Capital Punishment in the Bahamas the Privy Council's Moratorium

CAPITAL PUNISHMENT

IN THE BAHAMAS

The Privy Council’s Moratorium

by

Dr. Michael D. Toote

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© 2013 by Dr. Michael D. Toote. All rights reserved.

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Published by AuthorHouse   06/18/2013

ISBN: 978-1-4567-9883-3 (sc)

ISBN: 978-1-4567-9884-0 (e)

Library of Congress Control Number: 2011915766

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Contents

Chapter One

Death Sentences and the Privy Council

Chapter Two

Culture, Politics and the Collective Will

Chapter Three

Deterrence and Capital Punishment

Chapter Four

Retention or Abolition: Religious Perspectives

Chapter Five

Death Penalty Cases and the Appeals Process from 1990-2000

Chapter Six

The Constitution and Human Rights Conventions

Chapter Seven

Diminishing the Death Penalty

Chapter Eight

Future Relations

Chapter Nine

Weighing the Religious Influence

Chapter Ten

Implications

ABBREVIATIONS

CCJ—Caribbean Court of Justice

IACHR—Inter American Commission on Human Rights

IACHR—Inter American Convention on Human Rights

JCPC—Judicial Committee of the Privy Council

OAS—Organization of American States

UN—United Nations

UNCHR—United Nations Commission on Human Rights

Acknowledgements

This book is the result of a desire to appreciate the dialectic between culture and religion, and politics and the rule of law in commonwealth countries, generally, with particular interest in the Bahamas and the Caribbean, relative to capital punishment.

Acknowledgements are divided into three groups:

• Those whose life work, associations and interactions have kept before me the stories of both the victims of crimes and those convicted and penalized for the crime of murder created the experience and information required to write this book;

• Those who read the manuscript and offered constructive insight resulting in timely corrections involving a subject of a somewhat ever changing and complex nature; and

• Those who honed my potential as a legal scholar and nudged me forward through crucibles of critical thinking in preparation for advocacy in courts of law and civil society.

In the first category, for their contributions to nation building, are Thaddeus A. Toote, my grand uncle and barrister-at-law, and William Thompson, churchman and historian, both deceased.

Also, the book emerges from a culture that is substantially oral in nature which, in far too many cases, is denied valuable insights into what makes it unique in its essence. Persons who can are hard pressed at times to write their stories down for the benefit of society. Ideas and stories that relate to jurisprudence and the rule of law need not be silenced with the demise of those who bear such treasures in earthen vessels. Thus, those who by their relentless enabling, urged upon me the need to undertake the research dealing with capital punishment in light of the Privy Council’s moratorium are acknowledged.

The undertaking would not have been completed had it not been for the unconditional support of my wife, Brenda and family who continue by their love and good will to ensure my professional and personal fulfillment. I am forever grateful to my professors at the City University, London, who taught me the art of legal research, namely Allison Wolfgarten and Margo Taylor. Emma Lanlehin helped in my quest to reconcile the relationship between the law as a task master and the need to be gracious in its practice to achieve the highest good for all who make up the mosaic tapestry we have come to know as society. A considerable debt of gratitude is owed Dr. Elliston Rahming, noted criminologist, former superintendent of Her Majesty’s Prisons and Bahamas Ambassador to Washington, for his endorsement.

Foreword

The issue of capital punishment—its finality, efficacy and applicability—has exercised the minds of legal scholars and ordinary citizens since time immemorial. In this groundbreaking book, Dr. Michael Toote, a dynamic leader of intellectual thought on matters related to justice and society, treats capital punishment with balance, insight and courage.

Cognizant of law as a dynamic, ever-evolving body of knowledge that connects and cements society in the face of burgeoning social change, this discussion on capital punishment and the posture of the Privy Council is both illuminating and thought provoking.

The decision by the Privy Council to remove the mandatory application of the death penalty as a response to murder convictions and to lay down a discretionary template instead, has become a source of great controversy and has challenged prevailing underpinnings of our culture, politics, religion and jurisprudence throughout the region. Mindful of how the law helps to shape and enhance our understanding of society, Toote manages to skillfully avoid the emotionalism often associated with this subject and takes the reader down a path of scholarly endeavor that leads to a greater understanding of justice in the Bahamas and the wider Caribbean.

Amazingly, he has done all of this with profound clarity and enviable simplicity. Quite clearly, Toote has succeeded topically and thematically at peeling off the layers of legal jargon and slicing off otherwise conflicting, confusing legal precedents in a way that makes this work not just readable, but enjoyable.

In this book, there is truly something for everyone. Indeed, I am impressed by Toote’s humane, sensitive approach to a subject that is ordinarily esoteric in content and emotive in intent. Anyone with an interest in contemporary sociology and justice issues-psychologist and cleric; lawyer and enforcer of the law; educator and student; laborer and homemaker, the youth and the elderly-all will find this primer on social thought a must-read as we move from feelings to analysis on critical social questions.

I highly recommend this book to anyone who seeks a proper orientation to criminal law, with particular reference to capital punishment. Take my word—you will find this book to be a most erudite and delightful read.

Elliston Rahming, Ph.D.

Bahamas Ambassador to The United States

Chapter One

Death Sentences and the Privy Council

‘The Devil and the Deep Blue Sea’

When one considers the historical summary of death sentence verdicts in The Bahamas in view of the Privy Council’s posture, it appears that the jurisdiction is caught, in the words of the old adage, ‘between the Devil and the deep blue sea’. Death sentences with reference to Capital Punishment verdicts issuing from homicides in the Bahamas have, for the most part from 1996, not been carried out. A majority of persons sentenced to death by hanging have had their sentences commuted to life in prison. The commutation of death sentences by the Judicial Committee of the Privy Council, also called the ‘JCPC’, has implications for the rule of law and the aims of justice, namely, certainty, clarity and efficacy of the judiciary.

Restrictions to the death penalty have come from rulings of the Privy Council who, rather than challenging the constitutionality of the death penalty, have ruled that it is not mandatory. ¹ This has raised the issue of the Caribbean Court of Justice, also referred to as the ‘CCJ’, replacing the Privy Council to ensure that domestic law is enforced. This said, alternatives to the death penalty, including abolition, have not been seriously considered as they ought.

The term ‘Capital punishment’, derives from the Latin capitalis which means ‘of the head.’² Beheading has probably been the most popular method of capital punishment over history.³ It has been regarded by many as in itself inhumane. Over one hundred countries in the world have abolished the death penalty, either de jure or de facto, exerting pressure on the Bahamas to conform to international human rights conventions.⁴

Worldwide, the rate of abolition has increased with an average of almost four states a year joining the abolitionist movement.⁵ On the other hand a minority of countries retain the death penalty with little or no indication of changing. Though it is not clear whether the United States position on the subject is a factor influencing states which retain the death penalty. Caribbean nations, including the Bahamas, continue to sentence murder convicts to death,⁶ a matter largely driven by escalating crime.⁷

Context

The preceding challenges have limited both the number of death sentences carried out and the powers available to the Bahamas in sending convicted murderers to the gallows. Other issues in the debate involve conflicts between extant jurisprudence and the Constitution, delay, policies of the Executive in capital punishment cases, cultural norms and religious biases, politics and demographics. The subject also touches on constitutional protections such as the entitlement to life, liberty, security of the person and the pursuit of happiness.

Assumptions

A substantial majority, around ninety percent (90%) of the Bahamian population are in favour of capital punishment, ⁸ perhaps for the same reasons that in some countries substantial minority favour the death penalty. ⁹ Staunchly entrenched support for capital punishment can partly be understood in attitudinal and cultural terms as part of a law and order syndrome bordering on the parochial. Much support for the death penalty in the Bahamas is found among three basic groups: those who think there should be harsher penalties for offending criminals, those who see the government as ineffective in handling increasing crime, and those who by their demographics are averagely or not at all educated and the devoutly religious. The study contends that endorsement for capital punishment can be better understood as an expressive act where these traits are found, suggesting that alternatives to capital punishment ought to be explored.

The stance of the Privy Council fosters a climate of uncertainty and diminished confidence among the judiciary and the executive branches. The status quo contributes, among