A Life and Death Compromise: The A Life and Death Compromise: The Mandatory Death Penalty Mandatory Death Penalty

in the Caribbean Court of Justicein the Caribbean Court of Justice

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

byby

Jane E. CrossJane E. CrossAssociate Professor of Law andAssociate Professor of Law andDirector of Caribbean Law Programs,Director of Caribbean Law Programs,Nova Southeastern UniversityNova Southeastern UniversityShepard Broad Law CenterShepard Broad Law Center

Attorney General of Barbados v. Attorney General of Barbados v. JosephJoseph • Article will examine a Caribbean Court of Article will examine a Caribbean Court of

Justice (CCJ) decision on the Mandatory Justice (CCJ) decision on the Mandatory Death PenaltyDeath Penalty

• Case study of Boyce and Joseph illustrates Case study of Boyce and Joseph illustrates the dynamics of the mandatory death penalty the dynamics of the mandatory death penalty in the Caribbean and the jurisprudential in the Caribbean and the jurisprudential trends in the region in three ways:trends in the region in three ways:• Background of Mandatory Death PenaltyBackground of Mandatory Death Penalty• Constitutional IssuesConstitutional Issues• Human Rights compromises in Caribbean lawHuman Rights compromises in Caribbean law

Attorney General of Barbados v. Attorney General of Barbados v. JosephJoseph

Two challenges: The constitutionality ofTwo challenges: The constitutionality of

• The mandatory death penalty The mandatory death penalty

• Barbados Privy Council (BPC) actions Barbados Privy Council (BPC) actions after a petition to the Inter-American after a petition to the Inter-American Commission on Human Rights Commission on Human Rights (IACHR).(IACHR).

Background of Death Penalty Background of Death Penalty in Commonwealthin Commonwealth

• Barbados like almost all Commonwealth Barbados like almost all Commonwealth Caribbean nations has a mandatory Caribbean nations has a mandatory death penalty. death penalty.

• Conviction for murder = death sentence.Conviction for murder = death sentence.

• Death sentence can be commuted to Death sentence can be commuted to life sentence by Governor-General upon life sentence by Governor-General upon recommendations of the Barbados Privy recommendations of the Barbados Privy Council.Council.

Death Penalty HistoryDeath Penalty History

• The mandatory death penalty has existed since The mandatory death penalty has existed since colonization because it was retained at independence colonization because it was retained at independence through a “saving clause” in the constitution.through a “saving clause” in the constitution.

• Savings clause: sanctions laws existing at time of Savings clause: sanctions laws existing at time of independence even if the law contravenes the independence even if the law contravenes the constitutionconstitution

• Barbados “saved” death penalty after independence Barbados “saved” death penalty after independence in 1966 even though the UK had abolished the death in 1966 even though the UK had abolished the death penalty in 1965 because Barbados had not penalty in 1965 because Barbados had not incorporated that abolition into its laws. incorporated that abolition into its laws.

International Obligations of International Obligations of BarbadosBarbados

• OAS (Organization of American States) OAS (Organization of American States) member since 1967 member since 1967

• Party to OAS Charter and later the Party to OAS Charter and later the American Convention on Human Rights American Convention on Human Rights (ACHR) (since 1978)(ACHR) (since 1978)

• Acceded to the International Covenant Acceded to the International Covenant on Civil and Political Rights (ICCPR) in on Civil and Political Rights (ICCPR) in 1973. 1973.

Commonwealth Caribbean Commonwealth Caribbean ParadoxParadoxAs noted by Justice Nelson, Commonwealth Caribbean As noted by Justice Nelson, Commonwealth Caribbean

Courts face a paradox in mandatory death penalty Courts face a paradox in mandatory death penalty cases:cases:

1.1. Judge must sentence convicted murderer to death.Judge must sentence convicted murderer to death.

2.2. Constitution mandates a clemency hearing before Constitution mandates a clemency hearing before an execution.an execution.

3.3. Executives have entered into treaties that permit Executives have entered into treaties that permit challenges in international human rights bodies to challenges in international human rights bodies to death sentence after an exhaustion of domestic death sentence after an exhaustion of domestic appeals.appeals.

Basic ThesisBasic Thesis

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

1.1. While the Caribbean seeks to observe human While the Caribbean seeks to observe human rights, it remains anchored to the past.rights, it remains anchored to the past.

2.2. As long as the mandatory death penalty is As long as the mandatory death penalty is constitutional, post-conviction procedure constitutional, post-conviction procedure remains the principal human rights safeguard. remains the principal human rights safeguard.

Procedural History of Joseph -Procedural History of Joseph -Boyce CaseBoyce Case

Joseph-Boyce case has gone through the Joseph-Boyce case has gone through the Barbados appellate process twice. Barbados appellate process twice.

• Judicial Committee of the Privy Council Judicial Committee of the Privy Council (2004)(2004)

• Caribbean Court of Justice (2006)Caribbean Court of Justice (2006)

Timetable of Joseph - Boyce Timetable of Joseph - Boyce Case (Phase I)Case (Phase I)• April 10, 1999: Marquelle Hippolyte murdered by April 10, 1999: Marquelle Hippolyte murdered by

Jeffrey Joseph and Lennox Ricardo Boyce and two Jeffrey Joseph and Lennox Ricardo Boyce and two others.others.

• February 2, 2001: Joseph and Boyce were found February 2, 2001: Joseph and Boyce were found guilty of murder and mandatory sentence of death by guilty of murder and mandatory sentence of death by hanging was imposed on both.hanging was imposed on both.

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

• June 24, 2002: The Barbados Privy Council (“BPC”) June 24, 2002: The Barbados Privy Council (“BPC”) met and advised against commutation of the death met and advised against commutation of the death sentences.sentences.

Timetable of Joseph - Boyce Timetable of Joseph - Boyce Case (Phase I cont’d)Case (Phase I cont’d)• June 26, 2002: Death Warrants were read to the June 26, 2002: Death Warrants were read to the

men. An order was obtained from the High Court of men. An order was obtained from the High Court of Barbados staying the execution pending an appeal to Barbados staying the execution pending an appeal to the Judicial Committee of the Privy Council (“JCPC”).the Judicial Committee of the Privy Council (“JCPC”).

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

Timetable of Joseph - Boyce Timetable of Joseph - Boyce Case (Phase II)Case (Phase II)• September 3, 2004: Joseph and Boyce filed September 3, 2004: Joseph and Boyce filed

application before the Inter-American application before the Inter-American Commission on Human Rights (the Commission on Human Rights (the “Commission”) for a declaration that of a “Commission”) for a declaration that of a violation of their rights under the American violation of their rights under the American Convention on Human Rights (“ACHR”).Convention on Human Rights (“ACHR”).

Timetable of Joseph - Boyce Timetable of Joseph - Boyce Case (Phase II cont’d)Case (Phase II cont’d)• September 13, 2004: BPC meet to September 13, 2004: BPC meet to

consider ramifications of JCPC decision consider ramifications of JCPC decision and advised the Governor-General that and advised the Governor-General that the death sentences should be carried the death sentences should be carried out.out.

Timetable of Joseph - Boyce Timetable of Joseph - Boyce Case (Phase II cont’d)Case (Phase II cont’d)

• September 15, 2004: Death warrants September 15, 2004: Death warrants were read to Joseph and Boyce for an were read to Joseph and Boyce for an execution scheduled on September 21, execution scheduled on September 21, 2004.2004.

• September 16, 2004: Motion filed September 16, 2004: Motion filed before High Court seeking commutation before High Court seeking commutation of death sentence.of death sentence.

Timetable of Joseph - Boyce Timetable of Joseph - Boyce Case (Phase II cont’d)Case (Phase II cont’d)• September 17, 2004: The Inter-American Court September 17, 2004: The Inter-American Court

issued provisional measures requiring Barbados issued provisional measures requiring Barbados to preserve the lives of the two men pending the to preserve the lives of the two men pending the outcome of their petition to the Commission.outcome of their petition to the Commission.

• December 22, 2004: The High Court dismissed December 22, 2004: The High Court dismissed the motion.the motion.

• The case then went to the Barbados Court of The case then went to the Barbados Court of Appeals which ordered the death sentences Appeals which ordered the death sentences commuted and substituted with life commuted and substituted with life imprisonment.imprisonment.

Timetable of Joseph - Boyce Timetable of Joseph - Boyce Case (Phase II in CCJ)Case (Phase II in CCJ)

• June 20-21, 2006: This case was heard June 20-21, 2006: This case was heard before the Caribbean Court of Justice.before the Caribbean Court of Justice.

• November 8, 2006: The Caribbean November 8, 2006: The Caribbean Court of Justice delivered its opinion Court of Justice delivered its opinion which ultimately dismissed the which ultimately dismissed the Government’s Appeal of the Government’s Appeal of the commutation of the death sentences.commutation of the death sentences.

CCJ CaseCCJ Case

The two issues before the CCJ were The two issues before the CCJ were 1.1.whether the BPC’s decision was whether the BPC’s decision was

reviewable under the Barbados reviewable under the Barbados Constitution and Constitution and

2.2.whether the BPC’s failure to await the whether the BPC’s failure to await the outcome of the IACHR petition violated outcome of the IACHR petition violated Joseph’s and Boyce’s right to protection Joseph’s and Boyce’s right to protection under the law. under the law.

Pratt and Morgan Pratt and Morgan CaveatCaveat

Regardless of the resolution of these issues the Regardless of the resolution of these issues the CCJ agreed that the 1994 JCPC precedent of CCJ agreed that the 1994 JCPC precedent of Pratt and Morgan Pratt and Morgan would prohibit the would prohibit the execution of Joseph and Boyce:execution of Joseph and Boyce:

• Prohibition of execution after five years had Prohibition of execution after five years had elapsed.elapsed.

• In this case five years had elapsed on In this case five years had elapsed on February 2, 2006.February 2, 2006.

CCJ HoldingsCCJ Holdings

The CCJ held thatThe CCJ held that

1.1. the BPC’s exercise of the prerogative the BPC’s exercise of the prerogative of mercy is reviewable.of mercy is reviewable.

2.2. the failure of the BPC to await the the failure of the BPC to await the outcome of the petition to the IACHR outcome of the petition to the IACHR was a contravention of the right to the was a contravention of the right to the protection of the law.protection of the law.

Key Points of Justice De la Bastide and Key Points of Justice De la Bastide and Saunders Joint OpinionSaunders Joint Opinion

1.1. ““The power to confirm or commute a death sentence, The power to confirm or commute a death sentence, particularly a mandatory one, is far too important to permit particularly a mandatory one, is far too important to permit those in whom it is vested freedom to exercise that power those in whom it is vested freedom to exercise that power without the possibility of judicial review even if they commit without the possibility of judicial review even if they commit breaches of the basic rules of procedural fairness.”breaches of the basic rules of procedural fairness.”

2.2. ““[T]he respondents had a legitimate expectation that they [T]he respondents had a legitimate expectation that they would be allowed a reasonable time within which to complete would be allowed a reasonable time within which to complete the process which they initiated by petitioning to the Inter-the process which they initiated by petitioning to the Inter-American Commission on Human Rights and make the report American Commission on Human Rights and make the report of that body available to the BPC in support of their case for of that body available to the BPC in support of their case for commutation. For the state to attempt to execute the commutation. For the state to attempt to execute the respondents without giving them that opportunity was a denial respondents without giving them that opportunity was a denial of their right to the protection of law for which the court had an of their right to the protection of law for which the court had an inherent remedy.”inherent remedy.”

Use of Procedural Rules to Limit Use of Procedural Rules to Limit Death Penalty UseDeath Penalty Use• Explore the rationale for the CCJ’s decision, Explore the rationale for the CCJ’s decision,

especially the distinction between procedure especially the distinction between procedure and substance; and substance;

• Examine whether or not the Examine whether or not the JosephJoseph case has case has laid the groundwork for the ultimate abolition laid the groundwork for the ultimate abolition of the mandatory death penalty in all of the mandatory death penalty in all Commonwealth Caribbean nations; andCommonwealth Caribbean nations; and

• Discuss whether this compromise to preserve Discuss whether this compromise to preserve the mandatory death penalty provides the mandatory death penalty provides adequate human rights protectionsadequate human rights protections..