cannot be reconciled with an offender’s right to due process, as
provided for in Article 8 of the Convention.
It is well-established that proceedings leading to the imposition
of capital punishment must conform to the highest standards of due
process. The due process
standards governing accusations of a criminal nature against an individual
are prescribed in Article 8(1) and 8(2) of the Convention, and include
the right to a hearing before a competent, independent and impartial
tribunal, the right of the accused to defend himself or herself,
personally or by counsel, and the right to appeal the judgment to a higher
court. In addition, as noted previously, Article 4 of the Convention
provides that the death penalty should be imposed only for the most
serious offenses, and contemplates that certain factors attributable to a
particular offender or offense may bar the imposition of the death penalty
altogether in the circumstances of a particular case. 137.
In the Commission’s view, therefore, the due process guarantees
under Article 8 of the Convention, when read in conjunction with the
requirements of Article 4 of the Convention, presuppose as part of an
individual’s defense to a capital charge an opportunity to make
submissions and present evidence as to whether a death sentence may not be
a permissible or appropriate punishment in the circumstances of his or her
case. This may be on the
basis, for example, that the crime for which they have been convicted
should be considered a political or related common crime within the
meaning of the Convention. The
due process guarantees should also be interpreted to include a right of
effective review or appeal from a determination that the death penalty is
an appropriate sentence in a given case. 138.
The mandatory imposition of the death sentence is inherently
antithetical to these prerequisites.
By its nature, it precludes any opportunity on the part of the
offender to make representations or present evidence as to whether the
death penalty is a permissible or appropriate form of punishment, based
upon the considerations in Article 4 of the Convention or otherwise.
Again, this is subject to the exception under Article 3(2) to 3(6)
of Jamaica's Offences Against the
Person Act applicable to pregnant offenders. Also, as noted
previously, mandatory sentencing precludes any effective review by a
higher court of a decision to sentence an individual to death.
These violations of Article 8 of the Convention in turn compound
the arbitrary nature of any deprivation of life perpetrated pursuant to
mandatory sentences, contrary to Article 4(1) of the Convention. 139.
Contrary to the current practice in Jamaica, the Commission
considers that imposing the death penalty in a manner which conforms with
Articles 4, 5 and 8 of the Convention requires an effective mechanism by
which a defendant may present representations and evidence to the
sentencing court as to whether the death penalty is a permissible or
appropriate form of punishment in the circumstances of their case.
In the Commission’s view, this includes, but is not limited to,
representations and evidence as to whether any of the factors incorporated
in Article 4 of the Convention may prohibit the imposition of the death
penalty. 140.
In this regard, as the following discussion of international and
domestic jurisdictions will indicate, a principle of law has developed
common to those democratic jurisdictions that have retained the death
penalty, according to which the death penalty should only be implemented
through “individualized” sentencing.
Through this mechanism, the defendant is entitled to present
submissions and evidence in respect of all potentially mitigating
circumstances relating to his or her person or offense, and the court
imposing sentence is afforded discretion to consider these factors in
determining whether the death penalty is a permissible or appropriate
punishment. 141.
Mitigating factors may relate to the gravity of the particular
offense or the degree of culpability of the particular offender, and may
include such factors as the offender’s character and record, subjective
factors that might have motivated his or her conduct, the design and
manner of execution of the particular offense, and the possibility of
reform and social readaptation of the offender.
Consistent with the foregoing discussion, the Commission considers
that the high standards of due process and humane treatment under Articles
4, 5 and 8 of the Convention governing the lawful imposition of the death
penalty should also be interpreted to require individualized sentencing
in death penalty cases.[52]
In the Commission’s view, this is consistent with the restrictive
interpretation to be afforded to Article 4 of the Convention, and in
particular the Inter-American Court’s view that Article 4 of the
Convention should be interpreted “as imposing restrictions designed to
delimit strictly the scope and application of the death penalty, in order
to reduce the application of the penalty to bring about its gradual
disappearance.”[53]
142.
As the Commission noted previously, Jamaica has already considered
it appropriate to prescribe in its legislation a mechanism by which a jury
may determine whether an individual female offender should be spared the
death penalty because she is pregnant.
The Commission therefore considers that the foundation already
exists under Jamaican law to extend this mechanism, or to develop a
comparable mechanism, to permit a jury to consider other potentially
mitigating factors pertaining to an offender in determining whether the
death penalty should be imposed in the circumstances of the offender's
case. 143.
In light of the foregoing analysis, the Commission considers that
imposing the death penalty through mandatory sentencing, as Jamaica has
done in respect of crimes of capital and multiple non-capital murders, is
not consistent with the terms of Article 4(1), 5(1), 5(2), 8(1) and 8(2)
of the Convention and the principles underlying those Articles. 3. Individualized Sentencing
in Other International and Domestic Jurisdictions 144.
The experience of other international human rights authorities, as
well as the high courts of various common law jurisdictions that have, at
least until recently, retained the death penalty, substantiates and
reinforces an interpretation of Articles 4, 5, and 8 of the Convention
that prohibits mandatory death sentences.
Based upon a study of these various international and domestic
jurisdictions, it is the Commission’s view that a common precept has
developed whereby the exercise of guided discretion by sentencing
authorities to consider potentially mitigating circumstances of individual
offenders and offenses is considered to be a condition sine
qua non to the imposition of capital punishment in accordance with
international human rights standards.
Mitigating circumstances requiring consideration have been
determined to include the character and record of the offender, the
subjective factors that might have influenced the offender’s conduct,
the design and manner of execution of the particular offense, and the
possibility of reform and social readaptation of the offender. 145.
In the case of Lubuto v. Zambia,[54]
for example, the victim had received a mandatory sentence of death for
armed robbery. The U.N. Human
Rights Committee did not address the question of whether mandatory death
penalties per se contravened the
International Covenant on Civil and Political Rights (“ICCPR”). The Committee found, however, that the absence of discretion
on the part of a sentencing authority to consider the particular
circumstances of an offense in determining whether the death penalty is an
appropriate punishment may, in certain circumstances, contravene
internationally-prescribed conditions for implementing capital punishment. In this case, the Committee found that the absence of
discretion contravened the requirement under Article 6(2) of the ICCPR[55]
that the death penalty be imposed “only for the most serious crimes”.
The Committee concluded: Considering
that in this case use of firearms did not produce the death or wounding of
any person and that the court could not under the law take these elements
into account in imposing sentence, the Committee is of the view that the
mandatory imposition of the death sentence under these circumstances
violates article 6, paragraph 2 of the Covenant. 146.
The U.N. Special Rapporteur on Extra-Judicial, Summary or Arbitrary
Executions has suggested more generally that the due process standards
applicable in death penalty proceedings require, inter
alia, that all mitigating factors be taken into account in imposing
sentence: Proceedings
leading to the imposition of capital punishment must conform to the
highest standards of independence, competence, objectivity and
impartiality of judges and juries. All
defendants in capital cases must benefit from the full guarantees for an
adequate defense at all stages of the proceedings, including adequate
provision for State-funded legal aid by competent defense lawyers.
Defendants must be presumed innocent until their guilt has been
proven without leaving any room for reasonable doubt, in application of
the highest standards for the gathering and assessment of evidence.
All mitigating factors must
be taken into account. A
procedure must be guaranteed in which both factual and legal aspects of
the case may be reviewed by a higher tribunal composed of judges other
than those who dealt with the case at the first instance.
In addition, the defendant’s right to seek pardon, commutation of
sentence or clemency must be guaranteed.[56]
[emphasis added] 147.
The highest courts of various common law jurisdictions in which the
death penalty has, at least until recently, been retained have similarly
concluded that the rational, humane and fair imposition of the death
penalty requires discretion on the part of courts to examine the
mitigating circumstances of individual offenders and offenses in
sentencing individuals to death. The
United States Supreme Court in the case of Woodson
v. State of North Carolina[57]
found a mandatory death sentence for first degree murder under the
law of North Carolina to violate the Eighth[58]
and Fourteenth[59] Amendments to the U.S.
Constitution. North Carolina,
like Jamaica, had established distinctions between capital, or first
degree, and non-capital, or second degree, murder, and subjected only the
former category of murder to the death penalty.[60]
The Court nevertheless found North Carolina's law to be unconstitutional.
Among the grounds for the Court’s decision was a finding that the
mandatory death penalty did not satisfy a basic constitutional requirement
that the process for imposing a sentence of death be rational by
incorporating “objective standards” that guide and regularize the
process and make it amenable to judicial review.[61]
The Court also found that the mandatory death penalty failed to
allow the particularized consideration of relevant aspects of the
character and record of each convicted defendant before the imposing upon
him of a sentence of death, and was therefore inconsistent with the
fundamental respect for humanity underlying the prohibition of cruel and
unusual punishment under the Eighth Amendment.
In respect of the latter ground, the Court made the following
compelling observations: In
Furman, members of the Court acknowledged what cannot be fairly
denied–that death is a punishment different from all other sanctions in
kind rather than degree. See
408 US, at 286-291, 33 L Ed 2d 346, 92 S Ct 2726 (Brennan J. concurring);
id., at 306, 33 L Ed 2d 346, 92 S Ct 2726 (Stewart, J., concurring).
A process that accords no significance to relevant facets of the
character and record of the individual offender or the circumstances of
the particular offense excludes from consideration in fixing the ultimate
punishment of death the possibility of compassionate or mitigating factors
stemming from the diverse frailties of humankind.
It treats all persons convicted of a designated offense not as
uniquely individual human beings, but as members of a faceless,
undifferentiated mass to be subjected to the blind infliction of the
penalty of death. This
Court has previously recognized that “[f]or the determination of
sentences, justice generally requires consideration of more than the
particular acts by which the crime was committed and that there be taken
into account the circumstances of the offense together with the character
and propensities of the offender.” Pennsylvania ex rel. Sullivan v.
Ashe, 302 US 51, 55, 82 L Ed43, 58 S Ct 59 (1937). Consideration
of both the offender and the offense in order to arrive at a just and
appropriate sentence has been viewed as a progressive and humanizing
development. See Williams v.
New York, 337 US, at 247-249, 93 L Ed 1337, 69 S Ct 1079; Furman v.
Georgia, 408 US, at 402-3, 33 L Ed 2d 346, 92 S Ct 2726 (Burger C.J.,
dissenting). While the
prevailing practice of individualizing sentencing determinations generally
reflects simply an enlightened policy rather than a constitutional
imperative, we believe that in capital cases the fundamental respect for
humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 US, at
100, 2 L Ed 2d 630, 78 S Ct 590 (plurality opinion), requires
consideration of the character and record of the individual offender and
the circumstances of the particular offense as a constitutionally
indispensable part of the process of inflicting the penalty of death. This
conclusion rests squarely on the predicate that the penalty of death is
qualitatively different from a sentence of imprisonment, however long.
Death, in its finality, differs more from life imprisonment than a
100-year prison term differs from one of only a year or two. Because of
that qualitative difference, there is a corresponding difference in the
need for reliability in the determination that death is the appropriate
punishment in a specific case.[62] 148.
In the case of The State v. Makwanyane and McHunu,[63]
the Constitutional Court of South Africa struck down the death penalty
provision of the Criminal Procedure Act Nº 51[64]
as inconsistent with South Africa’s 1993 Constitution.
As part of its analysis, that Court also suggested that the guided
discretion provided to South African judges to consider the personal
circumstances and subjective factors of a defendant in applying the death
penalty satisfied in part the requirement that the death penalty not be
imposed arbitrarily or capriciously, and reasoned as follows:[65] Basing
his argument on the reasons which found favour with the majority of the
United States Supreme Court in Furman v. Georgia, Mr. Trengove contended
on behalf of the accused that the imprecise language of section 277, and
the unbounded discretion vested by it in the Courts, make its provisions
unconstitutional. [.
. .] Under
our court system questions of guilt and innocence, and the proper sentence
to be imposed on those found guilty of crimes, are not decided by juries.
In capital cases, where it is likely that the death sentence may be
imposed, judges sit with two assessors who have an equal vote with the
judge on the issue of guilt and on any mitigating or aggravating factors
relevant to sentence; but sentencing is the prerogative of the judge
alone. The Criminal Procedure
Act allows a full right of appeal of persons sentenced to death, including
a right to dispute the sentence without having to establish an
irregularity or misdirection on the part of the trial judge.
The Appellate Division is empowered to set the sentence aside if it
would not have imposed such a sentence itself, and it has laid down
criteria for the exercise of this power by itself and other courts.[66]
If the person sentenced to death does not appeal, the Appellate Division
is nevertheless required to review the case and to set aside the death
sentence if it is of the opinion that it is not a proper sentence.[67] Mitigating
and aggravating factors must be identified by the Court, bearing in mind
that the onus is on the State to prove beyond a reasonable doubt the
existence of aggravating factors, and to negate beyond a reasonable doubt
the presence of any mitigating factors relied upon by the accused.[68]
Due regard must be paid to personal circumstances and subjective
factors which might have influenced the accused person’s conduct,[69]
and these factors must then be weighed up with the main objects of
punishment, which have been held to be: deterrence, prevention,
reformation, and retribution.[70] In this
process “[e]very relevant consideration should receive the most
scrupulous care and attention”,[71]
and the death sentence should only be imposed in the most
exceptional cases, where there is no reasonable prospect of reformation
and the objects of punishment would not be properly achieved by any other
sentence. [72] There
seems to me to be little difference between the guided discretion required
for the death sentence in the United States, and the criteria laid down by
the Appellate Division for the imposition of the death sentence.
The fact that the Appellate Division, a court of experienced
judges, takes the final decision in all cases is, in my view, more likely
to result in consistency of sentencing, than will be the case where
sentencing is in the hands of jurors who are offered statutory guidance as
to how that discretion should be exercised.[73] 149.
Similarly, in the case of
Bachan Singh v. State of Punjab,[74]
the appellant argued before
the Supreme Court of India that section 354(3) of the Indian Criminal
Procedure Code of 1973, contravened the requirement under Article 21 of
the Indian Constitution that “[n]o person shall be deprived of his life
or personal liberty except according to procedure established by law”,
because the provision provided judges with too much discretion in
determining whether offenders should be sentenced to death.[75]
The Indian Supreme Court rejected the appellant’s contention in this
regard. This was in part
because, in the Court’s view, it was consistent with the requirements of
Article 21 for the legislation to leave the imposition of the death
penalty to “the judicial discretion of the Courts which are manned by
persons of reason, experience and standing in the profession” who
exercise their sentencing discretion “judicially in accordance with
well-recognized principles crystallised by judicial decisions directed
along the broad contours of legislative policy towards the signposts
enacted in section 354(3).”[76]
In reaching this conclusion, the Court articulated the following
propositions intended to guide judges in India in exercising their
sentencing discretion relating to the death penalty: (a) the normal rule is that the offence of murder shall be punished
with the sentence of life imprisonment. The Court can depart from that rule and impose the sentence
of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the
death sentence. (b)
while considering the question of sentence to be imposed for the
offence of murder under section 302, Penal Code, the Court must have
regard to every relevant circumstance relating to the crime as well as the
criminal. If the Court finds,
but not otherwise, that the offence is of an exceptionally depraved and
heinous character and constitutes, on account of its design and the manner
of its execution, a source of grave danger to the society at large, the
Court may impose the death sentence.[77]
150.
The Court also emphasized the crucial role that mitigating factors
play in the humane imposition of capital punishment.
The Court stated that the “scope and concept of mitigating
factors in the area of the death penalty must receive a liberal and
expansive construction by the Courts in accord with the sentencing policy
written in section 354(3),” and opined that [a]
real and abiding concern for the dignity of human life postulates
resistance to taking a life through law’s instrumentality.
That ought not to be done save in the rarest of rare cases when the
alternative option is unquestionably foreclosed.[78] 151.
The experience in other international and domestic jurisdictions
therefore suggests that a court must have the discretion to take into
account the particular circumstances of an individual offender and offense
in determining whether the death penalty can and should be imposed, if the
sentencing is to be considered rational, humane and rendered in accordance
with the minimum requirements of due process.
The individual circumstances to be considered have been determined
to include the character and record of the offender, the subjective
factors that might have influenced the offender’s conduct, the design
and manner of execution of the particular offense, and the possibility of
reform and social readaptation of the offender.
Authorities in these jurisdictions have also suggested that, in
order to be exercised in a rational and non-arbitrary manner, the
sentencing discretion should be guided by legislative or
judicially-prescribed principles and standards, and should be subject to
effective judicial review, all with a view to ensuring that the death
penalty is imposed in only the most exceptional and appropriate
circumstances. In the
Commission's view, these principles should also be considered in
interpreting and applying Articles 4, 5 and 8 of the Convention, so as to
require individualized sentencing in implementing the death penalty.
To accept any lesser standard would, in the Commission’s view,
fail to afford sufficient protection to the most fundamental of rights
under the Convention. 4.
The Cases Before the Commission a.
Mandatory Death Penalty 152.
As indicated previously, the victims in the four cases that are the
subject of this Report were convicted of capital murder, or multiple
non-capital murders, under Jamaica's Offences Against the Person Act. Murder for the purposes of the Act
is defined as the unlawfully killing of another person with the intent
to kill or to cause serious bodily injury.[79]
Once an offender is found guilty of capital murder, Article
3(1) of the Act requires a court
to impose the death penalty. Similarly,
the death sentence is mandatory for a conviction for multiple non-capital
murders as provided for in Article 3(1A) of the Act.
With the exception of the pregnancy provisions in Article 3(2) to 3(6) of
the Act, there are no provisions
in the Act that permit a judge
or jury to consider the personal circumstances of an offender or his or
her offense, such as the offender’s record or character, the subjective
factors that may have motivated his or her conduct, or the offender’s
likelihood of reform or social readaptation, in determining whether the
death penalty is an appropriate penalty for a particular offender in the
circumstances of the offender’s case.
Upon satisfying the elements of Article 3(1) or 3(1A) of the Act,
death is the automatic penalty. 153.
Consequently, in the cases within this Report, the Commission
concludes that once the victims were found guilty of their crimes, the law
in Jamaica did not permit a hearing by the courts as to whether the death
penalty was a permissible or appropriate penalty for those victims.
There was no opportunity for the trial judge or the jury to
consider such factors as the victims’ characters or records, the nature
or gravity of the offenses, or the subjective factors that may have
motivated the victims’ conduct, in determining whether the death penalty
was an appropriate form of punishment.
The victims were likewise precluded from making representations on
these matters, which accounts for the absence of evidence of such factors
in the records of these cases. The
courts sentenced the victims based solely upon the category of crimes for
which they had been found responsible.
b.
Prerogative of Mercy 154.
The Commission is aware of the Governor General's authority under
the Constitution of Jamaica to grant a pardon or respite, or to substitute
a less severe punishment for that imposed on any person, in death penalty
and other cases, on recommendation of the Jamaican Privy Council.
The Commission does not, however, consider that the exercise of the
Prerogative of Mercy by the Jamaican Privy Council provides an adequate
opportunity consistent with the requirements of Articles 4, 5 and 8 of the
Convention for the proper implementation of the death penalty through
individualized sentencing. The
authority of the Executive in Jamaica to exercise its Prerogative of Mercy
is prescribed in Sections 90 and 91 of the State's Constitution: 90.(1)
The Governor General may, in Her Majesty's name and on Her
Majesty's behalf- (a)
grant to any person convicted of any offence against the law of
Jamaica a pardon, either free or subject to lawful conditions; (b)
grant to any person a respite, either indefinite or for a specified
period, from the execution of any punishment imposed on that person for
such an offence; (c)
substitute a less severe form of punishment for that imposed on any
person for such an offence; or (d)
remit the whole or part of any punishment imposed on any person for
such an offence or any penalty or forfeiture otherwise due to the Crown on
account of such an offence. (2)
In the exercise of the powers conferred on him by this section the
Governor-General shall act on the recommendation of the Privy Council. 91.(1)
Where any person has been sentenced to death for an offence against
the law of Jamaica, the Governor-General shall cause a written report of
the case from the trial judge, together with such other information
derived from the record of the case or elsewhere as the Governor-General
may require, to be forwarded to the Privy Council so that the Privy
Council may advise him in accordance with the provisions of section 90 of
this Constitution. (2) The power of requiring information conferred on the
Governor-General by subsection (1) of this section shall be exercised by
him on the recommendation of the Privy Council or, in any case in which in
his judgement the matter is too urgent to admit of such recommendation
being obtained by the time within which it may be necessary for him to
act, in his discretion.[80]
[37]
I/A Court H.R.,
Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American
Convention on Human Rights), Advisory Opinion OC-3/83, (8 September
1983), Annual Report 1984, p. 31, para. 52. [38]
Article 6 of the
ICCPR provides as follows: Article
6 1. Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of
death may be imposed only for the most serious crimes in accordance
with the law in force at the time of the commission of the crime and
not contrary to the provisions of the present Covenant and to the
Convention on the Prevention and Punishment of the Crime of Genocide.
This penalty can only be carried out pursuant to a final judgment
rendered by a competent court. 3. When deprivation of life constitutes the crime of genocide, it is
understood that nothing in this article shall authorize any State
Party to the present Convention to derogate in any way from any
obligation assumed under the provisions of the Convention on the
Prevention and Punishment of the Crime of Genocide. 4. 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. 5. Sentence of death shall not be imposed for crimes committed by
persons below eighteen years of age and shall not be carried out on
pregnant women. 6. Nothing in this article shall be invoked to delay or to prevent the
abolition of capital punishment by any State Party to the present
Covenant. [39]See
e.g. U.N.H.R.C., Baboheram-Adhin
et al. v. Suriname, Communication Nos. 148-154/1983, 4 April 1985,
para. 14.3. [40]
See
e.g. Anthony McLeod v. Jamaica, Communication Nº 734/1997, U.N.Doc
CCPR/C/62/734/1997. [41]
See
e.g. Patrick Taylor v. Jamaica, Communication Nº 707/1996,
U.N. Doc. CCPR/C/60/D/707/1996. [42]
Report by the U.N. Special Rapporteur on Extra-Judicial Executions,
Mr. Bacre Waly Ndiaye, submitted pursuant to Commission on Human
Rights Resolution 1994/82, Question of the Violation of Human Rights
and Fundamental Freedoms in any part of the World, with particular
reference to Colonial and Other Dependent Countries and Territories,
U.N. Doc. E/CNB.4/1995/61 (14 December 1994) (hereinafter "Ndiaye
Report"), para. 377.
[43]
See
e.g. Case Nº 9260
(Clifton Wright v. Jamaica), Annual Report of the IACHR 1987-88, 16
September 1988, p. 154. [44]
Woodson
v. North Carolina
49 L Ed 2d 944, 961. [45]
Advisory Opinion
OC-3/83, supra, para. 55. [46]
In 1953, the
British Commission on Capital Punishment noted that “there is
perhaps no single class of offences that varies so widely both in
character and culpability as the class comprising those which may fall
within the comprehensive common law definition of murder…no one
would now dispute that for many of these crimes it would be monstrous
to inflict the death penalty. The view is widely accepted that this
penalty should be reserved for the more heinous offences of murder.”
Royal Commission on Capital Punishment, September 1953 Cmnd 8932, Exh.
20. Even in those jurisdictions in which a distinction has been drawn
between capital and non-capital murder, experience indicates that varying
degrees of culpability exist within categories of capital murder which
may warrant discriminate application of the death penalty. See e.g. Woodson v. North Carolina, 49 L Ed 2d 944, 956, n. 31
(indicating that data compiled on discretionary jury sentencing of
persons convicted of capital murder in the United States reveal that
the penalty of death is generally imposed in less that 20% of the
cases). [47]
See
e.g. The State v.
Kevin Mykoo and Martin Dixon, Transcript, Criminal Appeal Nos. 24
& 28/96, at pp. 425, 473 (in instructing the jury on the law
relevant to the case, defining "murder" as occurring when a
person "by his own act caused the death of or inflicted or
attempted to inflict grievous bodily harm on the person
murdered", and that, to find the defendant guilty of capital
murder, it must be shown that he was "present and actively
assisting in the furtherance of the common purpose which in this case
was to rob"). R. v. Cummingham [1982] A.C. 566 (P.C.) (defining
murder as the unlawful killing of another person with the intent to
kill or to cause serious bodily injury.). [48]
Webster’s Third International Dictionary. [49]
U.N.H.R.C., Kindler v. Canada,
Communication Nº 470/1991, U.N. Doc. CPR/C/48/D/470/1991 (1993). [50]
Id.,
para. 14.6. [51]
The Preamble to the Convention recognizes that “the essential rights
of man are not derived from one’s being a national of a certain
state, but are based upon the attributes of the human personality.” [52]
The Commission
refers in this regard to the interpretative approach advocated by the
European Court of Human Rights, that its governing Convention is “a
living instrument which…must be interpreted in light of present-day
conditions.” See Tyrer
v. United Kingdom (1978) 3 E.H.R.R. 1 at para. 31. [53]
Advisory Opinion on the Death Penalty, supra,
at para. 57. [54]
Lubuto v. Zambia (Nº 390/1990), U.N. Doc. CCPR/C/55/D/390/1990/Rev.
1, (October 1995) (U.N. Human Rights Committee), para. 7.2. [55]
Article 6 of the ICCPR provides as follows: Article
6 1.
Every human being has the inherent right to life. This right
shall be protected by law. No one shall be arbitrarily deprived of his
life. 2.
In countries which have not abolished the death penalty,
sentence of death may be imposed only for the most serious crimes in
accordance with the law in force at the time of the commission of the
crime and not contrary to the provisions of the present Covenant and
to the Convention on the Prevention and Punishment of the Crime of
Genocide. This penalty can only be carried out pursuant to a final
judgment rendered by a competent court. 3.
When deprivation of life constitutes the crime of genocide, it
is understood that nothing in this article shall authorize any State
Party to the present Convention to derogate in any way from any
obligation assumed under the provisions of the Convention on the
prevention and punishment of the Crime of Genocide. 4.
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. 5.
Sentence of death shall not be imposed for crimes committed by
persons below eighteen years of age and shall not be carried out on
pregnant women. 6.
Nothing in this article shall be invoked to delay or to prevent
the abolition of capital punishment by any State Party to the present
Covenant. [56]
Ndiaye Report, supra,
para. 377. With respect to international sentencing standards more
generally, the International Criminal Tribunal for the Former
Yugoslavia provides one of the few modern examples of an international
tribunal adjudicating serious violations of international humanitarian
law, including genocide. While the penalty imposed by the Tribunal is
limited to imprisonment, the Tribunal’s governing statute
specifically provides that “[i]n imposing the sentences, the Trial
Chambers should take into account such matters as the gravity of the
offence and the individual circumstances of the convicted person.”
Statute for the International Criminal Tribunal for the former
Yugoslavia, Annex to the Report of the Secretary-General Pursuant to
Paragraph 2 of Security Council Resolution 808, U.N., Doc.
S/25704/Add.1/Corr.1 (1993), Art. 24. See similarly Statute for the International Criminal Tribunal for
Rwanda, Annex to Security Council Resolution 955, U.N. SCOR, 49th
Sess., 3453 mtg., U.N. Doc. S/RES/955 (1994), Art. 23. [57]
Woodson
v. North Carolina
49 L Ed 2d 944. [58]
The Constitution
of the United States, Amendment VIII (1791) (providing “[e]xcessive
bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.”). [59]
Id.
Amendment XIV, Section I (providing “[a]ll persons born or
naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”). [60]
Id.,
at 950, n. 4. [61]
Id. at 960. In its decision
in the case Furman v. Georgia,
408 U.S. 238, the Supreme Court declared the vesting of standardless
sentencing discretion in the jury in imposing capital sentences as
contrary to the Eighth and Fourteenth Amendments. In rejecting North
Carolina’s contention in Woodson
that the inadequacies identified in Furman
were remedied by withdrawing all sentencing discretion from juries in
capital cases, the Court suggested that the mandatory sentencing
scheme was no more rational, as the statute provided “no standards
to guide the jury in its inevitable exercise of the power to determine
which first-degree murderers shall live and which shall die”, and
provided no way for the judiciary to “check arbitrary and capricious
exercise of that power through a review of death sentences.” Id.
[62]
Id. at 961. See also Roberts (Stanislaus)
v. Louisiana, 428 U.S., 325, 333, 96 S.Ct. 3001, 49 L.Ed.2d 974
(1976). [63]
The State v. Makwanyane and
McHunu, Judgment, Case Nº CCT/3/94 (6 June 1995) (Constitutional
Court of the Republic of South Africa). [64]
Section 277 of the Criminal
Procedure Act Nº 51 provided: Sentence
of Death (1)
The sentence of death may be passed by a superior court only
and only in the case of a conviction for: (a)
murder; (b)
treason committed when the Republic is in a state of war; (c)
robbery or attempted robbery, if the court finds aggravating
circumstances to have been present; (d)
kidnapping; (e)
child-stealing; (f)
rape. (2)
The sentence of death shall be imposed (a)
after the presiding judge conjointly with the assessors (if
any), subject to the provisions of s. 145(4)(a), or, in the case of a
trial by a special superior court, that court, with due regard to any
evidence and argument on sentence in terms of section 274, has made a
finding on the presence or absence of any mitigating or aggravating
factors; and (b)
if the presiding judge or court, as the case may be, with due
regard to that finding, is satisfied that the sentence of death is the
proper sentence. [65]
Id.
pp. 32-36 (footnotes included). The Court went on to conclude that
additional factors such as discrimination and the “imperfection”
inherent in criminal trials may also lead to arbitrary results in the
imposition of the death penalty, and determined further that such
arbitrary results could not be appropriately remedied through strict
due process, as had been endeavored in the United States. Id. at 36-43. [66]
Criminal
Procedure Act Nº 51 of 1977,
section 322(2A) (as amended by section 13 of Act Nº 107 of 1990). [67]
Id.
section 316A(4)(a). [68]
S. v Nkwanyana and Others 1990 (4) SA 735 (A) at 743E-745A. [69]
S v. Masina and
Others 1990 (4) SA 709 (A) at 718G-H. [70]
S v. J 1989 (1)
SA 669 (A) at 682G. “Generally speaking, however, retribution has
tended to yield ground to the aspects of correction and prevention,
and it is deterrence (including prevention) which has been described
as the ‘essential’, ‘all important’, ‘paramount’, and
‘universally admitted’ object of punishment.” Id. at 682I-J
(cited with approval in S v P 1991 (1) SA 517 (A) at 523G-H. CF. R. v
Swanepoel 1945 AD 444 at 453-455. [71]
Per Holmes JA in
S v Letsolo 1970 (3) SA 476 (A) at 477B (cited with approval by
Nicholas AJA in S v Dlamini 1992 (1) SA 18 (A) at 31I-32A in the
context of the approach to sentencing under section 322(2A)(b) of the
Criminal Procedure Act Nº 51 of 1977). [72]
S v Senonohi
1990 (4) SA 727 (A) at 734F-G; S v Nkwanyana, supra at 749A-D. [73]
Id.
at 35-36. [74]
Bachan
Singh v. State of Punjab,
(1980) 2 S.C.C. 475. [75]
Id. at 509-510. [76]
Id. at 516. [77]
Id.
at 515. [78]
Id. at 534. [79]
R.
v. Cunningham
[1982] A.C. 566. [80]
The Jamaica (Constitution) Order in Council 1962, Second Schedule,
Sections 90, 91. |