Title of Paper: Review of Death Penalty in Jamaica

Course Code: GOVT3010

Course Title: Crime and Punishment

 The death penalty is a controversial and heavily debated issue in Jamaica and many

other jurisdictions. In Jamaica, the death penalty is still legal to be utilized for the most

serious crimes such as murder, treason, and piracy. Jamaica, however, has not carried out any

execution since 1988. Nonetheless, there exist opposing views on the application of capital

punishment. There is the view that the death penalty is an important deterrent for crimes and

provides justice for victims and families. This is especially important in the context of

increased rates of violent crimes in Jamaica yearly. There is, however, the abolitionist view

globally and domestically that capital punishment is inhumane, violates international human

rights standards, and is too aligned with a retributivist perspective. In the context of

CARICOM member states Trinidad and Tobago and Barbados still make use of the death

penalty while it has been abolished in St. Lucia and Grenada.

As it relates to the legislative framework surrounding the death penalty, there are

international instruments such as the International Covenant on Civil and Political Rights

(ICCPR) and its Second Optional Protocol, the Universal Declaration on Human Rights

(UDHR), and The Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment that speaks to capital punishment. Domestically, the legal

framework regarding capital punishment takes in the Offences Against the Person Act and

the Charter of Fundamental Rights and Freedoms (Constitutional Amendment 2011). The use

or abolition of the death penalty is a contentious issue in the region and Jamaica specifically.

This essay will serve to further discuss the legal framework around the death penalty, the

pros, and cons of its application, and make recommendations in the Jamaican context.

The death penalty is incompatible with international legal instruments such as the

Universal Declaration of Human Rights which in Article 3 speaks to the right to life which is

one of the core rights included in seventy-seven percent of the world’s constitutions

(OHCHR, 2018). Article 6 of the ICCPR, reiterates human beings’ inherent right to life but
permits the use of the death penalty in limited circumstances. It however notes that “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” (ICCPR, 1966). However, neither the UDHR nor the

ICCPR expressly nor implicitly prohibit the death penalty. The UN General Assembly

approved the Second Optional Protocol to the ICCPR, which seeks to abolish the death

sentence, in 1989. It calls for the complete elimination of the death penalty but grants state

parties the right to use it sparingly during times of war. Jamaica however is not a party to the

ICCPR’s Second Optional Protocol. Only the most serious offenses are eligible for the death

penalty, according to the Inter-American Convention on Human Rights, which Jamaica has

ratified. It further stipulates that the death penalty should not be applied to crimes to which it

is not currently applicable (OAS, 2020). It is evident in the international legal framework that

the goal is the protection of life and human dignity and death as a form of punishment should

only apply to the most serious offences. Overall, however, the relevant international

instruments allow each State to carry out executions in appropriate circumstances.

In Jamaican legislation, the death penalty is legal and primarily governed by the

Offences against the Person Act (OAPA) of 1864, which was last amended in 2014. The

OAPA in Section 2 (1) (a) to (f) outlines capital offences which are those acts punishable by

death. These acts include aggravated murder offenses: the murder of security forces or

judicial officers, jurors, or civil servants; murder for hire; double murders or repeat murders;

or murder in the furtherance of a serious crime. Jamaica, a Member State of the Organisation

of American States, has adopted the Inter-American Convention on Human Rights and is thus

prohibited from adding new capital offences. Section 3 (1) (a) of the OAPA further states that

“every person convicted of murder falling within Section 2 (1) (a) to (f) shall be sentenced to

death or imprisonment for life (OAPA, 1864). In addition, the Charter of Fundamental Rights

and Freedoms (Constitutional Amendment) Act, 2011 voided the Privy Council’s ruling in
Pratt & Morgan v. Attorney General of Jamaica. Article 13 (8) (a) (b) of the Charter of

Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011 states that the

legality of execution shall not be challenged because of the time one is held on death row or

the physical conditions and arrangements they are held in awaiting death. The death penalty

in Jamaica is legal though limited to certain offences.

In Jamaica, the main argument for the retention of capital punishment is the alarming

murder rate. The general perspective is that capital punishment can be an effective crime

deterrent as it can prevent repeated criminality and the continuation of similarly heinous

crimes. This view was further exemplified by a 2008 parliamentary vote to retain the death

penalty (Vasciannie, 2017). Additionally, capital punishment is considered an act of justice

for the victims and their families and a just punishment for those who commit reprehensible

crimes. This view is aligned with the retributivist approach espoused also in the Bible, with

“eye for an eye” sentiments. Ultimately, Jamaican society needs measures that will send a

strong message to criminals and bolster crime-fighting strategies.

The arguments against the death penalty are mainly rooted in morality and concerns

for human rights. Internationally the death penalty is considered inhuman and contrary to

modern standards of human dignity by bodies such as the United Nations Human Rights

Council, Amnesty International, and the Organization of American States. In addition, the

possibility of mistakes is a major concern for those against capital punishment. This is

especially important in the Jamaican context where there is little assurance that the justice

system will always sentence the right persons to death. As noted by Vasciannie, this mistake

is irreversible and is evident in American cases where DNA evidence proved the innocence

of several persons on death row (Vasciannie, 2004). Furthermore, there is no proof that the

death penalty is any more effective at reducing crime than life in prison, and this argument
has been repeatedly debunked (Amnesty International, 2022). The cons of the death penalty

far outweigh the cons signifying a lack of need for this form of punishment.

It can be concluded that the death penalty is legal in Jamaica though execution has not

been carried out in decades. The international legal framework to which Jamaica is a party

allows for individual states to carry out the death penalty under limited circumstances and

according to outlined measures. It is recommended that where Jamaica chooses to apply the

death penalty in the future, the proceedings are not in contravention of the legal international

instruments. Jamaica should also consider signing and ratifying the Second Optional Protocol

to the ICCPR and removing the death penalty from the books. This is especially important in

the context of the growing number of states that are abolishing capital punishment and the

global stance on its barbaric nature. Jamaica must bolster the alternative forms of punishment

currently being used with a focus on increasing the effectiveness of the criminal justice

system. This would see better crime-fighting strategies in terms of police work, swift and

certain punishment of offenders as well as strengthened rehabilitative efforts to guard against

recidivism. This would provide the deterrent effect on crime that society requires.
References

The Charter of Fundamental Rights and Freedom (Constitutional Amendment) Act, (2011)

Section

The IACHR Stresses Its Call for the Abolition of the Death Penalty in the Americas on the

World Day Against the Death Penalty. (2020). OAS. Retrieved April 4, 2023.

The death penalty is the ultimate cruel, inhuman, and degrading punishment. Amnesty

International. (2022, December 13). Retrieved April 4, 2023, from

https://www.amnesty.org/en/what-we-do/death-penalty/#:~:text=In%20some

%20countries%20death%20sentences,of%20the%20defendant%20before

%20sentencing.

The Offences Against the Person Act, Jamaica (2014) Section 3.

United Nations. (2018). Death penalty: The international framework. OHCHR. Retrieved

April 4, 2023, from https://www.ohchr.org/en/topic/death-penalty/international-

framework

United Nations (General Assembly). (1966). International Covenant on Civil and Political

Rights.

Vasciannie, S. (2004). Us and Them: International Law in a Time of Trial. The UWI Press.

Vasciannie, S. (2017, February 9). The death penalty and its impediments. Jamaica Observer.

Retrieved April 4, 2023, from https://www.jamaicaobserver.com/columns/the-death-

penalty-and-its-impediments/