From now on, persons convicted of murder here will no longer receive an automatic death sentence.
In an historic ruling today, this country’s final court of appeal, the Trinidad-based Caribbean Court of Justice (CCJ), outlawed any future use of the mandatory death sentence, ruling that a section of the Offences Against the Person Act was unconstitutional because it provided for a mandatory sentence of death.
In a six-to-one majority decision – Jamaican-born Justice Winston Anderson disagreed – the regional court held that Section 11 of the Barbados Constitution, which gives the right to protection of the law, was enforceable.
It found that the mandatory death penalty breached that right as it deprived a court of the opportunity to exercise the “quintessential” judicial function of tailoring the punishment to fit the crime.
“The court by majority declares that Section 2 of the Offences Against the Person Act was inconsistent with Sections 11(C), 12(1), 15(1) and 18(1) of the Constitution of Barbados to the extent that it provides for mandatory sentencing of death,” outgoing CCJ President Sir Dennis Byron, who demits office on July 4, said.
The judgment was handed down during the death penalty appeals of Barbadian murder convicts Jabari Sensimania Nervais, who in February 2012 was found guilty of the 2006 murder of Jason Ricardo Burton; and Dwayne Omar Severin, who was found guilty of killing Virgil Barton on November 30, 2009.
Hearing of their cases was consolidated because both appeals challenged the murder convictions of each of the men and the constitutionality of the mandatory death sentence for murder in Barbados.
While the CCJ ruled that the mandatory death sentence was unconstitutional, it dismissed their appeals against their convictions and ordered that Nervais and Severin be expeditiously brought back before the local Supreme Court for resentencing.
The dissenting judge suggested that the appeals should be allowed, grounding his opinion on the basis that the judicial monopoly on the power to sentence, which is protected by the separation of powers principle, is consistent with “ensuring respect for, and adherence to the ongoing evolution in the protection of human rights”.
In response to the ruling, prominent attorney Ralph Thorne, QC, welcomed the court’s decision to strike down the mandatory death penalty, noting that it had treated every murder convict in the same way despite the mitigating circumstances of the case.
“I have never been comfortable with the mandatory sentence for murder since it treated different degrees of murder convictions similarly. In other words, offenders of different severity were being punished similarity,” Thorne told Barbados TODAY.
“This decision opens the door for Parliament to legislate degrees of murder that will stipulate different punishments for homicides of different severity. I am of the view that if the public believes that the death sentence should be retained for the highest degree of murder, the decision as to whether to impose the death penalty should be made by the jury of 12 persons who heard the case and not by the judge alone,” he added, arguing that the death sentence hearings be a separate and conducted after the verdict.
Noting that such a ruling was long in coming, local lead attorney for the two men, Andrew Pilgrim, QC, echoed Thorne’s sentiments.
“The law is now changed to say if you are convicted of murder, there is a sentencing phase in which the court will get to hear about . . . for example, you will get a pre-sentencing report on the individual, you would get to hear from counsel for the defence and counsel for the prosecution . . . what is the appropriate sentence in the unique circumstances of this offence and of this offender,” Pilgrim told Barbados TODAY, while suggesting that the ruling was a win-win situation of sorts for those who are for, as well as those who are against, the death penalty.
“Those people that are anxious to hang and get some blood, an eye for an eye and tooth for a tooth and so on . . . those people can still take some comfort that hanging is still on the books. But those people who feel that every situation is different, those people can also take some comfort,” the senior attorney stressed.
Pilgrim noted there had been a de factor moratorium on hanging in Barbados anyhow, with the last executive taking place in 1984.
Another well-known lawyer, Angella Mitchell-Gittens, said the sentencing judge would now have the option of imposing the sentences in the “usual” way of weighing the aggravating and mitigating factors.
“Any mandatory sentence is dangerous. The mandatory sentence can present us with serious dangers in that you run the risk of not having the punishment fitting the crime. And it is never a good thing to fetter the discretion of the judicial officer with mandatory sentencing,” said Michell-Gittens, who assisted Pilgrim in representing Severin.
“The sentencing judge should have the opportunity to weigh, having gone through the trial . . . having seen all the evidence . . . to weigh all of the factors and to impose the appropriate sentence. This decision was long in coming.
“It is long in coming because from the practical point of view, the death penalty has not been implemented in Barbados certainly not in the last 18 years that I have practiced here and way before that. So if it’s on the books and it is not serving any useful purpose,” the attorney said.
She also suggested that there may be a place for the death penalty as a sentence, but that its mandatory nature needed to have been removed.
“It cannot be a one-size-fits-all to justice,” she declared.