Explaining the law on the death sentence as it presently stands in Trinidad and Tobago

Abstract

With the rise in the number of murders in the country, there have been subsequent calls not only by the present government but also by members of the public to reinstate the death penalty as a means of combating the escalating crime situation and thus punishing offenders for their actions. This paper seeks to firstly highlight the current state of the law regarding the death penalty. In addition, the strategic barriers that continue to exist which subsequently prevent the state from carrying out the death sentence will also be examined. Such barriers, though they may prove to be a challenge for any state that intends on retaining the death penalty, can however be removed and reformations can be made possible in order to make the death sentence effective.

Introduction

The Death Penalty is one of the most talked about debates in Trinidad and Tobago. It has for years been considered the mandatory sentence for the commission of murder and treason though prosecutions for treason are virtually unknown to this country (except in the case of the 1990 attempted coup d’état). This form of sentence was adopted as part of the Trinidad and Tobago constitution, under the English Common Law system. In fact according to the Offences Against the Person Act (Chap 11:08):

Any person who commits any act or acts which if done or committed in England would amount to or constitute the offence of murder, manslaughter, buggery or rape, shall be deemed guilty of murder, manslaughter, buggery or rape, as the case may be; and every offence mentioned in this Act which would be an indictable offence according to the law of England shall be and is deemed to be an indictable offence in Trinidad and Tobago.

In light of this, persons found guilty of capital offences such as murder and treason were sentenced to death by hanging since this was also the law for England. Despite gaining Independence from England in 1962, this form of punishment has remained in the law books of Trinidad and Tobago (despite England abolishing the death penalty in practice in 1969 and removing it entirely from its law books in 1998 (Death Penalty Information Centre, 2012).

Crime in Trinidad and Tobago

Professor Deosaran (1999) in one of his many studies stated that for the period 1987 to 1996, the average detection and prosecution rate for serious crimes was 27% while for 1997 and 1998, the average detection/prosecution rate for the same crimes reported was 32%. In addition, Deosaran reported that overall, less than one in three reported serious crimes such as homicide reach the detection/prosecution stage. The author further stated that based on the number of serious crimes reported, the average conviction rate was 5.6% for the period 1987 to 1996, while the conviction rate for serious crimes prosecuted stood at 20.8%. These relatively low prosecution and conviction rate can be alluded to the current incapacity of the criminal justice system to effectively deal with the alarming increase in crime.

In addition, police records indicate that almost all suspicious deaths in Trinidad and Tobago are recorded as murder with the murder rate according to Hood and Seemungal (2006) being overly exaggerated while the manslaughter rate is substantially underestimated. In addition these records also show that only about four percent (4%) of suspicious deaths for the period 1998 to 2002 were recorded as manslaughter. Statistics for the Trinidad and Tobago Police Service in 2011 has recorded the number of murder toll at 472 deaths which implies a rate of 35.2 per 100,000 population (UNDOC, 2012).

Hood and Seemungal (2006) in their study for the European Commission on the Death Penalty, identified the main categories of murders in Trinidad and Tobago. These include gang related murders, drug related murders, robbery or other named crime, domestic violence and altercation. The authors also identified that a substantial number of murders are deemed ‘unknown’ or ‘unclassified’. This is particularly true for cases where the murder was committed at a different location from where the body was found.

The main method of killing in Trinidad and Tobago is the gun (CSO, 2011) and at present there is a thriving firearms business in Trinidad and Tobago with the increased inflow in the number of illegal firearms (Figueira, 2002) as well as homemade firearms in the country which is inevitably reflected in the police statistics in cases where weapons are retrieved. Second to the firearm related homicides is the use of blades, knives and other sharp weapons. This is subsequently followed by the use of blunt instruments and instruments used for strangulation.

One in ten cases that were solved by the Trinidad and Tobago Police resulted in conviction of the offender. At this point it is important to note that ‘solved’ cases are when an offender has been charged for the murder. For the period 1998-2002 only seventeen percent (17%) of the six hundred and thirty-three (633) murders recorded, the offenders were convicted (Hood and Seemungal, 2006).

The much recent debate and pressure by the public to implement the mandatory death penalty has been heightened by the herculean increase in the number of murders within recent years as well as the low detection and conviction rates within Trinidad and Tobago (Hood and Seemungal, 2006). Following the same line, a number of committees were initiated to determine the viability of the death penalty in reducing crime. Such commissions included the Prescott Commission and Abdullah Commission which both concluded that the mandatory death penalty should be retained however given certain circumstances.

Current State of the Death Penalty in Trinidad and Tobago

As mentioned previously, the death sentence is usually given to persons convicted of murder or treason and once the death sentence has been read to that convict, then he/ she is hanged by the State. In fact under Section 4 of the Offences Against the Person Act Chap 11:08,

“Every person convicted of murder shall suffer death.”

The last death sentences carried out by the state was in the year 1999 when a renowned drug kingpin (Nankissoon Boodram) and his eight member gang as well as another convicted murderer (Anthony Briggs) were hanged for the murders. By the end of 2010 at least forty (40) prisoners were on death row (Amnesty International, 2011).

With the rise in the number of murders in the country, there have been subsequent calls not only by the present government but also by members of the public to reinstate the death penalty as a means of combating the escalating crime situation and thus punishing offenders for their actions. In 2011, the present government submitted a Bill to parliament in a bid to reform the constitution as it relates to the implementation of the death penalty. The Bill was however rejected since it would have facilitated a number of human rights violations according to international law.

Subsequent to this, the government has further taken the initiative to amend the constitution as it relates to capital offences in 2012. It is anticipated that this amendment will allow for the reimplementation of the mandatory death penalty particularly for the case of murder. The Constitution (Amendment) (Capital Offences) Bill is currently being reviewed in parliament by the government and the opposition since it requires a three-fourths (3/4) majority vote from the House of Representatives and a two-thirds (2/3) majority vote from the Senate in order to pass this bill.

Amendments to the bill by the ruling government seek to address inconsistencies present within the criminal justice system that are inconsistent with the constitution. Such inconsistencies include delays in the criminal justice process, unlawful detainment of death row inmates, multiple death sentence readings, finalizing the categories of murder among other inconsistencies.

Barriers to the Execution of the Death Sentence

Inconsistencies with the Constitution

Though, the death penalty in Trinidad and Tobago has been abolished de facto, it still remains the mandatory sentence for the commission of murder, and, as the death penalty currently stands there are some noteworthy inconsistencies with respect to the constitutional rights of individuals/offenders. Firstly, the death penalty serves as a mandatory sentence for the commission of murder. Subsequently, all persons convicted of murder irrespective of the circumstances pertaining to the crime, will be given the death penalty. In addition, under the Criminal Law (Amendment) Act of 1997, persons convicted of a ‘felony murder’ (or constructive malice) can also be given the death sentence. That is, once there is the commission of an arrestable offence involving violence that has resulted in the death of someone (despite there being no intent to kill), offenders are liable to be convicted of murder. This was the case of Khan vs The State in the Privy Council ruling where the appellant was convicted of felony murder in a robbery that resulted in the death of the victim.

Subsequently, the mandatory death sentence currently does not take into account the different degrees of murder and the law was challenged in Roodal Versus The State (of Trinidad and Tobago) where the Privy Council ruled that the death penalty was discretionary not mandatory. This ruling lead to a new system of sentencing convicted murderers and the possibility of developing different sentences for varying degrees of murders (Kokaram, 2004). In comparison to the Federal law of the United States murder is classified based on premeditation and intent. As a result, there are three varying classifications whereby the act of murder is specifically defined by criminal law- first degree murder, second degree murder and third degree murder (manslaughter). Each charge possesses unique characteristics and a subsequent punishment. First degree murder involves premeditated intent to kill while second degree murder includes a murderous action with intent however without prior planning. Third degree murder or manslaughter however involves murderous actions without intent (US Federal Law, 2012).

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