Barbados Death Penalty

8/2/2019 Barbados Death Penalty

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A Life and Death Compromise: TheMandatory Death Penalty

in the Caribbean Court of Justice

A Proposed Work in Progress Presentation forNORTHEAST PEOPLE OF COLOR SCHOLARSHIP CONFERENCE

by

Jane E. CrossAssociate Professor of Law andDirector of Caribbean Law Programs,Nova Southeastern UniversityShepard Broad Law Center


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Attorney General of Barbados v.

Joseph

Article will examine a Caribbean Court ofJustice (CCJ) decision on the MandatoryDeath Penalty

Case study of Boyce and Joseph illustratesthe dynamics of the mandatory death penaltyin the Caribbean and the jurisprudentialtrends in the region in three ways:

Background of Mandatory Death Penalty Constitutional Issues

Human Rights compromises in Caribbean law


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Attorney General of Barbados v.

Joseph

Two challenges: The constitutionality of

The mandatory death penalty

Barbados Privy Council (BPC) actionsafter a petition to the Inter-AmericanCommission on Human Rights (IACHR).


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Background of Death Penalty

in Commonwealth Barbados like almost all Commonwealth

Caribbean nations has a mandatory

death penalty. Conviction for murder = death sentence.

Death sentence can be commuted to

life sentence by Governor-General uponrecommendations of the Barbados PrivyCouncil.


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Death Penalty History

The mandatory death penalty has existed sincecolonization because it was retained at independencethrough a saving clause in the constitution.

Savings clause: sanctions laws existing at time ofindependence even if the law contravenes theconstitution

Barbados saved death penalty after independencein 1966 even though the UK had abolished the death

penalty in 1965 because Barbados had notincorporated that abolition into its laws.


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International Obligations of

Barbados

OAS (Organization of American States)member since 1967

Party to OAS Charter and later theAmerican Convention on Human Rights(ACHR) (since 1978)

Acceded to the International Covenanton Civil and Political Rights (ICCPR) in1973.


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Commonwealth Caribbean

ParadoxAs noted by Justice Nelson, Commonwealth Caribbean

Courts face a paradox in mandatory death penaltycases:

1. Judge must sentence convicted murderer to death.2. Constitution mandates a clemency hearing before

an execution.

3. Executives have entered into treaties that permit

challenges in international human rights bodies todeath sentence after an exhaustion of domesticappeals.


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Basic Thesis

In resolving this paradox, the CCJ is once againengaging in a human rights compromise.

1.While the Caribbean seeks to observe humanrights, it remains anchored to the past.

2.As long as the mandatory death penalty isconstitutional, post-conviction procedure

remains the principal human rights safeguard.


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Procedural History of Joseph -

Boyce CaseJoseph-Boyce case has gone through the

Barbados appellate process twice.

Judicial Committee of the Privy Council(2004)

Caribbean Court of Justice (2006)


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Timetable of Joseph - Boyce

Case (Phase I) April 10, 1999: Marquelle Hippolyte murdered byJeffrey Joseph and Lennox Ricardo Boyce and twoothers.

February 2, 2001: Joseph and Boyce were foundguilty of murder and mandatory sentence of death byhanging was imposed on both.

March 27, 2002: Appeal to the Court of Appeal ofBarbados was dismissed.

June 24, 2002: The Barbados Privy Council (BPC)met and advised against commutation of the deathsentences.


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Case (Phase I contd) June 26, 2002: Death Warrants were read to themen. An order was obtained from the High Court ofBarbados staying the execution pending an appeal tothe Judicial Committee of the Privy Council (JCPC).

July 7, 2004: JCPC upheld (by a five to four majority)the mandatory death penalty in Barbados and theappeals of Joseph and Boyce were dismissed.


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Case (Phase II) September 3, 2004: Joseph and Boyce filed

application before the Inter-AmericanCommission on Human Rights (theCommission) for a declaration that of a

violation of their rights under the AmericanConvention on Human Rights (ACHR).


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Case (Phase II contd) September 13, 2004: BPC meet to

consider ramifications of JCPC decision

and advised the Governor-General thatthe death sentences should be carriedout.


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Timetable of Joseph - BoyceCase (Phase II contd)

September 15, 2004: Death warrants

were read to Joseph and Boyce for an

execution scheduled on September 21,2004.

September 16, 2004: Motion filed

before High Court seeking commutationof death sentence.


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Timetable of Joseph - BoyceCase (Phase II contd)

September 17, 2004: The Inter-American

Court issued provisional measures requiringBarbados to preserve the lives of the two men

pending the outcome of their petition to theCommission.

December 22, 2004: The High Courtdismissed the motion.

The case then went to the Barbados Court ofAppeals which ordered the death sentencescommuted and substituted with lifeimprisonment.


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Case (Phase II in CCJ) June 20-21, 2006: This case was heard

before the Caribbean Court of Justice.

November 8, 2006: The CaribbeanCourt of Justice delivered its opinionwhich ultimately dismissed the

Governments Appeal of thecommutation of the death sentences.


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CCJ Case

The two issues before the CCJ were

1. whether the BPCs decision was

reviewable under the BarbadosConstitution and

2. whether the BPCs failure to await theoutcome of the IACHR petition violated

Josephs and Boyces right toprotection under the law.


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Pratt and MorganCaveat

Regardless of the resolution of these issues theCCJ agreed that the 1994 JCPC precedent ofPratt and Morganwould prohibit the

execution of Joseph and Boyce:

Prohibition of execution after five years hadelapsed.

In this case five years had elapsed onFebruary 2, 2006.


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CCJ Holdings

The CCJ held that

1. the BPCs exercise of the prerogative

of mercy is reviewable.2. the failure of the BPC to await the

outcome of the petition to the IACHR

was a contravention of the right to theprotection of the law.


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Key Points of Justice De la Bastide andSaunders Joint Opinion

1. The power to confirm or commute a death sentence,particularly a mandatory one, is far too important to permitthose in whom it is vested freedom to exercise that powerwithout the possibility of judicial review even if they commit

breaches of the basic rules of procedural fairness.2. [T]he respondents had a legitimate expectation that they

would be allowed a reasonable time within which to completethe process which they initiated by petitioning to the Inter-American Commission on Human Rights and make the report

of that body available to the BPC in support of their case forcommutation. For the state to attempt to execute therespondents without giving them that opportunity was a denialof their right to the protection of law for which the court had aninherent remedy.


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Use of Procedural Rules to LimitDeath Penalty Use

Explore the rationale for the CCJs decision,especially the distinction between procedureand substance;

Examine whether or not the Joseph case haslaid the groundwork for the ultimate abolitionof the mandatory death penalty in allCommonwealth Caribbean nations; and

Discuss whether this compromise to preservethe mandatory death penalty providesadequate human rights protections.

Barbados Death Penalty

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