The following Document was first published in 1980 by the eminent Jamaican Jurist Delroy Chuck who has kindly given his permission for it to be published and used as a discussion document in the debate over Capital Punishment.

It is an ideal document for 6th form studies in schools as there are discussion topic and questions at the end of each chapter.
Click here to Download this 76 page document as a WORD file

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Should We Hang? 

DELROY H. CHUCK

Lecturer in Law & Criminology

University of the West Indies

 

 

If….we are to be sincere in our efforts to reduce violence, there is one type

of violence that we can with complete certainty eliminate.  That is the killing

of criminals by the state.  The question is,  will people learn to respect life

 better by threat or by example? And the uniform answer of history,

 comparative studies and experience is that man is an emulative animal.

 

- Professor Morris and Hawkins,

The Honest Politician’s Guide to Crime Control.

 

 

 

 

 

Bridgetown, Barbados

1980

 

 

 

 

Contents

 

            Preface…………………………………………………………………………

            Introduction  - R.M. Castagne……………………………………………….

1.         The Crime of Murder………………………………………………………….

2.         Where Death is Due to Neglect……………………………………………...

3.         The Plea of Insanity……………………………………………………………

4.         The defence of Provocation…………………………………………………..

5.         The Behaviour of the Reasonable Man……………………………………..

6.         The Use of Excessive Force………………………………………………….

7.         To Kill or To Die………………………………………………………………..

8.         Kill or Be Killed………………………………………………………………….

9.         The Desire to Kill……………………………………………………………….

10.       The Search for the Killer……………………………………………………….

11.       The Question of Capital Punishment ………………………………………..

12.       Is Hanging Really a Deterrent?……………………………………………….

13.       The Sanctity of Life …………………………………………………………….

14.       The Image of the Dangerous Killer ………………………………………….

15.       Punishing the Innocent ……………………………………………………….

16.       For Whom the Hangman Waits ……………………………………………..

17.       Last Days of the Condemned ………………………………………………..

18.       Hanged by the Neck …………………………………………………………..-

19.       Alternative to Execution ………………………………………………………

20.       Postscript ……………………………………………………………………….

 

 

 

 

 

 

Preface

While writing a series of articles for the Barbados Advocate News in 1979, 1 was encouraged and persuaded by several persons to put them into a booklet. This book is the first collection of 19 articles on the subject of Murder and Capital Punishment.

The articles have been modified and rewritten in some cases for this publication. Questions and further references have been added at the end of each article to encourage discussion and further study by groups in the society. I also hope that the book will find a place in the sixth form classes where students are preparing for the General Paper and where, I know, there is a general interest in crime and punishment.

The author would like to extend special thanks to Mr. Michael Castagne who read and helpfully commented on the articles. Mr. Castagne also kindly agreed to write the introduction.

My thanks are also due to the secretaries of the Faculty of Law, U.W.I., CADEC, and most importantly to the Research and Publication Funds Committee of the University of the West Indies which generously agreed to underwrite publication costs.

 

Delroy H. Chuck

July 1980

 

 


 

INTRODUCTION

Until very recently, we in the Caribbean have taken for granted that persons convicted

of murder should be put to death. It seems credible that, up until now, our societies have accepted without question the 'right' of the State to deliberately terminate human life as a penalty for certain crimes: incredible because the imposion of the death penalty is an extreme measure ‑ the ultimate penalty. One would expect that such an extreme penalty would only find a place in our legal system after careful consideration, and for compelling reasons.

 

Alas, this has not been the case. It does not take much to realise that the death penalty was inherited, along with the British system of justice, from our colonial forefathers. Not that the death penalty is unique to that system. Indeed, the vast majority of countries throughout the world retain the death penalty for certain offences. In many of these, death is imposed for many more crimes and much more frequently than in the Caribbean territories. It is probably true that the death penalty was inherited by most, if not all, legal systems; that it existed from the beginning of time; that it has been handed down from generation to generation, and that it has been taken for granted by mankind generally. But this alone is no justification for its continuance. For slavery, too, existed from time immemorial and was accepted as a fact of life up until relatively recent times. The death penalty cannot be justified purely on the basis that it exists, and has always existed.

 

The death penalty is literally a matter of life and death. All would agree that it is an extreme measure, in that it involves the deliberate taking of human life. Our respect for human life would demand, therefore, that we examine the reasons for its use, the purpose it is meant to serve, the existence or non‑existence of  adequate alternatives, the arguments against its use, and whether compelling reasons exist for its retention. In short, the time has come for us to ask ourselves the question, 'Should we hang?'

 

Ultimately, whether or not capital punishnient is abolished is a matter for the decision makers. The opinion of the 'man in the street' and of major groups in the societies ‑ trade unions, churches, youth groups, charitable organisations, professional groups, etc, - will inevitably influence , if in fact they do not determine, the final outcome.  Thus, the opinion of all wishing to express it, is important.

 

To hang or not to hang is, however, an issue charged with emotion. But because it is a life or death question, we have a moral obligation to ourselves, our societies and to the condemned not to allow our passion to be the sole determinant of our conclusion. We should, at least, temper our emotion with reason. We should at least consider the issues and evidence before we arrive at a final, unshakeable verdict.

 

Mr. Delroy Chuck's excellent articles allow the reader to do just that. They raise and discuss all aspects of the question in simple, non‑technical language. They challenge the reader with fundamental and searching questions placed at the end of each article. They invite the reader, by means of selected further readings, to examine and explore other publications with a view to formulating an opinion based on fact and reason, rather than on instinct and emotion. The region's leaders and decision makers, in particular, have an obligation to carefully consider the issues raised here before deciding 'aye' or 'nay' to capital punishment.

 

The issue has already come up for governmental consideration in several Caribbean jurisdictions. It has been referred to parliamentary committees in Barbados, Trinidad, Bermuda, and Jamaica. In Trinidad and Bermuda the committees have already made their recommendations. However, to date, only Jamaica and Bermuda have put the matter to an open vote in Parliament.

 

Capital punishment is also coming under critical reassessment at the international level. In April the Parliamentary Assembly of the Council of Europe voted 98 to 25 to recommend that the death penalty be abolished in all member states. The U.K. Parliament had earlier decided, by a 20% majority, not to reintroduce capital punishment for murder. At the present time, the issue is being hotly debated in the United States and Amnesty International, the human rights organisation, has called upon President Carter to establish a Presidential Commission to look into the question. The United Nations, itself, is to examine the issue at its Sixth Congress on the Prevention of Crime and Treatment of Offenders, due to take place in Caracas, Venezuela, from 25 August to 5 September. A resolution is expected to come before the General Assembly before the end of the year.


 

At the present time, separate campaigns seeking abolition of the the death penalty are being waged in Jamaica, Barbados, and Trinidad. Amnesty International has been in the vanguard of the Barbados campaign, through its local group, and has been very supportive of efforts in the other two islands. In Amnesty's view the death penalty constitutes a cruel, inhuman, and degrading punishment, is irreversible, capable of being inflicted on the innocent, has never been shown to have a special deterrent effect, and is a violation of right to life provisions found in the Universal Declaration of Human Rights and other international instruments. That is one view.  What is yours? But, before you answer ‑ read on ....

 

R. Michael Castagne, Chairrman, Amnesty International (Barbados)

Lecturer (Human Rights)

U.W.l. Cave Hill, Barbados

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I.   THE CRIME OF MURDER

From the beginning of time men have killed one another and they will continue to do so until the end of time. The biblical admonition, 'Thou shall not kill'., will remain a guiding light, but it can hardly be complied with. The underlying reasons why people kill one another are manifold and because of factors such as ungovernable passion, financial motives, criminal intent, etc. which frequently exercise a determining influence on the heart and mind of ordinary people, it can be stated without reservation that killings will continue to be a part of the affairs of men.

Not all killings are murder. Some killings are actually deemed necessary and salutary. The reasons fcr such killings are usually abstract and perhaps debatable. In tirnes of war, it is considered necessary to kill the enemy. It does not matter how hideous the methods that are used to accomplish. the deed. Whether we use atomic bombs to wipe out large segments of innocent people who may not even be involved in the fighting, or napalm bombs to ravage, scorch and maim, or neutron bombs, which kill people but leave buildings intact, we are still taking lives and justifying our actions. In peacetime, the hangman may be required to effect a judicial hanging. In America, murderers are put in an electric chair and roasted. In many other countries, criminals are exterminated by the firing squad. At any time, society permits a citizen to kill if he has to defend his life or that of any member of his family. The defence of self‑defence completely absolves where it succeeds. These examples show how another human life can be taken without the possibility of judicial punishment. The intention to kill exists, even though the desire to do so may not. Nonetheless, these are killings which are excusable and are not considered criminal.

 

The classical definition of murder is that given by Sir Edward Coke over three centuries ago. He says

”Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any

country of the realm any reasonable creature . . , under the king's peace, with malice afore‑thought,

either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound,

or hurt, etc. within a year and a day after the same.”


 

A person will therefore be found guilty of murder if he intends to kill and does so. He must have the mental state and he must be responsible for the act which caused death.

A person may intend to kill another and does everything to effect that intention but is still not responsible for the crime. Intending to kill him, Mary may give her husband John poison, but if dies of a heart attack before the poison takes effect she will not guilty of murder. If the poison was not responsible for John's heart attack then Mary's action does not contribute to his death. Similarly, if Tom fires a number of shots at Peter, who lies motionless on his bed, he will not be guilty of murder if Peter is already dead.  In both these cases, it is quite clear that Mary and Tom intend to kill but they cannot be found guilty of murder as the law would be punishing a man's criminal intention and not his deed.  The crime of murder is a combination of both.

On the other hand, if a man fires and kills what appears to be a monkey, but if it is in fact a human being, then he is not guilty of murder since he intends to kill a monkey, and not a human being. He clearly does not have the criminal intention to kill another human being. He has made a mistake. He will naturally have to show that his mistake was genuine and reasonable, and his evidence must be acceptable to the jury.

What is not known to the layman, however, is that it is possible be guilty of murder even though the accused did not intend to kill. A secondary mental state which makes the accused guilty of murder is the intention to cause grievous bodily harm. Grievous bodily harm is defined as really serious injury. An accused who stabs his victim during a fight may not intend to kill, but if the latter dies from the wound he will be guilty of murder. In a Trinidadian case, the accused, George Mitchell, a 63‑year‑old man, went to a nearby restaurant to collect bones for his dog. While in the restaurant, a customer objected to Mitchell's presence and function. Subsequently, a fight developed. Mitchell alleged that he was being strangled when he remembered that he had a penknife in his pocket. He fetched it and stabbed the accused several times. The reason for the stabbing, according to Mitchell, was to make a let go. The wounds were severe, however, and the customer died.  Mitchell was found guilty of murder.

There is no doubt that Mitchell, and many other offenders in similar circumstances, intend to cause grievous bodily  harm. They want to wound the victim for various reasons. In Mitchell's case it was to avoid his strangulation  but he was, like others, unable to prove self-defence.  In fact, the victims may have started the fight or quarrel. Most of these offenders will immediately admit to wounding, but they will forcefully argue that they did not intend to kill. The common law nevertheless incorporates the intent to cause grievous bodily harm as an element in the crime of murder.

Significantly, it is also possible to be found guilty of murder even though the convicted person neither had the intention to kill nor actually killed. An example will illustrate. Two gunmen, John and Michael, intend to rob a bank. They agree that no one should get hurt. Nonetheless, during the robbery a scuffle breaks out and John fatally shoots the guard and two customers. Michael, theoretically, is not an accomplice to murder. But, practically, in the court­room, it is almost impossible to prove and to convince any jury that he is not an accomplice. Why did he carry a gun if he did not intend to use it? Is it not possible that there might be circumstances in which he would shoot just as John did? ‑ and several similar questions which point to his conviction as an accomplice to murder. The author knows of several accomplices on deathrow in Jamaica who did not kill. They were charged and convicted as accomplices to murder. In some circumstances, it is likely that their conviction was due to the fact that they were seen in the company of killers!

 

QUESTIONS

1.         Should a person who is convicted of attempted murder, or as an accomplice to murder, be given the same punishment as one found guilty of murder?

 

2.         A man may be found guilty of murder even though he does not intend to kill. The law emphasises that  a) the intention to cause grievous bodily harm, b) killing during the commission of a felony, and c) where the reasonable man would have foreseen that death would result, are each a sufficient mental state of guilt.

‑Should the penalty be the same in all instances?

‑Do you think that the crime of murder should be restricted to cases in

which the offender has an intent to kill and not be applicable where secondary reasons prevail?

 

Further References

1.         G. Williams, Textbook of Criminal Law (Stevens, 1979), Chapter 9.

2.         Smith and Hogan, Criminal Law, 4th ed. (Butterworths, 1979), Chapter 11.

 


 

2.         WHERE DEATH IS DUE TO NEGLECT

 

The victim of a serious injury may contribute to his eventual death. This may occur in cases in which the victim refuses proper medical attention. An example is the familiar case of Jehovah witnesses refusing blood transfusion.

Let us consider a case in which a Jehovah Witness is seriously Injured during a robbery. A knife is used and the victim's lung is pierced. The doctor seeks permission to give a blood transfusion to properly operate. Permission is refused. The doctor nevertheless operates, but because of loss of blood the victim dies.

This case is not unique. It is, in fact, a typical case of people, because of their religious faith, preferring to die rather than to submit to a blood transfusion. The propriety of their belief is not our concern. But their belief has caused many people to be convicted for a graver crime than they normally should be.

In a decided case in England,, a young man, during a quarrel with girlfriend, hit her with an implement which caused internal injuries. She was unconscious, and the doctors sought her parents' permission to operate, using blood transfusion. They refused. She died. Her boyfriend was found guilty of manslaughter and senced to life imprisonment. If the boyfriend had had the intention to cause grievous bodily harm, he would have been guilty of  murder.

The doctors, in evidence, submitted that her life could have been saved if permission was granted for blood transfusion. If she lived, it is likely that the young man would have been charged for unlawful wounding, and sentenced to probation. Because of the parents' action, his crime was aggravated and his punishment  magnified.

People who engage in crime must nevertneless bear the consences. They take their victims as they find them. There is no obligation on the victim to ameliorate his situation or to seek the best medical attention. As long as the initial injury caused by the accused is the operating cause at the victim's death, then the accused is guilty of murder.

In a well known English case, which exemplifies the operation of a law still in effect in the West Indies, a soldier was bayoneted during a fight between two platoons. The bayonet caused severe internal rupture. During his journey to the hospital, two of his comrades who were taking him felll several times and aggravated the injuries.

 

 

On arrival at the hospital, the doctor, after a cursory examination, did not deem the injury serious, and refused prompt attention. When medical attention was ultimately obtained, the injury was discovered to be more serious than was originally realised. Profuse internal bleeding had ensued. The patient died. If prompt medical attention had been given the patient would have lived. The soldier responsible for the injury was found guilty of murder. The death originated from his action and, thus, he is criminally responsible for it.

Even though the injury was aggravated during the journey to the hospital and the delayed medical attention of the attending doctor at the hospital contributed to the death of the injured soldier, they were not defences or mitigating factors in the charge of murder.

Consider another case. A wife who is thoroughly fed up with her husband decides to put poison in his dinner. He usually eats late at night, very often after she has gone to bed. On this fateful night, the husband does not eat his meal. Alas, a greedy burglar ate the poisoned dinner and died during the early hours of the morning.

The wife, on awaking, rushes to the kitchen to see if her husband had eaten the meal. It is gone. Now, her thoughts are clear and she does not really want to kill her husband any more, so she confesses to him, and begs him to see the doctor immediately. She hears that he did not eat it, and she is much relieved. On opening the door, however, they discover the dead burglar. The wife did not intend that result. She is nevertheless guilty of murder. At the time the burglar ate the meal the wife had an intention to kill a human being. Through her husband's neglect, the burglar was poisoned, and she is deemed to have transferred her malice to the burglar.

The examples discussed in this article are actual cases which show how an offender may be found guilty of murder. They should be borne in mind as we shall lead up shortly to a discussion of capital punishment.

 

QUESTIONS

1.         Should the offender be found gudty of murder in cases in which the neglect of the victim and the poor medical attention given contributed to the victim's death


 

2.         In the example given in the text of the wife who intended to poison her husband but poisoned the burglar instead, should the wife be found guilty of murder?

 

Furher References

1.         G. Williams, op. cit, Chapter 10.

2.         Smith and Hogan, op. cit., Chapter 11.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3          THE PLEA OF INSANITY

The recent Barbadian case in which 20‑year‑old Lennox Randolph Campbell was convicted for the murder of Joyce Crichlow, has brought into focus the significance of insanity in crime and the criminal law. Anyone who has followed the case closely will discern a disparity between insanity in the medical sense and as understood legally. The fact that distinguished doctors qualified in the field of psychiatry attest that the accused was insane, seems to have had very little bearing on the final decision of the jury.

That the accused was the culprit responsible for the gruesome killing was not denied; indeed, it was conceded by the defence. But, the defence sought to show that the accused was insane at the time he committed the act. His actions, responses, and psychopathic behaviour could not therefore be judged as if he were a normal person.

The facts of the case are that the deceased was decapitated and her head was further hacked into several pieces; other details are too ghastly to mention. She was discovered when firemen were summoned to her house to extinguish a fire. Shortly after, the accused was charged and he was alleged to say at the time of arrest that  'Joyce attack I wid a cutlass en I tek de cutlass from she en it drop, en I tek it up en I see she head was evil and I cut if off en I cut it up wid the cutlass.  It did de evil beast so I had to do it. I den went back to loaka (Bellamy) en burn up me clothes. De head look normal to I. Every­thing I see evil I chop it up de same place'.

The alleged confession of the accused is certainly not indicative of a rational thinking person. His thought processes are obviously impaired. Further, there is evidence which points to his aggressiveness ‑ six policemen were required to subdue him. With all this evidence, why did the plea on insanity, and diminished resppnsibility, fail in Court?  There are many reasons!

 

Insanity and the Law

Fundamentally, the law governing the defence of insanity is archaic, narrow, and inapplicable to modern conditions. It is one of the most difficult defences to establish at a criminal trial, and the


 

deficiencies in the present rules are probably responsible for sending many madmen to the gallows, rather than to an asylum.

            Insanity is a peculiar disease from which many people suffer to a certain degree. Indeed, not all madmen are in the psychiatric wards. There are many of our associates ‑with whom we deal daily -who suffer from mental illnesses. The nature of their sickness is such that it can be dealt with by taking drugs. When such a person fails to take his medicine, however, his actions can become quite aggressive and irrational.

Very few madmen are completely unable to function rationally. Those who fall into this category are probably suffering from physical defects of the brain which impair its proper functioning. The majority of madmen are persons who suffer from emotional maladies which cause an impairment of certain mental faculties and produce a defect in reason. The latter category can often be treated in order to prevent violent outbursts.

From the medical point of view, persons from either category can be described as insane. Doctors relentlessly try to point out that these persons cannot be held responsible for all their actions. Aberrant behaviour is often quite involuntary, and even though he thinks that it is wrong, the insane person finds the impulse irresistible. Medically then, they are insane; but too frequently, they are legally sane.

The legal requirement for insanity to be established is a preposterous one. It is derived from a decision in 1843, and inspired by the circurnstances of a celebrated case, and the medical doctrines of the period.

Daniel M'Naghten was a paranoiac who felt he was being persecuted by many people. His chief persecutor, he told his father and other public authorities, was the presiding Prime Minister, Sir Robert Peel. He was determined to assassinate Sir Robert. On the occasion on which the assassination was to be attempted the Prime Minister chose to ride in a different carriage. His private secretary, Edward Drummond, was less fortunate however, because he rode in the carriage originally earmarked for Sir Robert, and was killed in his place.

M'Naghten was tried, held to be of unsound mind, and sent to a lunatic ayslym. But such a verdict brought about the rebuke and indignation of many important people. They were incensed, to say the least, that the hangman should be denied such persons as were evidently aware of what they were doing. The highest tribunal, the House of Lords, was summoned and implored to make a ruling on the subject of insanity.

The M'Naghten rules were devised, and the fact that their creation was stimulated by the indignation of the authorities cannot be ignored, or taken lightly. These rules state that an accused is insane if at the time he committed the act he was 'labouring under such a defect of reason as not to know the nature and quality of the act he was doing; or if he did it, he did not know that what he was doing was wrong'.

Notwithstanding repeated and distinguished criticisms of these rules, by doctors and lawyers alike, they still subsist up to the present time to haunt juries, counsels, and, more poignantly, madmen who have sat in the docks. Lord Coleridge, the distinguished Lord Chief Justice of England, in 1888 said

            “The judicial decisions on questions of insanity are bound by an old authority which,

by the law of modem science [emphasis. added, ed.], is altogether unsound and wrong.”

That was in 1888. It is now 1980, and science has certainly advanced immeasurably during the last ninety years. Lord Brougham, an illustrious Law Lord, said at the time the rules were being established, that

“Nobody is hardly ever really mad enough to be within the definition of madness laid

down in the judges' answers.”

It should be further noted that the M’Naghten rules were made in an era dominated by the long discredited doctrine of phrenology. (See my column, UNDERSTANDING CRIME, in which 1 discussed 'Organs of the Mind', Barbados Advocate‑News, April 30, 1979). Phrenology postulated that the mind was made up of faculties and divided into different compartments; a person, phrenology claims, could be insane in one compartment but sane in others. Such cornpartmentalisation has been utterly rejected, however, and it is now universally recognised that the mind is whole and indivisible. Any meptal disorder, from whichever region of the brain, is likely to have its reverberations on other parts of it.

Serious criticisms can further be made of the different aspects of the rules, but to undertake such a task in this article would make it unduly abstruse. Nevertheless, it should be pointed out that the rules require that the person should have been insane at the time when he committed the act.

This requirement can have serious difficulties.


 

 

The Trial

The jury may be observing a sane man sitting in the docks. He can reason and seems quite normal, so the jurors argue 'Who is he trying to fool?” But the existence of sanity at the time of trial does not mean the presence of a sound mind at the time of the commission of the crime. Persons who suffer from temporary insanity because of an epileptic fit, a stroke, fainting, depression, etc., are usually quite normal, but in that single, unfortunate moment when they 'black out' they may indulge in violent actions which they later regret, and even forget. To ask the jury, as ordinary laymen, to reflect objectively on the evidence, when before them in the docks is a person who appears normal, is highly optimistic.

It was earlier stated that many persons are sane only when they are on prescribed drugs. In the courtroom this may be the case. But, when the act was committed they may not have been rational, thinking persons. Their appreciation of the nature and quality of the act may have been severely impaired by the emotional turbulence to which they are prey. It is submitted that to fully comprehend the significance of this state of affairs we need to appeal to the psychiatrists who are trained in this area. When, therefore, they say that a man is insane we ought to give their opinion some credence and weight.

The doctor in the case of Lennox Campbell said that the accused was insane. His emotional state was flat and blunted. The doctor further said that it was his opinion that 'the accused could have been suffering from a disease of the mind in that his mental faculties were impaired . . . it was possible that when the accused did the act, he did not know the nature and quality of the action . . .' He was of the opinion that 'the accused was insane at the time of the alleged incident'. The jury undoubtedly rejected the psychiatrist's testimony, that of the prison doctor, and other evidence which favours a verdict of guilty, but insane. Their verdict was, 'Guilty of murder'. Whether or not they are correct is for a Court of Appeal to determine and an assessment of their verdict is outside the province of this discussion.*

*Campbell's death sentence was overturned on appeal, and he was committed to an asylum for the insane.

 

 

 

 

Nevertheless, it should be noted that juries are often influenced by public opinion.  The more heinous the crime, the more likely it is that they will reject the plea of insanity.  The killer, they reason, ought to be punished and the gallows is the only definitive way to denounce his actions.  David Berkowiktz, of “Son of Sam” fame, is an example of an obviously insane person who was probably convicted because of popular pressure.  The notorious nature of his actions in killing young girls ‘under the influence of Sam’ were too horrible to condone.

The above arguments must not be interpreted to mean murders are not intolerable and their perpetrators do not deserve punishment.  Of course they do.  However, a madman is mentally incapacitated.  His actions are not vluntary and rational.  To punish him rarely deters similar actions by similar individuals.  These people need medical treatment and should be dealt with accordingly.  The deep indignation which we feel when a ghastly murder is committed should not prevent us from appreciating that some murderers are undeniably insane.  To punish them may satisfy our instinct for revenge but it  says very little for our humanity.

The Royal Commission on Capital Punishment in England in 1953 recommended the abolition of the M’Naughten  rules.  Their submission was not accepted.  Nevertheless, the legislature enacted a defence known as ‘diminished responsibility’, to temper the rigidity of the rules.  This has been adopted in Barbados.  It states that

            “when a person kills or is a party to the killing of another, he shall not be convicted of murder

            if he was suffering from such abnormality of mind (whether arising from a condition of arrested

            or retarded development of mind or any inherent causes or incuced by disease or injury) as

            substantially impaired his mental responsibility for his acts and omissions in doing or being a party

            to the killing”

This defence was also argued in Lennox Campbell’s case, and was rejected.  The basis of the defence is that the person is suffering from an abnormality of mind which impairs his reason.  He may therefore be aware of the nature and quality of  his actions but because of irresistible impulse, say, he is unable to control his actions.  If the defence is accepted it reduces the crime from murder to manslaughter.

The need for the reform of rules related to the plea of insanity is now urgent.  They should be tempered with mercy and extended to allow for the advancement of medical knowledge.  An archaic law which originated in foreign lands, in peculiar circumstances, and influenced by outdated doctrines, should no longer persist in today’s Caribbean.

 

 


 

QUESTIONS

 

1.         It is said that more than half the population suffer from some mental illness; do you agree?

2.         Is it true that some men are insane sometimes, but not at other times?

3.         Should uncontradicted medical evidence of a man's insanity at a trial be binding on the court?

 

Further References

I.          G. Williams, op. cit., Chapter 26.

2.         Smith and Hogan, op. cit., Chapter 9.

3.         Barbara Wootton, Crime and the Criminal Law (London: Stevens, 1963), Chapter 3.

4.         Nigel Walker, Crime and Insanity in England (Edinburgh University Press, 1968).

5.         Sheldon Glueck, Law and Psychiatry (Tavistock Publications, 1962).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4          THE DEFENCE OF PROVOCATION

The common law, in its great wisdom, recognised that some killers kill because they were provoked. It decreed that such killers ought not to be convicted for the capital offence of murder, but for a lesser offence, as their actions were usually prompted by the victims. The severe law of homicide was therefore modified to embrace acts of provocation, and to convict for the offence of manslaughter where provocation was successfully pleaded.

Human tolerance undoubtedly has its limits. Many honourable men can endure, sometimes ignore, repeated taunts, assaults; and attacks on their person or their loved ones. But, when their tolerance is eventually shattered by these provocative acts, they may become irrational and aggressive. Accordingly, under extreme provocation, there may be a sudden temporary loss of self‑control during which a person may kill.

The West Indies' Law Reports, including the unpublished reports of all territories in the Caribbean, are replete with cases in which provocation features as an element in the crime. The verdict, unbelieveably, may be different, depending in which territory the killing was committed. Some territories, e.g. Trinidad, do not allow words to constitute provocation, while others do.

Naturally, not every plea of provocation will succeed. The law only admits that provocation occurs under certain conditions, which will be discussed in another article. We will now confine our­selves in this article to actual examples, to show how provocation operates.

In a notable case, a father returned home to discover a devious character committing an unnatural act with his young son. The protective paternal instinct was outraged, he alleged, and he was immediately led by uncontrollable anger to unleash fatal blows on the culprit. The court accepted his evidence, as the sight of the unnatural act being committed on his son would provoke any rea­sonable man in the realm.

Similarly, a husband who finds his wife in the act of adultery (or vice versa) may lose his self‑control, and if he does, and kills his spouse, the law will reduce the charge of murder to a conviction for manslaughter.

 

 


 

The law recognises that words, as well as acts, may provoke. Words, with their powerful effect, may cause a dethronment of reason, and induce a person to engage in destructive actions which, in a calm state, he would abhor and repudiate. A wife's confession of adultery to her husband has been held to be a serious act of provocation. If the husband's reaction is an immediate fatal blow,his defence of provocation will probably succeed.

However, if he gives his wife a long lecture on the virtues of fidelity, then fetches a weapon and uses it to slay her, he will be denied the defence of provocation. There was time for reason to resume its seat! The law presumes that if there is 'cooling time' between the provocation and the homicide, then the killer had occasion to regain his self‑control and resume his calm posture. In essence, the act of killing must follow spontaneously from the provocative acts. Rarely, if ever, will the defence of provocation succeed if there is a lapse of time between the provocative act and the killing.

It may be considered strange that a wife's confession of adultery, or similar admissions, should arouse such intense passion in her spouse as to cause him to kill. Actions of this nature, unfortunately, are frequent occurrences, and the law wisely concedes and respects these human weaknesses. It acknowledges the intimate bond which marriage creates between two people. An act of adultery, or a confession of it, violates this spiritual and emotional attachment. The spouse who suffers from this violation becomes enraged and jealous. He experiences severe emotional turbulence which may spark off a violent attack from which fatal wounds may be inflicted.

Astonishingly, the law does not recognise the close bond which may prevail between two unmarried persons. Thus, a plea of provocation is not available to a boyfriend who kills his girlfriend for fornicating with a third party, nor to a common law husband who kills his common law wife for a similar deed. The law in the West Indies is somewhat asinine in this respect, as these relationships may be as strong, or even stronger, than a marital one.

This defect in the law can easily be understood, as it originated in a different society with a more orthodox marital culture. But, after many years of application in the West Indies, the law has not been altered to remedy this unhappy situation. Thus, in a notable Trinidadian case, the accused was charged for murdering his common law wife. The facts of the case shows that he lived with her for a considerable time, bought her numerous luxuries, and gave her a roof to live under. As so often happens she, like a real 'yellow bird', left him to live with another man.  Additionally, she took much of his belongings and left the house almost bare.

The accused told his friends and family of the overwhelming love he cherished for this woman and requested them to persuade her to return to him. Evidence was tendered to show he was under intense emotional strain. On the fatal day, he went to his paramour's house to state his case and to plead with her to resume their relationship. She answered by throwing his belongings at him and added that she had found another man who was '100 times sweeter than him'. His immediate response was like that of a madman. He attacked her and stabbed lher several times. She died.

He promptly gave himself to the police and argued that he was utterly unaware of his actions. He claimed that a great power seized him and thrusted him into his fatal attack. These claims were evidently symptomatic of provocation. Amazingly, the Trinidadian courts held that he was guilty of murder as the law in Trinidad did not recognise that the words she uttered, teasing as they no doubt

are, were sufficient provocation to cause him to lose his self‑control. Fortunately, if this case were tried in other territories today, such as Barbados and Jamaica, the accused would probably be found guilty of manslaughter, and not murder. Barbados accepts that words may cause provocation, while Trinidad does not. Barbados nevertheless does not recognise inflidelity between unmarried

persons as provocation. This is unfortunate!

The defence of provocation has done much to ameliorate the severity of a charge of murder. It nevertheless embodies rigid rules which are absurd and inapplicable to West Indian conditions. In the next article we continue the discussion on the defence of provocation in the Caribbean.

 

QUESTIONS

1.         Is the common law in the West Indies realistic when it allows the defence of provocation

 to a legally married husband who slays his wife for adultery but not to a common law

husband who kills his paramour?

2.         Do people act differently when they are emotionally charged?

Further References

I            G. Williams, op. cit., Chapter 22.

2.         Smith and Hogan, op. cit., Chapter 11.

3.         J.A. Gray, The Physiology of Fear and Stress (London, 1971).

4.         R.N. Mowath, Morbid Jealousy and Murder (London, 1965).

 

 

 

5.         THE BEHAVIOUR OF THE REASONABLE MAN

In the last article, we discussed how provocation may reduce the crime of murder to a lesser one of manslaughter. The reason given is simply that the law recognises the frailties of human nature under severe and emotional strain. The common law, with legislative approval, has nevertheless placed the defence of provocation in a straitjacket, and allows it very little flexibility in its operation.

Whether actions or words produce provocation is judged by the effect they have on the 'reasonable man'. The reasonable man, in legal parlance, is a hypothetical creature, who, we will observe, is a most unique, and possibly rare, character. The Reasonable man, for instance, is not easily excitable, not mentally deficient, does not possess physical defects, and will remain calm in many situations in which he is abused and mocked. An amazing creature.

The reasonable man, specifically, is not sexually impotent. This physical feature was examined in a notable case in England involving an impotent young man known as Bedder. Bedder was obsessed with his physical defect. He sought to remedy it and to reassert his sexual powers by visiting prostitutes. While on one of these therapeutic visits, Bedder was physically unable to obtain an erection. Copulation was therefore impossible. The prostitute, on this occasion, jeered Bedder, and taunted him hilariously about his sexual disability. After some time, she proceeded to leave, which annoyed Bedder, who tried to stop her.

In the accompanying struggle to detain her, Bedder claimed that she slapped him in his face, punched him in his stomach,.and kicked him in his genitals. In his defence, he alleged that he suffered an immediate 'black‑out', during which he fatally stabbed her.

The court ruled at the trial, and in subsequent appeals, that Bedder's impotence was of no significance. He was to be judged by the standards of the reasonable man, without the defect which Bedder possessed. Bedder was accordingly charged and convicted for murder.

The Caribbean inherited this principle declared in Bedder's case. It is a most outrageous and intolerable rule which can find very little approbation in the region. Can you imagine that the reasonable man does not stammer? We all know that, in the Caribbean, many persons stutter and suffer from other defects of speech which make them physically tense. The slightest imitation of their speech is annoying and they often react violently to such mimicry. Should not the defence of provocation be available to a stutterer, who, being teased and mocked, loses his self‑control and kills the persistent teaser? The idea of a hypothetical creature, known as the reasonable man, by whom all criminals are to be judged, is preposterous, and even more so in the Caribbean. To discern this unique figure is objectively impossible.

In any murder trial in which provocation is pleaded, the judge has to direct the jurors to ask themselves the question, 'Was the provocation directed to the defendant sufficient to make a reasonable man do as the defendant did?' This is the first question. If the answer to the first is yes, the second question to the jury is, 'Was the defendant actually provoked by the alleged acts of the victim [or a third party] ?' The jury frequently answers the first question in the negative, thereby depriving the defendant of the defence. It is definitely easy to understand the action of the jury, as the subsequent discussion will demonstrate.

The jury is supposed to be the standard bearer of the reasonable man in the society. They must determine whether the reasonable man would have been provoked by the words or actions which, the defendant alleged, had occurred. Are they capable of doing so?

It does not need to be proved, it is quite obvious, that most apprehended criminals originate from the poorer classes in the society. Most of them are illiterate, or barely literate. Many of them are unemployed, and probably unemployable. Those evident features are certainly not true of persons chosen to serve on the jury. Jurors are persons who possess a minimum standard of education, are employed, and probably living a comfortable, middle‑class life. The juries in the Caribbean are rarely the peers of men on trial.

To ask juries therefore to determine who is the reasonable man is, to say the least, untenable. The jury will naturally see the reasonable man not like the man in the dock, but like an upright, normal, middle‑class individual who enjoys an average standard of living and displays significant educational qualifications. Convicted criminals often argue that they cannot get justice under the present jury system. And any perceptive examination of the present selection of jurors will show that their claims are not without substance.

The requirement of 'the reasonable man' as the standard to assess provocation is no longer acceptable and ought to be immediately reviewed by the law‑makers. England, from whence this hypothetical creature originated, has started to impose characteristics on the reasonable man which a defendant manifestly possesses. Accordingly, where a fifteen‑year‑old boy killed an adult whom he alleged had buggered him, and then laughed at him, the court held that a reasonable man must be assessed as if he were fifteen years old. This is a step in the right direction. But, there are many steps to be taken before the defence of provocation achieves a practical foundation.

 

QUESTIONS

I .         Should an accused murderer be judged by the standards of the reasonable  man'?

2.         Are juries objective or do they tend to be influenced by inner 'feelings' or  emotions?

3.         Most convicted criminals come from low socio‑economic backgrounds, how far do you believe the selective choice of the jurors contributes to this reality?

 

Further References

1.         The Washington Research Project, The Case Against Capital Punishment,  Washington, D.C.

2.         W. Bowers, Executions in America (Lexington Books, 1974).

3.         C. L. Black, Capital Punishment‑ The Inevitability of Caprice and Mistake (New York: Norton & Co. Inc., 1974).

4.         'A Study of the California Penalty Jury in First‑Degree Murder Cases', 21  Stanford L. Rev. 1302 (1969).

5.         Hermann, 'Occupations of Jurors as an Influence on their Verdict', 5 forum 150 (1969).

6.         F. Goldberg, 'The Jury: A Reflection of the Prejudices of the Community',  20 Hastings L.J. 1417 (1969).

 

 


 

6.         THE USE OF EXCESSIVE FORCE

 

The right to defend oneself and one's property is carefully and indelibly enshrined in every criminal law system. The existence of this right, imposes a duty on would‑be violators to refrain from attacking one's person, property or family; or otherwise, to suffer the consequences. In the proper exercise of this right, the, law recognises that a person may have to severely injure or deliberately kill

another to protect himself or his loved ones.

The law nevertheless has developed a doctrine of excessive self-defence which basically argues that when excessive force is used in defending oneself a criminal charge may arise. In one sense, this is a wise approach. The slightest attack ought not to stimulate a violent response. Thus, if John touches Peter angrily, it would be a clear case of excessive force for Peter to respond by shooting him, or cutting him into several pieces. Likewise, if someone should tease you, to respond by petting stones at the teaser  would be an obvious example of excessive force.

On the other hand, the force used, even though excessive, may be quite necessary, and even justifiable. In a recent case in Barbados, a young girl was charged for killing a persistent suitor.' She stated after the offence that her actions followed after she repeatedly and unquestionably refused romantic overtures. To protect herself and to avoid a possible assault she fatally stabbed the unlucky fellow. She was charged with murder. (At the time of writing, the result of this case is not known.)

These hypothetical and actual examples are frequent occurrences in the Caribbean. Ought these persons to be charged and convicted of a criminal offence?

In a notorious Jamaican case the effect of the overcrowded conditions in prisons was vividly brought in public focus. In a small cell, built to house one prisoner, were placed three prisoners. During the course of the lonely night, one of thern sought to participate in homosexual relations with Bartley, one of the other two. His invitation for sodomy was vehemently refused. Not to be deterred, the insistent and passionate prisoner attacked Bartley, pulled off his pants and was determined to have his desires gratified. Bartley thereupon seized a knife (which he alleged was the homosexual's)

and stabbed him several times. He died from the injuries received. Bartley was charged and convicted for murder. He was however acquitted on appeal, as the defence of self‑defence was not adequately put to the jury by the trial judge. The fact that he was charged and convicted for murder shows how unlucky some prisoners can be.

 

 

The judicial reasoning that one could be guilty of murder when excessive force is used to kill prevailed in the courts during the sixties. The natural consequence was that where excessive force was used to avoid a criminal attack, the intended victim of the assault or the one who used the excessive force, would now become a criminal. This consequence flowed from two absurd English decisions which held that a person who is attacked or provoked must retaliate with proportionate force. Such a view is untenable! In the heat of attack, it is unwise to ask of any ordinary person to weigh and balance the force he uses to repel it.

A person who is attacked first tries to defuse the attacks and to destroy the attackers to avoid a subsequent one. It would be unwise simply to counter the attack. The attacker may still have

energy and strength to launch another assault!

More fundamental, however, is the psychological evidence that a person seized by fear for his safety secretes an abnormal flow of adrenalin which makes his actions excitable, violent, and frequently uncontrollable. Similarly, a person who is provoked loses his self-control as a result of the excessive flow of adrenalin in his system. These physiological states emphasise that in many situations we may become overwhelmed by passion and are not masters of our actions. Recognising these medical realities, one finds it paradoxical that the law should require the victim of an attack or one who is provoked, to use proportionate force to resist the attack. In the heat of the moment, it is more likely that excessive force will be used to destroy the immediate attack and the possibility of subsequent ones, rather than trying to determine how much force is to be used.

For example, a girl who is attacked may succeed in temporarily paralysing the attacker and, would‑be, rapist. If shre then uses a stick and cracks his skull and kills him, most people would consider her actions a wise and reasonable one, The law nevertheless is exceptional in this regard because it would lay a charge of homicide on her.  She would then have to show that her actions were justified in the light of the attacker's intention to rob and rape her, and failure to permanently destroy the attacker would leave open the possibility of being ravished by him when lie recuperates from the temporary paralysis. She may not succeed in discharging this burden of proof.

Fortunately, the law has recognised the absurdity of convicting for murder where excessive force is used to foil an attack or too avoid a criminal offence. The lesser charge of manslaughter is sub‑stituted.

Unfortunately, however, there are many jurisdictions which still pursue a charge of  murder and even now sorne persons are convicted where excessive force is used to counter an attack or where force is used after being provoked.

The doctrine of excessive self‑defence certainly needs revision, it is absurd that a victim of an attack who courageously defends himself or herself should become guilty of murder or manslaughter.

To defend oneself is the most fundamental of man’s instinctive drives. The law should accord with this stark reality, and only in exceptional circumstances should a person who uses excessive force to protect himself and others be made to suffer the penalty of the criminal law.

 

QUESTIONS

1.         Should a person who uses excessive force to repel a criminal attack be found guilty

of a crime?

2.         Do you suffer frorn physiological changes when you are

            a) frightened,

(b) in a quarrel, or

(c) attacked physically by someone?

 

Further References

1.         Cardoza, 'What Medicine Can Do for Law', in Selected Writings of Benjamin Nathan Cardoza, ed. Hall (1947).

2.         B. E. Eleftherion, and J. P. Scott (eds.). The Physiology of Aggression and Defeat (New York, 1971).

3.         A. Storr, Human Aggression (London, 1968).

4.         N. Morris, and C. Howard, Studies in Criminal Law  (0xford 1964).

 

 

 

7          TO KILL OR TO DIE

 

None of us would like to be forced into the precarious position of having to decide whether to kill or to die. We certainly do not want to kill, but we may have to do so in order to live. Many unlucky persons have had to face this dilemma, and their choice is definitely between the devil and the deep blue sea.

The decision to kill or to die may arise in many unlikely, though possible, situations. The most likely situation is one in which a person is confronted with imminent death at the hands of a criminal (or criminals), and kills in self‑defence. We have already dealt with this matter (see previous article) and no further discussion is necessary. Suffice it to say that the law recognises killing in self‑defence as a complete defence to a charge of murder.

On the other hand, consider yourself in the following predicament. You are in a shipwreck and no help is in sight. By unknown means you find yourself in possession of a plank of wood which barely keeps you afloat. Nearby, you nervously observe another victim of the shipwreck who stretches his hand to grab your plank; yes, your plank, the one that barely keeps you afloat! What are you to do?

You are aware, more certainly so, that any extra weight will cause the plank to submerge and thereby to cause your inevitable drowning. Would you allow him to hold on, even though by doing so both of you will sink and drown? Or, would you push him off and stay afloat, even though you knowingly cause his imminent death through drowning? Are you magnanimous enough to die together? I doubt it. It is more likely that you will push him away and face the consequences of your action.

This hypothetical case is not far removed from reality. A somewhat similar incident has occurred and was tried in a court of law. The verdict was manslaughter.

Consider a second hypothetical case. John is the leader of a group of three mountaineers. They are all climbing a tall cliff and are attached to a long rope. The rope had been previously used and was inspected thoroughly before they embarked on this climb. When John arrives at the edge of the cliff he painfully observes that the rope is partially severed by the sharp edge of the rock over

which it perilously hangs. He quickly calculates that the rope cannot support all three members of

the group; in fact, it is about to be totally severed. Reluctantly, he cuts the rope below him, sending

the other two mountaineers crashing to their untimely death. John is saved and tests show that his actions saved his life. Would you convict John for murder? 

The nearest reported law case to our hypothetical example is the infamous case of Dudley and Stephens, decided in 1884. The law developed in this case, and which still prevails today, originated from tragic circumstances on which even the jury refused to pass a verdict. The following is a summary of the case.

The crew of a yacht were compelled to put into an open boat during a storm. They drifted several hundred miles away from the land. On the twentieth day, after eight days without food and water, two of the crew (Dudley and Stephens) killed the cabin‑boy with a knife. They devoured portions of his body. Tbey  were obviously starving, and their actions were undoubtedly precipitated by the sheer necessity to survive. Four days after the killing they were rescued. They were in very poor health.

At the trial, the jury refused to undertake the responsibility of convicting Dudley and Stephens. They declared in a special verdict that 'if the men had not fed upon the body of the boy they would probably not have survived to be picked up and rescued, but would within the four days have died of famine; that the boy, being in a much weaker condition, was likely to have died before them; that at the time of the act there was no sail in sight, nor any reasonable prospect of relief . . . . that assuming any necessity to kill anyone, there was no greater necessity for killing the boy than any of the other three men, but whether, upon the whole matter, the prisoners were and are guilty of murder, the jury is ignorant, and refer to the court'.

The Divisional Court of five judges then considered the case and held that the act was murder. The men were sentenced to death, the mandatory sentence for murder. The Crown mercifully com­muted the sentence to six months' imprisonment.

The law has not changed measurably since that drarnatic case. It still resolutely refuses to acknowledge the defence of necessity. To plead that one's actions are necessary in the circumstances is of no avail. The law requires that the ordinary human being ought to give his life courageously rather than cause the death of another. There are certainly cases, like our hypothetical ones, in which necessity as a defence should succeed.  But would you also consider a thief’s plea that he stole food in order to avoid imminent starvation an adequate defence?

 

Many arguments have been put forward to support the view that necessity should be a defence.  Unfortunately, it is difficult to determine what is necessary in any given circumstance.  To leave it up to the jury is unlikely to solve the problem.  The law nevertheless needs to take cognizance of certain cases of necessity – such as Dudley the Stephens – which cry for judicial mercy rather that executive clemency.

 

Questions

1.         Suppose you were in John’s position in the hypothetical example.  Would

            yo have done the same thing?

2.         Should the law recognise the defence of necessity?

 

 

Further References

1.         G. Williams, op. cit, Chapter 24

2.         Smith and Hogan, op. cit. Chapter 9

3.         See G. Williams Cambrian L. Rev. (1978) for a full examination of

            R v. Dudley and Stephens.


 

8          KILL OR BE KILLED

 

Most of us shudder under threats. We fear death and injury to ourselves, our family and loved ones, and even to our friends and associates. We would really risk injury if, by so doing, lives could be saved. But how many of us would deliberately ignore the threat of death in order to save another's life? The impending fear of death may indeed prompt us into action. Our action may require us to kill in cold blood or to assist in doing so, and we reluctantly and painfully comply. In recent years, two prominent cases have been discussed in legal parlance without an appropriate and acceptable conclusion.

The first case concerns an incident occurring in Northern Ireland involving members of the terrorist organisation, the Irish Republican Army. The appellant, Lynch, alleged that he was forced under the threat of death to yield to the wishes of well‑known members of the IRA. Lynch was a taxi‑driver and, on the day in question, claims that he was taken at gun‑point and forced to convey the members of the IRA to the scene of the crime. While in the taxi, he became aware of the terrorists' intention; they planned to shoot a policeman. Lynch, then and there, could beg leave and ask to be excused; which he actually did. Spontaneously, and not surprisingly, he felt the butt of a gun twitching his neck with firm instructions to keep driving, and obey all further instructions.

Well, Lynch was not going to argue with a gun; his courage had its limits. He drove on, and while passing through a Belfast Street, the terrorists opened gun‑fire on the policeman and killed him. Lynch continued to drive the terriorists after the incident and took them outside of the city to safety. He was charged for murder.

Lynch's case was appealed up to the House of Lords, the highest court of appeal for Northern Ireland to determine whether duress was a defence to murder. His main contention was that he was always under the immediate threat of death. His actions were therefore induced by the possible consequences if he should act  contrary to the wishes of the terrorists. In these circumstances, Lynch contended that his ordinary power of human resistance was actively impaired, his conduct should therefore be excusable,

The House of Lords, by a majority judgment of three to two, accepted the proposition that an accessory, or one who passively participates in the crime, should have the defence of duress available to him. They left open the question whether or not a person actually taking part in the killing while under the threat of death should have the defence of duress, available to him. Lynch had therefore won his first battle. He needed now to show that he was merely an accomplice or a passive participant.

The case went back to trial to determine the extent of Lynch's participation. The jury found that Lynch was not an accessory, but was an active participant in the crime. They clearly rejected Lynch's evidence that he was threatened. He was convicted for murder. So much for Lynch. The principle enunciated in the case, nevertheless, still prevails as the existing law.

Soon after, the interesting case of Stanley Abbott surfaced.  Abott, Abdul Malik and others were charged and convicted for the murder of a young English socialite in Trinidad. The victim was killed in the most vicious and outrageous manner. She was held by Abbott; and while being so held, she was stabbed several times by others. She was then buried; Abbott again assisted with her burial Medical evidence showed that she died, not from the stab wounds, but from suffocation caused by the burial.

Abbott appealed the decision. He prayed for the court to accept his plea of duress. His plea was based on his allegation, and. supported by independent testimony, that Malik had threatened to kill his dear mother unless he complied with his orders. He was spellbound by Malik's threat and the likelihood that his mother would be hurt. His fear for his mother's life was therefore the principal factor which forced him to participate in the ghastly crime.

The Privy Council, the highest Court of Appeal for the Caribbean refused Abbott's supplication. It was a majority verdict of three to two. The majority argued that a killer cannot call in aid the defence of duress; a man ought to sacrifice his own life rather than take that of another. The minority of the two learned law Lords felt that the majority's decision was untenable. It is unreasonable, the minority argued, to ask someone to be noble and magnanimous enough to sacrifice his life rather than to obey a dangerous man's order to kill. It is a clear choice between killing or being killed.

The law recognises that the threat to kill one's children or one'simmediate family is as strong as the threat against oneself. That was the case with Abbott.; his mother was threatened. It is quite

clear, that the law is caught up in a moral dilemma. The killer, under duress , is probably overwhelmed by instincts of self preservation and protection of his family. He is therefore forced to obey the orders of determined and dangerous men to save his own skin. Thus to deny him the right Ito self‑preservation may seem ridiculous.

On the other hand, a person who is given orders to kill may hope that if he refuses to execute them then no harm  will result; the threat is a mere bluff.  If the circumstances permit he may even

try to escape, or to inform the police, or to risk the possibility of only slight injury to himself. These are mere speculations! When one finds oneself in the position of Abbott, and possibly Lynch, there might be little time to think, and in the heat of the moment actions may follow without sufficient reflection.

Abbott's plea was rejected on a bare majority. A differently constituted court may have held in Abbott's favour because there are many who take the view that the defence of duress, where showni should be available to all killers. Abbott was unlucky, he was hanged inTrinidad.

The law, as derived from Abbott's case, expects us to exercise extraordinary courage. We must refrain from actively assisting in the death of another, even though it means sacrificing our own life. If we give in to the threat we would be guilty of murder and sentenced to the gallows. In other words, we would be 'damned if we do and damned if we don't'.

 

QUESTIONS

1.         What would be your reactions if gunmen instructed you to commit an

atrocious crime in order to save your own life?

2.         Should the law take into account individual human weaknesses? Or should

it set standards with which all human beings must comply?

 

Further References

I .         G. Williams, op. cit., Chapter 25.

2.         Smith and Hogan, op. Cit., Chapter 9.

 

 

 

 

 

 

 

 

 

 

 

9.         THE DESIRE TO KILL

 

Do people, kill without reason or motive? Are killings enjoyed by the killer? Do some human beings have a passion to kill others?

Many of us, who are ardent readers of detective novels and are keen television and movie observers will automatically conclude that people who kill do so in cold blood, with malice aforethought, intentionally, deliberately and with all the resources at their command. The script‑writers excite and satisfy our desires for adventure, fantasy, and exaggeration. But, do they reflect reality'? The great movies such as Jaws, Star Wars, Close Encounters, Exorcist, etc. are works of creative and imaginative writers, producers, and actors. They are made to make money but rarely, if ever, do, they reflect true life situations. And in the same way those great scenes of murder, killings, and ghastly orgies must be seen as exaggerations and fantasy designed to exploit the gullible.. The real life killers have very little resemblance to those we see on television and at the movies. Murderers are usually ordinary people with no previous criminal convictions, and no features which would allow anyone to predict that they would be murderers.

People kill for a variety of reasons and in this article we want to discuss whether murders are committed simply because there exists an intense desire to kill, or whether there are other features which will cause murders to occur. To properly focus our problem, we can try to compare the killer with other criminals.

 The rapist may rape because there is an intense craving and instinctive lust, and the act of rape apparently satisfies such lecherour desires. Rape may also engender a feeling of status and power. The ability to rape women of a higher socio‑economic, level or another race may not only bring sexual satisfaction but socio‑psychological power. The desire to rape is assimilated in the desire for power. To some criminals they complement one another, the pleasure, and perhaps the power, obtained from the criminal act.

The confidence tricksters and other professionals are further examples of criminals who get gratification from their cunning tricks and beguiling performance of a criminal act. They pursue

their crimes not only for the benefits, but principally for the psychological satisfaction of hoodwinking their victims or completing a well‑planned burglary, theft, etc. Can such satisfaction which these criminals get from the act itself be the same for the killers? In killing the victim, is there pleasure or satisfaction?

One can hardly deny that there are killings which are desired and probably enjoyed. The contract or professional killers are mercenaries who kill for a price, and they certainly enjoy the success of their work. So too are terrorists who risk death to achieve their aims. The killing of the authorities delight them immensely. Alternatively, the slaying of a terrorist may delight the authorities. Similarly, in a racial or religious conflict the death of an opponent brings exhilaration and satisfaction.

Additionally, we must not ignore the passionate desire of the populace who ask for the life of the murderer in revenge. The instinctive urge for revenge, vindictiveness, and retaliation inspire a relentless passion to execute or to hang the murderer. This is the single, most important reason for those who seek to retain the death penalty. And in logical terms, this desire for revenge in homicide cases is no different from the desire to kill. It is of no concern to the retentionists that contract killers, terrorists and the like are undeterred by the penalty of death. It is the thirst for revenge, for blood, for the life of the murderer which seems to absorb and to degrade us in our darker moments.

On the other hand, if we examine the majority of killings in our society we can easily discern that they are committed in emotionally charged atmospheres - in rage, in envy, through jealously, and when ungovernable passions are awakened. Every so often there are ghastly and wanton killings in which the killers unleash their fury and might on the victims. The victims' bodies are mutilated and sadistically destroyed. The action of the killer more closely resembles the work of an animal in the jungle rather than a human being. On close examination, however, the killers are usually found to be of insane disposition. These killings are referred to as 'abnormal' murders, and the killers are unlikely to be deterred by any rational considerations. The Heaths, the Haighs, the Christies., the Berko­witzes, etc. are within this category.

The insane killers are psychiatric cases. They kill for unknown and inexplicable reasons. To say that they have an intention or desire to kill is probably not correct since they are incapable of such mental formulation. Many of these mentally abnormal offenders are goaded into their insane frenzy by the irresistible impulses they experience, and their action is deemed involuntary and of diminished responsibility. They should be dealt with by the medical authorities.

 

 

 

 

 

Then we have the 'normal' murders by killers whose killings are unjustifiable, who kill for petty reasons, who kill in a fight or dispute, or after an emotional argument. These are the killings which generally occur in most of our Caribbean territories. The usual victim is a common law wife, the mother of the killer's children, or someone of whom it can be said that there is some emotional attachment with the offender. The offender's action is often prompted by some misdeed or by the behaviour of the victim. He is usually remorseful and repentant after his fatal blow, and would gladly do anything if in so doing the life of the victim could be reinstated. Without fear of contradiction it can be said that the majority of murderers on deathrow in the West Indies committed these murders of passion. They are the ones who are easily apprehended, who are without financial resources to get brilliant lawyers to defend them, the incompetent and friendless souls who are usually found guilty of murder and subsequently hanged.

Alas, many persons in our society have little sympathy with killers. These killers, even though it can be shown that they lack the intention to kill, are considered dangerous and evil. The strict retributivists argue that the act of killing is sufficient justification for ridding society of these unwanted elements. The presence or absence of the desire or intention to kill is of no significance. It is a 'life for a life'.

The accumulated evidence in many countries does not show that killers, who are caught and convicted, do so for fun or out of the sheer desire to kill. About those who are not apprehended we are still in the dark. Their reasons for killing are therefore a matter of speculation.

 

QUESTIONS

1.         Do you agree that the murders in your society are different from those you have seen on TV and at the movies, or those you read about?

2.         Is it likely that psychologically sane persons get satisfaction out of killing others?

3.         Who are the usual victims of murder?

4.         What do you understand by 'normal' murders?

 

Further References

1.         Von Ifirsch, 'Prediction of Criminal Conduct and Preventive Confinement of Convicted Persons', 21 Buffalo L. Rev. 717 (1972).

2.         Thornton, 'Terrorism and the Death Penalty', America, Dec. 11, 1976.

3.         Macdonald, Critchley, ed., The Trial of Neville Gevely Heath (Londow, 1951)

10        THE SEARCH FOR THE KILLER

 

The killer has struck! A body is discovered!  And, it is crystal clear that a criminal is at large. Until he is found, the society cannot rest.

As soon as a killing is known the relentless search for the killer is undertaken with unabated fervour by the police, and others who are keen and willing to assist. Hideous and gruesome crimes, such as murder, bring out the best investigative skills of the police. For this simple reason, more than any other, the clear‑up rate for murder is higher than for other crimes.

The Caribbean, fortunately, possesses one, of the lowest murder rates in the world; and, in spite of the few well publicised unsolved murders, the clear‑up rate is second to none, Most of the murders which occur here are emotional affairs, when passions are excited, and there is no recourse to reason and self‑control. The killer is usually known to witnesses, and his apprehension therefore poses minor difficulties.

One ventures to suggest that nine out of ten murderers in the West Indies are first‑time offenders. They are probably appearing before the court for the very first time. The commonly held view of a murderer as a violent and dangerous criminal cannot be corroborated by the records. Killers in West Indian societies are unlikely to be contract or professional criminals., In small societies one can rarely undertake professional crimes and hope to get away.; the chance of escaping is too low, and professional criminals, are too intelligent not to realise that simple truth.

The, search for the killer In other countries and in varying circumstances, are even more complex and frustrating than obtains in the West Indies. The apprehension and conviction of the wrong man become highy probable.

Many of us are avid readers of detective novels, such as books written by Agatha Christie; are we ever sure who is the killer until the author explains the mystery in the last few chapters? These stories may be works of fiction, but they admirably 'demonstrate the difficulties and opportunities for mistakes which arise in many murder cases. The police are therefore placed in grave doubt and uncertainty as to the real killer.

Murders are usually private affairs. A well plan murder leaves no trace of the killer. The victim, who may be the only one who  saw the killer, is dead, and so is unable to assist anymore., There may have been no witnesses, not even a clue for the police to start an investigation. All that is known is that there is a murdered body.  In this regard, murder is different from other heinous crimes, such as rape. The victim of rape can identify the rapist and assist the police in many other ways. But that is not the case with murder.  The police frequently have to rely merely on circumstantial evidence and the observation of frightened bystanders.

A significant feature, which is rarely considered by many judicial systems, is that murder witnesses tend to be unreliable observers. In their fright and astonishment, it is awfully difficult for them to observe the killer and to identify him correctly afterwards.

In a remarkable case in Jamaica, Noel Absolam was charged for murder; it was alleged that he shot and killed the victim in cold blood.  Absolam claimed that he was not at the scene of the murder but, at the relevant time, was at home. His mother gave evidence to support his claim. Absolam and his mother further argued that the person who may have committed the crime was his identical twin brother. The witnesses for the Crown, on the other hand, were emphatic that Noel Absolam was the culprit; their evidence was based solely on their identification of him.

Noel had no previous conviction, even though his brother was arrested and convicted several times. Significantly, his brother was killed in a shoot‑out with the police between the time of the mur­der and the trial. There was no dispute that Absolam had an identical twin brother. There was always the possibility that the twin brother could have been the real culprit. There was no doubt that Noel Absolam had a clean record, while his brother had a criminal one.  Yet, the court accepted the evidence of the witnesses who claimed that Noel Absolam was the real culprit, rejected Absolam's evidence and his mother's,  and found him guilty of murder. He was hanged in 1976. Could Noel Absolam have been an innocent victim of the death penalty?

The case is not an isolated incident. In big cities the identification of the real killer poses grave problems, and the possibility for mistakes. are infinite. The ultimate verdict rests on the shoulders of the jury which must decide whether or not the real killer is in the dock.

1 The power of the jury can be seen in the following case, an actual example and not a fictitious one. Six gunmen entered a grocery at 11.30 p.m. one Friday night.  They ordered the few remaining

customers to lie on the floor. After, robbing the grocer, they fatally shot him. One of the men charged for the murder was identified by two of the customers who were forced to lie down on the ground. The same man brought seven witnesses to court to give evidence that he was playing dominoes fifteen miles away from the scene of the crime on the relevant Friday night until 1.30 a.m. the next morning. One of his witnesses was even a policeman, who gave evidence that he took the accused home. at 2 a.m. The evidence was strong that the accused man was elsewhere. The jury rejected this evidence, accepted the identification evidence of the two witnesses, and found the accused guilty of murder.

The possibility that an error can be made in the conviction of an offender cannot be easily ignored. It is even more important when the consequence is one of life or death. The infallibility of human judgment has never been shown and it is one of the factors we must consider when we continue our discussion on capital punishment.

 

QUESTIONS

1.         If you were criminally assaulted by a Rasta and the following day you were asked to

identify your attacker from twelve similarly built, attired, and identical Rastas,would you

be able to do so positively?

2.         Do you believe that many murders occur which pass as natural and accidental deaths?

3.         Are killers any different from other criminals in the execution of their crime?

 

Further References

1.         T. Sellin, 'The Death Penalty and Police Safety', in Capital Punishment, ed.

Thorsten Sellin (New York: Harper & Row, 1967).

2.         C. D. Newton and F. E. Ziniring, Firearms and Violence in American Life.

Staff report to the National Comn‑iission on the Causes and Prevention of Violence

(U. S. Government Printing Office, 1969).

 

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11        THE QUESTION OF CAPITAL PUNISHMENT

 

When the issue of life is at stake, deep sentiments are awakened. It is therefere not surprising that in many countries and in many different legal systems of the world the debate on capital punish­merit persists unabatedly.

The House of Commons in England recently debated a private motion to re‑introduce hanging (which is the form of capital punishment known to us) into the legal system. The Honourable Members voted by an overwhelming majority against the motion, i.e. for no hanging. In the United States, numerous states have voted to bring back the electric chair.

In the Caribbean, Jamaica and Barbados have determined to discuss the issue in their respective Parliaments. Jamaica's Parliament has already done so, and by a slim majority of 23 to 20, the House voted to retain hanging.  When the motion reached the Upper House, however, the learned Senators voted to have an examination of the socio‑economic influences related to hanging to determine whether to retain, to modify, or to abolish it. Thus the House will have another go at a later date. Barbados' Parliament will shortly give its consideration to hanging, and the people eagerly await the final outcome of this debate.

In view of Popular opinion, it is somewhat surprising that the English Parliament should vote so overwhelmingly against capital punishment, The increase in criminal violence, terrorism, and deaths of innocent people have outraged the man in the street. Popular opinion was therefore decisively in favour of hanging, yet their Parliament voted aganist it.

Those of us who have been privileged to read Hansard's report of that momentous debate will note that the arguments for and against capital punishment were equally strong. But, the speeches of the present Home Secretary, William Whitelaw, former Home Secretaries, and other distinguished figures who have been closely connected to the judicial and penal system were outstanding contri­butions and played a significant role towards the final outcome.

We hope that Mernbers of Parliament in Barbados, Jamaica, and the other Caribbean territories will consider it wise and sufficiently important to read the debate just mentioned. Indeed, it should be the duty of all responsible parliamentarians to acquaint themselves with the arguments for

 

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and against hanging before voting. The literature on the subject is quite vast and raises important moral, legal, and philosophical questions.

In this, and the next few articles, we will discuss a number of issues relating to capital punishment.

 

Logical Arguments

Any serious study of capital punishment will demonstrate that support for it is based on deep‑seated emotions of revenge, vindictiveness, denunciation, and the utilitarian aim of deterrence. Popular opinion is not swayed by any knowledge of hanging ‑ it is usually done behind walls ‑ nor of its deterrent effect, but by the resentment which is aroused by a criminal who has killed. The popular notion is that it is an eye for an eye, and a life for a life. The man, who under premeditation and of his own free will takes another's life, has abrogated his right to live. Like his unfortunate victim, he too should entertain no further earthly existence; he should be laid to eternal rest.

Only when the killer is banished will the emotions be satisfied and people's minds return to their inner calm. These strong sentiments for hanging cannot be easily dismissed; neither can they be appeased by rational and logical arguments. Emotions like sex, rage, jealously, and envy, are rarely, if ever, satisfied by mere arguments: there must be action. The common man's perception of justice is one in which the offender suffers the same fate as the victim. Justice is seen as retaliation and the imposition of equal gain or suffering. Justice Potter Stewart sums up the argument for retribution when he said in the important United States Supreme Court case of Furnian v. Georgia ( 1972) that

“The instinct for retribution is part of the nature of man, and channeling that instinct in the

administration of criminal justice serves an important purpose in promoting the stability of a

society governed by law. When people begin to believe that organised society is unwilling

or unable to impose upon criminal offenders the punishment they 'deserve', then they have

sown the seeds of anarchy .... of self‑help, vigilante justice, and Lynch law.

The crucial question which any reasonable and objective observer should nevertheless ask is  whether or not the killing of the killer restores the balance of society to its former order.  If the sole purpose of capital punishment is revenge and vindication, is there anything to be gained by it?

 

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Most courts have rejected the notion of revenge as an objective of capital punishment.. To do otherwise would be to admit the existence of barbarity and vindictive rage in their penal system. So the usual argument for capital punishment is that of deterrence and denunciation. Deterrence will need a whole article, but denunciation can be dealt with immediately.

Capital punishment as the ultimate sanction to denounce the crime of murder is a formidable proposition. Both retentionists and abolitionists will concede that this is the strongest agrument in favour of it. There must be a firm, final, and feared punishment which will show society's disgust, repugnance, and outrage. In such a punishment, society denounces the act of the murderer, and in­forms its members that such acts of wanton killing cannot be tolerated.

 

Useful Restitution

But surely, some argue, there must be other methods which are comparable to the denunciatory effect, and which spares the killer's life. Many killers are indeed remorseful and repentant, and many of them can make useful restitution and compensation to society and, its victims, To denounce the killer by killing him seems to be a straightforward case of retribution, and nothing else. In taking the killer's life, society is merely doing what is has condemned.

Many writers have argued that capital punishment is the most premeditated of murders. Its only equivalent' s that of the criminal who confines his victim, and then tells him what day henceforth he will die. Dostoevsky, the great Russian writer, put it lucidly and perceptively; he wrote in The Idiot of the feeling of an approaching execution: .

But the chief and worst pain may not be in the bodily suffering but in one's knowing for certain that in

an hour, and then min­utes, and then in half a minute, and then now, at the very moment, the soul

will leave the body and that one will cease to be a man and that that's bound to happen; the worst

part of it is that it's certain ... To kill for murder is a punishment  incomparably worse than the crime

itself. Murder by legal sentence is immeasurably more terrible than murder by brigands.

Anyone murdered by brigands, whose throat is cut at night in a wood, or something of that sort, must

 surely hope to escape till the very last minute ... but in the other case [execution] all that last hope

 which makes dying ten times as easy, is taken away for certain. There is the sentence, and the

whole awful torture lies in the fact that there is certainly no escape, and there is no torture in the

 world more terrible ...

None of us, hopefully, agree with torture! If Dostoevsky is correct that 'there is no torture in the world more terrible' than capital punishment. can we still support it?

 

 

 

QUESTIONS

1          Is it wise and proper for Parliament to make a decision which is against the wishes of the majority of the people?

2.         Reason against emotion ‑ which should conquer?

3.         Do you agree that capital punishment is the most premeditated of murders?

 

Further References

1.         A. Koestler and C. H. Rolph, Hanged by the Neck (Penguin Books 1961).

2.         Bedau and Pierce, eds., Capital Punishment in the United States (1976).

3.         W. Bowers, Executions in America (Lexington Books 1974).

4.         T. Sellin, The Death Penalty (The American Law Institute, 1959).

5.         G. H. Gottlieb, 'Capital Punishment', 15 Crime'and Delinquency (1969), pp. 1‑20.

6.         J. Barzuri, 'In Favour of Capital Punishment', 15 Crime and Delinquency 21(1969).

 

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12        IS HANGING REALLY A DETERRENT?

 

Nowadays, the main argument in support of the death penalty is that it is a deterrent to murder. The feelings run very strong in every community that the death penalty reduces murder and con­sequently, abolition of it would increase the number of murders. Has the evidence supported these sentiments?

Many investigations have been conducted to test whether or not capital punishment deters. The overwhelming result is that there is no relationship between murders and the death penalty. This is a stunning conclusion. Because, if the death penalty does not deter then why does society retain it?

Some of the simpler researches can be discussed. For example, New Zealand has abolished and returned the death penalty on several occasions since the fifties. Examinations of the rate'of murder and the number of executions show no real or apparent correlation. If hanging ‑ the method of capital punishment adopted in New Zealand ‑ deters, then during the periods in which hanging exists the murder rate should go down; and when there is no hanging the murder rate should go up. But no such direct relationship between hanging and the murder rate existed. Similar results have occurred in many states of America which have abolished and returned capital punishment.

Another method, used in America, involved the examination of states with similar population, socio‑economic factors, legal proceedings, geography, etc.; one state has capital punishment while the other does not or makes less use of capital punishment. Is there a variation in the number of murders? Surprisingly, there is no variation!

The homicide rate for the following four states which made use of the death penalty in 1960 ‑ New York 2.9 (murders per 100,000 of population), California 3.4, Texas 8.77, and Arkansas 8.6 ‑ did not differ significantly from four other states which did not use the death penalty ‑ Pennsylvania 2.8, Oregon 2.2, Oklahoma 7.5, and Missouri 4.6, respectively. The conclusion drawn by the notable criminologist Thorsten Sellin is that 'The presence of the death penalty ‑in law or practice‑ does not influence death rates'.

These simple methods discussed above would be strong evidence to show that capital punishment  does not deter. But the retentionists are not to be deterred! And their fervent support for capital punishment is not easily dampened.  Retentionists, or those who favour retaining capital punishment, argue that these researchers are biased. They are done by people who are abolitionists, and their data is fabricated, etc. Those retentionists who see the validity of the no deterrence argument switch to another camp, such as that of those who follow the line of denunciation, but the hardliners suggest other possibilities.

They, the hard‑line retentionists, argue that researchers only know of those murders which actually occurred. They suggest, even emphasize, that many others, innumerable murders, might have occurred but for the presence of the death penalty. They passionately espouse the view that these murders do not occur because, at the last moment, the potential offender is enlightened by the consequence of his action; he stops because he does not want to be hanged ‑ hanging is therefore a deterrent!

Abolitionists can never answer that argument! The retentionists have pulled him into the philosophical abyss; he cannot discern, and will never know, how many murders have been so avoided.

Retentionists further stress that murderers are dangerous people; they are prone to violence and heinous crimes. To hang them would insure that they will never again kill another human being on the face of this earth.

Again the abolitionists cannot answer that argument, but he can bring figures and data to show that murderers are, in fact, one‑time offenders. The majority, the overwhelming majority, of murderers have no previous conviction; they probably appeared before the court for the first time ‑ on the murder charge. Furthermore, in countries which do not have capital punishment, there is abundant evidence to show that numerous convicted murderers have served their time in prison as model prisoners and have been released into the community, where the circumstances so justify. Admittedly, some of these men have offended again. But only a minute percentage, much less than one percent, of released murderers around the world have committed murder again.

The abolitionists therefore argue that murderers are the best risks of all inmates. To perpetrate a barbaric, callous, and vicious penalty on the basis of their being dangerous is unwarranted and cannot be justified on the grounds of deterrence. Additionally, it has never been shown that the death penalty is a better deterrent. than life imprisonment. Accordingly, to continue the death penalty is a resort to and a legitimization of extreme violence by the State.

Abolitionists can also bring evidence to show that most murders are committed on the spur of the moment, between friends, neighbours, relatives, etc. The layman's view of the murderer, derived from detective stories and television and screen killings in which there is premeditation and prior planning, is simply not true of real life murderers. The vast majority of murderers would not know, when they shaved in the morning,  that by bedtime they would be responsible for a killing.

Murders tend to be emotional affairs in which great and uncontrollable passion is generated. There is no thought of the consequences, nor the penalty, nor even the possible forgiveness of the victim. It is the ungovernable passion which knows neither reason nor control. In these moments, the death penalty has not deterred, and never will. Prison Warden Duffy who has witnessed 90 execu­tions recently said, 'I have yet to meet the man who let the thought of the gas chamber stop him from committing murder. People kill on impulse and the penalty is of no concern at the moment the impulse comes'.

Finally, the abolitionists will point to Charles Dickens' description of his study of hanging and his profound warning in the last century. Dickens said in a letter to the Daily News in 1846:

I have stated my belief that the study of such scenes leads to the disregard of human life,

AND TO MURDER. Referring since that expression of opinion to the very last trial for murder

in London, I have made inquiry, and am assured that the youth now under sentence of death in

Newgate for the murder of his master ... WAS A VIGILANT SPECTATOR OF THE THREE

LAST PUBLIC EXECUTIONS IN THIS CITY.

Accordingly, Dickens repeated the warnings of Robespierre before the French National Assembly:

…in taking human life, and in displaying before the eyes of the people scenes of cruelty and bodies of murdered

men, the law awakened ferocious prejudices, which gave birth to a long  and growing train of its kind.

George Bernard Shaw poignantly advised us that 'Murder and capital punishment are not opposites that cancel one another, but similars that breed their own kind.'

The abolitionists therefore contend that when the State engages in wanton violence, it encourages similar violence; it does not deter it. To this argument, the retentionists seek an adjournment to allow them to collect further evidence to support their case.

QUESTIONS

1.         In the light of the discussion, do you believe that murderers have a propensity to kill?

2.         Do you believe hanging encourages similar violence?

3.         Are murderers any more dangerous and wicked than robbers and rapists?

Further References

1.         1. Ehrlich, 'The Deterrent Effect of Capital Punishment: A Question of Life and Death',

63 Amer. Economic Rev. (1973).

2.         W. Bowers and G. Pierce, 'The Illusion of Deterrence in Isaac Ehrlich's Research on

Capital Punishment, 8 5 Yale L. J. 187 (197 5).

3.         Deterrence and Incapacitation: Estimating the Effects of 0iminal Sanctions on Crime Rates.

4.         Bedau, 'The Death Penalty and Gary Gilmore', Hastings Ctr. Rep. 5 (February 1977).

 


 

13.       THE SANTITY OF LIFE

Retentionists and abolitionists readily accept that the right to life is the ultimate of all human rights.  From this fundamental right all other human rights flow; without life, all other rights are meaningless.  Therefore the respect, recognition and reverence for human lives constitute the essence of human society.  Both sides have extremely strong arguments in their support for the sanctity of life, and the depths of these arguments will be seen in the following discussion.

 

Retentionists are firmly of the view that human life should be respected.  They cherish life, like the abolitionists; but where does the recognition of the sanctity of life begin? Why start talking about the right to life after the murder?  Let us talk about the right to life when the killer’s victim is alive.

 

Did the killer in his passionate fury first recognise his victim’s right to live?  He did not give his timorous victim the ghost of a chance.  His total disrespect and disregard for life caused him to kill.  He did not hear the victim’s plea, nor genuflect to the altar of life.  When he should have paid respect to life he abstained.  How then can be turn about and in his plea for mercy and forgiveness request that humn life he respected and that he should be given a chance?

 

Ought society to honour the wanton, vicious and ferocious killer’s petition for compassion?  The retentionists’ answer is an uncompromising and unconditional no!  The killer has extinguished his right to live when he committed, and was convicted for, the hideous and gruesome crime of murder.  The State therefore, in its collective might, ought to hang him, and equal the score with his victim.

 

Abolitionists, on the other hand, contend that is it morally wrong to kill another human being and this is undeniable whether or not the killing is done by a private individual or by the State.  Abolitionists invariably join the retentionists in their condemnation of a murder.  They do not condone the killer’s grisly crime, and for it he ought to be punished.  But abolitionists view capital punishment as outside the realm of what is morally justified.

 

They fervently argue that to kill the killer is to denigrate to whole society.  Yes, the killer is wrong but should society join him in doing the very act it has condemned? The abolitionists ardently hold that capital punishment is merely taking the killer's life, because it serves no useful purpose! Accordingly, in so doing, the society debases itself and inevitably sinks its morals to that of the criminal. In essence, 'two wrongs do not make a right'.

 

The Religious Arguments

Alas, the retentionists opine, we are talking about morals! Let us therefore see what the Holy Book says. So in their meticulous search of the Bible, the retentionists discover some powerful pas­sages which adequately support their arguments.

Genesis 9:6 says: 'Whoso sheddeth man's blood, by man shall his blood be shed: for in the image of God made he man'. This passage, retentionists believe, unquestionably gives man the right to hang, and they embrace it as their main weapon from the scriptures. They further direct attention to the other supporting passages: 'He that smiteth a man, so that he die shall be surely put to death ... But if a man comes presumptuously upon his neighbour to slay him with guile; thou shall take him from mine altar, that he may die'. (Exodus 21:12,14)

'Who killeth any person, the murderer shall be put to death by the mouth of witnesses ... Moreover ye shall take no satisfaction for the life of a murderer, which is guilty of death: but he shall be surely put to death . . . and the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it'. (Numbers 35:30,31,33)

Retentionists therefore delightedly conclude that God in these passages gave man the inalienable right to take the murderer's life. Thus, they cont end, the argument that it is morally wrong to take human life, in any circurnstames, is without basis or substance.

Abolitionists reason that even though the Old Testament gave man the right to take the murderer's life, the New Testament removed that right. The whole concept of Christian faith is based on love and redemption, rather than on the Mosaic law of an eye for an eye, and a tooth for a tooth! On the basis of the New Testament teaching, the use of the death penalty runs counter to the system of justice contemplated by our Lord Jesus Christ as evidenced by the Sermon on the Mount (see St. Matthew 5 and St. Luke 6). Bishop John Wesley Lord puts it succinctly.

 

 

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A Christian view of punishment must look beyond correction to redemption. It is our Christian faith that

redemption by the grace of God is open to  Every repentant sinner, and that, it is the duty of every

Christian to bring others by every available means the challenge and opportunity of a new and

better life. We believe that under these circumstances only God has the right to terminate life.

 

Saint Augustine, the great Christian martyr, was also against capital punishment. In referring to certain heinous murders of Christians, he wrote:

We do not wish to have the sufferings of the servants of God avenged by the infliction of precisely

similar injuries in the way of retaliation.

Not, of course, that we object to the removal from these wicked men of the liberty to perpetrate further

crimes, but our desire is rather that justice be satisfied without the taking of their lives or the

maiming of their bodies in any particular; and that, by such coercive measures as may be in

accordance with the laws, they be drawn from their insane frenzy to the quietness of men in

their sound judgment, or compelled to give up mischievous violence and betake themselves

to some useful labour.

The retentionists and the abolitionists do indeed have extremely strong arguments. We ought to consider and to reflect on them. Whom do you support?

 

QUESTIONS

1.         How strong is the argument that a person who has killed extinguishes his right to live?

2.         Do you agree that to kill the killer denigrates the whole society?

3.         Assess the religious arguments.

 

Further References

1.         Willel W. G. Reitzer, Answering the Arguments of the Capital Punishment Abolitionists (Universal Christian Publications, 1978), in Hearings Before the Committee on the Judiciary, United States Senate, Ninety‑Fifth Congress, Second Session, April 27 and May 11, 1978, pp. 173‑198. (This is a very useful document to read, especially for the retentionists.)

2          Burrill,  'The Immorality of the Death Penalty', Christian Century, January 24, 1973, p. 90.

3.         Durick, 'Death Penalty Unchristian', National Catholic Reporter, March 16,1972,p.l.

 

 

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14        THE IMAGE OF THE DANGEROUS KILLER

Many persons who support capital punishment invariably focus their minds on the dangerous killers. Indeed, there is a sub‑group of retentionists who consider it repetitious to speak of 'dangerous killers', because they say, all killers are dangerous. Once a person has killed he is deemed dangerous in spite of the evidence to the contrary.

Retentionists, clearly, see killers as incorrigible, violent criminals. There is absolutely no hope of reforming these men. They are, and will constitute, a danger to society as long as they live. The obvious and inevitable course for such men is therefore to rely on their conviction for murder and remove thern from our midst.

The argument used by retentionists is one which sees the death penalty as a protective measure. Certain criminals will never be recovered by society, and once they remain alive there is a possibility, however remote, that they will kill again.

Abolitionists do not disagree with the retentionists on the effectiveness of the death penalty as a protective measure. They retort with solemn humaneness that the life of the killer can still be spared by imposing life imprisonment under strict security. They argue that life imprisonment is an entirely adequate protective measure.

Retentionists do not accept that life imprisonment is a sufficient safeguard. They claim that these men will remain potentially dangerous to society. And even if they are kept in prison for the remainder of their lives, they continue to pose a danger to prison officials and to other inmates. The possibility also that they might escape cannot reasonably be ignored. In these circumstances, the retentionists reason, the necessity for the death penalty is evident.

Abolitionists retort, however, that it is logically unjustifiable to hang all convicted murderers because there is a strong possibility that some may kill again. We do not hang men because they express the desire to kill their wives, nor even those who attempted to kill. Neither do we hang children who kill, nor motorists who kill on the motor‑way, nor numerous potential murderers. If we hang them or imprison them for life, we would certainly avoid some murders; but to do so would be unacceptable even to the retentionists

 

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The abolitionists' argument was most forcefully expounded by the then Prime Minister of Canada, Pierre Trudeau, during the second reading of the Bill to Abolish Capital Punishment in 1976.   Mr. Trudeau said,

I know there are those who say that execution is justified because it prevents a murderer from

ever again committing the same crime. It certainly does. But if you rely on that reasoning, you are

killing a man, not because his death deter others from following in his footsteps, but because of

what he might possibly do at some future time. To justify such preventive execution, there would

have to be some reasonable grounds for believing that a convicted murderer, if released into

society, would murder again. In fact, the probability lies strongly in the other direction.

 

We know of only four people who have been found guilty of murder by a Canadian Court, and

convicted of murder a second time. In order to be absolutely sure that no murderer would

murder again, we would have to take the lives of all persons convicted of either first or second

degree murder, even though the probability is that an infinitesimal percentage of them would

ever commit murder again if allowed to live. That's an unacceptably high price to pay in human

lives for a sense of security, insignificantly greater than we have now. I might ask those who

would execute a person to prevent a future murder how they could logically avoid advocating

the execution of mentally ill people who are found to have homicidal tendencies.

 

Clearly then, the ultimate reason for desiring to hang the dangerous killer lies elsewhere. Pierre Trudeau continued:

Well, you may say, let's execute the murderer for the crime he has committed. Let's take a life for

a life. Let's remove a savage animal from the human race. I do not deny that society has the right

to punish a criminal, and t he right to make the punishment fit the crime, but to kill a man for

punishment alone is an act of revenge. Nothing else . . .

 

My primary concern here is not compassion for the murderer. My concern is for the society

which adopts vengeance as an acceptable motive for its collective behaviour. If we make that

choice, we will snuff out  some of that boundless hope and confidence in ourselves and other people

which has marked our maturing as a free people.

 

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Pierre Trudeau spoke to the Canadian people, but his words ring as loud as ever in the Caribbean. Very few politicians are courageous and brave enough to ignore the instinctive feeling of their constituency, to vote against capital punishment. But politicians, like Pierre Trudeau and other eminent men, who have had to cast a vote for life or death, recognise that they are not delegates of the people but their representatives. The duties of politicians are to lead and to direct the people, and when they make their decisions in parliament and elsewhere they must remember that. That is why Members of Parliament should acquaint themselves with the material on Capital Punishment and vote according to their own conscience rather than according to public opinion (see, e.g., William Whitelaw in the House of Commons Debate 1978).

Numerous studies in America positively support Pierre Trudeau's data on convicted murderers. The state of New York paroled 63 first degree murderers between 1930 and 1961, of which 61 had been sentenced to death but were fortunate enough to have their sentence commuted. Up to the end of 1962, only one of these murderers had committed another crime (burglary). The rate of violation for all parolees in the same period was 41 percent (see Stanton, 'Murderers on Parole', 15 Crime and Delinquency 149 (1969).

In California, 342 first degree murderers were paroled between 1945 and 1954; only 2.6 percent committed new felonies. In Ohio, a legislative report concluded that 'the 169 first degree life‑sentence prisoners paroled since 1945 have compiled the highest success rate of any offense group'. Of 370 released life prisoners in Wisconsin, only 18 committed parole violations. In Michigan, of 164 paroled first degree murderers between 1930 and 1959, only four violated parole and only one committed another felony. When studies in nine different states were grouped, it was found that of 1293 first degree murder parolees, only 71 violated their parole, and only one committed a second murder.

After examining these figures the Hawaii Coalition Against Capital Punishment concluded that:

Since the rate of repeat killing is so small, one in 1293 for the 9 states studied, and since no

one could predict who would kill again, these states would have had to execute 1293 first time

murderers to save the one life which was taken ... This would be a tragic waste of those who

were rehabilitated and now lead useful lives with no danger to anyone else.

 (See Position Paper 4, page 271, Hearings Before the Committee on the Judiciary, United States Senate, Ninety‑Fifth Congress (Second Session, April 27 and May 11, 1978)).

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In Barbados, prison officials know of no convicted murderer whose sentence was commuted to life imprisonment, who was subsequently released from prison, and who has been convicted of another crime. Other West Indian territories have a similar record, even though the data is not available.

It becomes crystal clear that murderers are the best risks in prison and on release. The notion that they are incorrigible killers is a mistaken one.

We do not deny that there are a few dangerous and incorrigible killers and accordingly the protective measure of capital punishment to deal with them cannot be easily ignored. But the ultimate question must surely be whether or not we are so socially bankrupt that we cannot devise a humane penal philosophy to deal with dangerous men.

 

QUESTIONS

1.         What are the arguments for and against the death penalty as a protective measure?

2.         Should vengeance be a motive for society's actions?

 

Further References

1.         Wolfing, ed. Studies in Homicide (1967).

2.         W. C. Reckless, The Use of the Death Penalty, 15 Crime and Delinquency 43(1969).

3.         Massachusetts Department of Correction, An Analysis of Convicted

Murderers in Massachusetts: 1943‑1966 (1968).

4.         0hio Legislative Service Commission, Capital Punishment (1961).

 

 

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15        PUNISHING THE INNOCENT

The English‑speaking Caribbean inherited an admirable system of criminal justice from England. Its underlying feature, that all men should be tried by their peers, represent the most outstanding system of justice anywhere in the world. Its main defect, and one which is not uncommon in other aspects of human society, is that human beings are asked to be the arbiters of the proceedings.

Whenever any human decision is made there is always the possibility of an error. We are not infallible, and there are repeated cases in the history of man where an error of judgment has caused grave disasters such as defeat in war, loss of an empire, and so on. In the pursuit of justice, there are numerous cases of human error, and innocent men have suffered.

Abolitionists recognise that errors will be made; so do retentionists.  Retentionists nevertheless feel that it is the inevitable price that we have to pay to provide protective measures against dangerous men. Abolitionists retort that when an innocent man is hanged, the state becomes in a collective sense, a murderer.

Abolitionists argue that it is not so much the error of judgment, because in human affairs this will occur, but it is the finality and irreversible nature of the death penalty.  In 1791, Robespierre as a member of the National Assembly of France uttered these prophetic words:

Listen to the voice of Justice and of Reason. It  tells us that human judgments are never so certain

as to permit  society to kill a human being judged by other human beings . . . Why deprive yourselves

of any chance to redeem such errors?  Why condemn yourselves to helplessness when faced with

persecuted innocence...

 

Quoted by Otto Pollak in Capital Punishment, Thorsten Sellin, ed. (Harper & Row, 1967).

 

Three years later, on July 27, 1794, Robespierre, as leader of the French Revolution, was arrested, and executed the following morning. Today, he is a martyr of the French people.

Zulfikar Ali Bhutto, admittedly one of the most ruthless leaders Pakistan ever possessed, was found guilty on a majority verdict of four judges to three. The split in the decision was based on provincial feelings. He was executed last year, 1979. His final words as he faced the hangman were, 'Lord have mercy on me. I am innocent'.

 

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And let us not forget that Jesus Christ was persecuted and crucified by the Jews. He was innocent of the charges. In his dying moments He called out to Heaven, 'Father, forgive them, for they know not what they do.'

Abolitionists feel therefore that a penalty that extinguishes life ought not to be within the realms of a system administered by human beings. Whereas other penalties allow some restitution if an error is made, the death penalty cannot be undone. And, tragically, effors have occurred. Many writers have documented several cases in which an innocent man has been found guilty, and thereafter executed.

The following cases are taken from Doval MacNamara's article 'Convicting the Innocent', Crime and Delinquency, Vol. 15, No. 1, 1969.

 

In Georgia, James Foster, twice identified by the widow of Charles Drake as the slayer of her

husband in June 1956, was convicted and sentenced to death and was released in 1958 when

a former police officer confessed the murderer.

 

In California in 1957, John Rexinger was twice identified by the victim of a torture‑rape; he was

released a week later when the actual rapist, eight inches shorter in height, confessed. In another

California case, John Fry confessed to the murder of his commonlaw wife. He was pardoned

by Governor Edmund Brown after another man was found to be the real murderer.

 

Governor Edmund Muskie of Maine, writing to Trevor Thomas on March 20, 1968, stated that the

hanging of an innocent man had induced Maine to abolish the death penalty. Rhode Island outlawed

capital punishment under similar circumstances more than a century ago.

 

The New York Times (September 20, 1975, at p. 1) reports how two men, after nine years under the sentence of death, were pardoned by the Governor of Florida in 1975 when it was discovered that they had been wrongly convicted ‑ the real killer had come forward.

In England, Timothy John Evans was found guilty of murder, and hanged in 1949. Studies later showed that Timothy Evans was not the murderer.  He was completely innocent.  The real murderer, John Christie, the ‘Notting Hill Monster’, had been a witness for the prosecution of Evans.

 

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Sixteen years later, on October 18, 1966, the error was officially recognised in the House of Commons. When the Home Secretary Roy Jenkins announced the Royal Pardon, the members cheered; at the same time, Timothy John Evans probably turned in his grave. This case, more than any other reason, prompted the House of Commons to abolish the death penalty. The finality and irreversible nature of the death penalty had been shown.

The Marquis de Lafayette, after observing the danger that an innocent man might be executed, said, 'I shall ask for the abolition of the penalty of death until I have the infallibility of human judgment demonstrated to me.'

In previous articles, we tried to show that legal concepts tend to be amorphous and elusive. Even where the man who actually killed is in the dock, the jury, through mistake or lack of understanding, may fail to appreciate the defence of insanity, self‑defence, accident, provocation, duress, and lack of premeditation in the offence. The jury may even be influenced by the lawyer who defended the accused: 'If Mr. X or Y is defending him, then he can't be guilty.' The whole matter of guilty or not guilty then becomes a 'lottery of justice'.

Thorsten Sellin summed up the possibility of error in the judicial process when he wrote:

Human justice can never be infallible. No matter how conscientiously courts operate, there still exists

a possibility that an innocent person may, due to a combination of circumstances that defeat

justice, be sentenced to death and even executed. That possibility is msde abundantly clear when

one considers the many instances in which innocent persons have been saved from the extreme

penalty either by the last minute discovery of new evidence or by a commutation followed, perhaps

after many years in prison, by the discovery of the real criminal.

But, even when the killer's torment ends, mothers and children are the innocent ones whose agony never fades. In The Last Days of the Condemned, Victor Hugo wrote,

The alternatives are these; first, the man you destroy is without family, relations, or friends in the world.

In this case, he has received neither education nor instruction; no care has been bestowed either on his

mind or heart; then, by what right would you kill this miserable orphan? You punish him because his

infancy trailed on the ground, without stem, or support: you make him pay the penalty of the isolated

position in which you left him! No one taught him to know what he was doing; this man lived in

ignorance: the fault was in his destiny, not himself. You destroy one who is innocent.

Or secondly;‑the man has a family; and then do you think the fatal stroke wounds him alone? - that his

father, his mother, or his children will not suffer by it? In killing him, you vitally injure all his family:

and thus again you punish the innocent.

Blind and ill-directed penalty on whatever side it turns, strikes the innocent!

 

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QUESTIONS

1 .        It is better that nine guilty men should go free than for one innocent man to be found guilty and punished. Discuss.

2.         Do you agree with the retentionists' view that the occasional error is the inevitable price we have to pay for protecting society? Would it not be better to keep all men alive, in prison, in case an error is discovered and thus an innocent man can be freed?

3.         What form of restitution would you proffer to the family of an innocent man who is hanged?

 

Further References

1.         Black, Capital Punishment:  The Inevitability of Caprice and Mistake (1974).

2.         Bedau, 'Murders, Errors of Justice and Capital Punishment', in Bedau, ed. The Death Penalty in America (Anchor Books. 1967), pp. 434‑ 52.

3.         L. Hale, Hanged in Error (Penguin Books, 196 1).

4.         E. Radin, The Innocents (Wm. Morrow & Co, 1964).

 


 

16         FOR WHOM THE HANGMAN WAITS

'During my experience as Governor of Ohio', said Governor Di Salle during testimony before a United States Subcommittee on the Death Penalty, March‑July 1968, 'I found that the men in death row had one thing in common; they were penniless. There were other common denominators ‑ low mental capacity, little or no education, few friends, broken homes ‑ but the fact that they had no money was a principal factor in their being condemned to death. I have never known of a person of means to go to the chair ... It is usually the poor, the illiterate, the underprivileged, the member of the minority group ‑ the man who because he is without means, and is defended by a court‑appointed attorney ‑ who becomes society's sacrificial lamb . . .'

The reason why mostly poor persons go to the gallows is that they are undoubtedly responsible for most of the murders. Killers on deathrow, anywhere ‑ whether in Trinidad, Jamaica, Barbados, or outside the Caribbean ‑ tend to come from low socio‑economic backgrounds. What are the reasons for this state of affairs?

The social influence of the neighbourhood in which these men grew may contribute significantly to the final act of murder. The tension, prevalence of violence, possession of dangerous weapons, and the sense of social neglect and resentment which these men experienced in their neighbourhood are responsible singularly or collectively for their behaviour. Their background and the social influence are of no consequence, however; it is never considered at the trial, during sentence, nor in a plea for mercy. So it appears the poor and underprivileged have only themselves and their destiny to blame for the gruesome crime of murder. Society is blameless.

But many studies have shown that there are other factors, related to socio‑economic conditions, which determine who go to the gallows.

A Guyanese who can afford the expense and is able to persuade Sir Lionel Luckhoo to defend him on a charge of murder is quite likely to be acquitted. Sir Lionel's record is impeccable. He is a legend. The presence of such big‑time lawyers has a dramatic effect on the minds of jurors. They seem to think that if these 'super-lawyers' are defending the man in the dock then he must be innocent. Jurors probably reason unconsciously that these super‑lawyers are not going to risk their reputation and prestige to defend a guilty man..

 

 

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Several cases in Barbados in which apparently guilty men go free seem to justify the above argument. The men in these cases were defended by super‑lawyers, who used their personality and courtroom style to bring about the result. The antics, drama, and even tears of the emotional defence lawyer can hardly be ignored and rebuffed by twelve jurors; they, the jurors, are only human, and can easily be persuaded, if only the right tactics are used. The converse is true. The killer who is poor and has to accept a legal aid lawyer will rarely have that sympathy from the jury. The legal aid lawyer is unlikely to be a Queen's Counsel; he is more likely to be a young and enthusiastic lawyer who lacks the experience, strategies, and dramatic antics of the seasoned campaigner.

Where is justice, then, if the final outcome depends, as it probably does, on who your defence lawyer is? Amnesty International, which is presently campaigning for the total abolition of the death penalty, sums up the above in the following passage:

When the ability to obtain good legal representation becomes one of the most important factors in

determining the outcome of a trial, questions of race, class and poverty can have a considerable

effect upon the administration of justice. The wealthy, the politically well‑connected and members

of dominant racial and religious groups are far less likely to be sentenced to death and even less

likely to be executed for offences of comparable severity than are the poor, supporters of the political

opposition and members of unpopular racial or religious groups.

Racial discrimination in many jurisdictions, especially the United States of America, is another important factor in determining who gets the death penalty. In Florida, where the death penalty exists for rape, a study of rape cases between 1940 and 1964 showed that only 5% of whites who were convicted for raping white victims were sentenced to death while 54% of the blacks found guilty of raping white victims were so sentenced (Wolfgang and Riedel, 1975). A review of homicide cases over a ten‑year period in ten North Carolina counties found that 37% of the blacks convicted of killing whites were sentenced to death while no white defendants received death sentences for killing blacks (Garfinkel, 1949).

 

 

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Even after sentencing, racial discrimination apparently continued. The possibility for commutation is reduced because of race.

In Ohio, over a ten‑year period, 78% of blacks sentenced to death were actually executed while

only 51% of whites were. A study of executions in the southern states showed that of those sentenced

to death, blacks were far more likely than whites actually to be executed; for instance in North Carolina

only  35 percent of whites sentenced to death were finally executed,  while the comparable figure for

blacks was 67%. (The Washington Research Project, 1971).

Furthermore, it is clear that juries are influenced by the job status and economic condition of the defendants in a murder case. In a review of 178 first‑degree murder penalty decisions by California juries during the period 1958 to 1966, it was found that of 157 defendants who held blue collar jobs, 42% were sentenced to death while of the 21 defendants who held white collar jobs only 1 (5%) received the death penalty. 67% of those with 'low job stability' were sentenced to death while 39% of those with 'stable job histories' were given the death penalty (see generally, 21 Stanford Law Review 1297 (1966) and the Civil Rights Committee report in THE RECORD of the Association of the Bar of the City of New York, Volume 32, No. 4).

It would generally be granted that disparity based on factors other than the characteristics of the

defendant and the nature of his crime is unequal justice contrary to the spirit and letter of the

law. Such discrimination operates in the application of the death penalty.

 

From 1930 to 1961, 3,766 persons were executed in the United States. Of these, 1,695 (45 percent) were

 whites and 2,030 (54 percent) were negroes, who constitute only 10.5 percent of the population.

The presumption is that bias operates in this aspect of criminal law administration as it does in others.

 

(Policy Statement on Capital Punishment, Board of Trustees, National Council on Crime and Delinquency,

April 1964)

 

Similar studies in West Indian jurisdictions would probably show similar results, even though class status, socio‑economic influence, and minority interests would also be significant factors.

In every country of the world, history shows that the death penalty has been unjustly imposed. It bears unequally and irrevocably on the poor, on minorities, and on oppressed groups within the population. For whom the hangman waits?  He waits for the mental defective, the incompetent, the weak, the ignorant, and society's forgotten ones. Where is justice, when we know that the hangman waits, not for all killers but only for the underprivileged, who are society's sacrificial lambs'?

 

 

QUESTIONS

1.         Is it true that the underprivileged are 'society's sacrificial lambs'?

2.         How blameworthy is the society for the actions of its citizen?

3.         To what degree does the choice of lawyers influence the outcorne of a trial?

4.         Do you believe that the quotation taken from Governor Di Salle's testimony applies to your territory?

 

Further References

I .         Riedel, 'Discrimination in the Imposition of the Death Penalty: A Comparison of the Characteristics of Offenders Sentenced Pre‑Furman and Post-Furman', 49 Temple L. Q. (1976).

2.         Wolfgang and Riedel, 'Race, Judicial Discretion, and the Death Penalty', 4077 The Annals 119 (1973).

3.         Wolfgang,  Pardon and Commutation, 38 Prison J. (1959).

4.         Marshall, Parliament and the Prerogative of Mercy, 8 Pub. L. 1961 (England).

5.         Di Salle, Comments on Capital Punishment and Clemency, 25 Ohio State L.J. 71 (1964).

 

 

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17        LAST DAYS OF THE CONDEMNED

From the moment the jury finds a verdict of guilty of murder, the life of the murderer is at stake. The presiding judge has no alternative; he has to sentence the convicted killer to death. With everyone standing in silence, the judge in his most solemn tones will ask the murderer if he has anything to say; he pauses to allow the convicted man his last words; then he will don his black cap and pronounce the final words of the court. The words are: 'You have been found guilty of the crime of murder. The sentence of the Court is that you be taken from this place to the place whence you came; that you be there kept until the time of execution; that you there suffer death by hanging, and that your body be buried within the precincts of the jail where you last shall have been confined. And may the Lord have mercy on your soul.'

The condemned man is immediately whisked off to jail, placed in a high‑security cell on what is known as deathrow, and from there he can make his final desperate pleas for mercy and/or pass his remaining days before he leaves the world of the living. Albert Camus (in Reflections on the Guillotine) describing the anguish of the condemned wrote: 'He hopes by day and despairs of it by night. As the weeks pass, hope and despair increase and become equally unbearable. According to all accounts, the colour of the skin changes, fear acting like an acid.'

In the final months, the condemned man makes frantic plans to acquire money and support from his family and friends. He wants the best lawyers to appear for him at his appeal. He wants friends to rally for him and to beseech the Governor General to grant him a reprieve. But, too often, there are no friends or relatives. And even when there are others willing to assist, the influence and prestige of their petition lack sufficient persuasion. So even after conviction, subtle discrimination continues.

For the well‑to‑do, his family will use all the resources at their command to get the best lawyers in order to pursue an acquittal or a reduction of the conviction to manslaughter. Because of the financial resources available, the man of substance can have his case go as high as the Privy Council, with a battery of super‑lawyers to assist him. For the underprivileged there is merely the hope that their cases will go to the Court of Appeal (usually, there is an appeal) and, possibly, to the Privy Council, the highest judicial body.

 

 

 

 

When all legal channels fail, the only remaining course open to the condemned is to ask the Governor General to exercise his prerogative of mercy; the Governor General will do so on the advice of his local privy council. The local privy council, before advising the Governor General, generally considers all the relevant features of the murder, the note on the case submitted by the presiding judge, and the petitions from persons and associations. Once again, the man of means,, influence, and status in the society wifl attract weighty petitions to aid his plea for life. The penniless, the friendless, and the underprivileged are rarely, if ever, able to summon worthy petitions to successfully obtain a reprieve.

The Washington Research Project ( 1971) noted:

A study of commutations in Pennsylvania between 1914 and 1948 revealed that whites were nearly

twice as likely as blacks to have their sentences commuted. A similar study in New Jersey found

almost precisely the same pattern ‑ whites were twice as likely as blacks to have death sentences

commuted. In Ohio, over a ten‑year period, seventy‑eight percent of blacks sentenced to death

were actually executed, while only fifty‑one percept of whites were.

As the weeks pass, he suffers unbearable torture. Many go insane. Others become vegetables. Warden Duffy, in the San Quentin Story, discusses the case of Edwin Walker:

I shook Walker gently and spoke to him. He shrank from my touch and stared at me, but there

was no recognition in his eyes. He seemed to be in a state of profound shock, his lips moved but

made no sound.

.           ….. The next morning, with the official witnesses waiting out side the gas chamber and the

executioner standing by, seven consulting psychiatrists crowded into the little cell to look at a

broken shell of a man. Walker was mumbling to himself, crawling like a whipped dog on the floor,

and hiding his head under a blanket. At intervals he burst into tears and jumped wildly at the slightest

touch. 'The doctors were unable to make him talk, and at 10 a.m. the hour set for Walker's death,

they signed a statement declaring lie had gone insane ...

 

 

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For the condemned who can survive the psychological trauma, the time on deathrow brings a new meaning to their life. They look at themselves seriously for the first time. They learn to read and write, and to understand the world better. They become different persons because of their situation.

The remarkable case of Caryl Chessman in the U.S.A. must not be forgotten. By perseverance,, unrelenting belief in his own innocence, and self education, Chessman was able to keep his case going for 11 years. His perseverance did not save him from the death penalty. Chessman was executed after nearly 12 years on deathrow. Others do not have the opportunity or the will to fight the system for so long. They stand firm and bold to the end,  but they capitulate when all is lost.

Stanley Abbott, on the night before he was hanged, 28th April 1979, wrote the following chilling letter to Michael Castagne, ,Chairman of the Barbados Chapter of Amnesty International.

After all is said and done it amounted to the sarne. This afternoon I was told that my plea was rejected

and that in the morning I must die. Yes Sir, today for tomorrow.

However, my dear mother was told and she visited me. She sure is hurt. But, nevertheless, held herself

errect. I am sure proud of her.

I wish you to know Sir, that I am as ready as can be. That is, I, have made my peace with God and man.

Even as I pen this letter I feel close to our Lord. By the way, I am R.C. but I have requested the E.C.

priest with me along with my own. The good man's name is Father Eric Mahabir. He has been ever

so kind to me. I remember well when I was sick in hospital way back in '74, I spent 10 weeks there,

almost everyday the good man dropped in to try [to] cheer me up. He is ever so gentle.

Sir, I know how very hurt you must be, but please don't worry too much over me ‑ you push on, ever

forward. I shall be well taken care of where I shall be going. That is, in Heaven, where only the

beautiful dwell. That's where I shall be soon going, come morning.

I have written as many people as I can. There are about three more I would have loved to write but

I ran out of paper. However, I do hope they understand.

Well, Sir, this is au‑voir! At least for now. I am not afraid to meet my Maker. Only a little sad that

I have never been believed.

God knows best. I am well with God, be assured of that thank you.

Sir, I sincerely wish the very best for you and yours. I cannot thank you enough for all you have

done on my behalf. How I wish that things had worked out the way we would have loved. But I must not

cry here. I have the strength, by the grace of God, to face my death with dignity. This I pray God for.

Again I thank you. Please my best wishes to all who care.

You take good care of yourself now. Bless you and thanks.

As Always Stanley

 

 

 

There may be many reasons why we should have no sympathy for any murderer. But is there any reason why we should punish him twice?  We punish him first when we make him wait with the

awesome prospect of death before him and, secondly, we execute him. The worst punishment, psychologically and spiritually, is that which occurs during the last days of the condemned.

 

QUESTIONS

1.         In what ways is there discrimination in the imposition of the death penalty.

2.         Do you share the view that the long wait before execution is a worse punishment than execution itself?

 

Further References

1.         A. Koestler and C. H. Rolph, Hanged by the Neck (Penguin Books, 1961).

2.         D.R. Wright, 'Mental Suffering Under Sentence of Death: A Cruel and

Unusual Punishment', 57 L. Rev. 814 (1972).

3.         Ringold, 'Governor Reagan and Execution Clemency', 55 Cal. L. Rev. 407 (1967).

4.         W. Averell Harriman, 'Mercy is a Lonely Business', Saturday Evening Post

            (March 22, 1958), p. 24.

 

 

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"

18        HANGED BY THE NECK

The moment of truth has finally arrived. There will be no more appeals, petitions, nor hope; the law must take its course. In a few hours the hangman's noose will be placed around the prisoner's neck,  the hangman's lever will be pulled, and the prisoner's earthly existence will cease.

The condemned man, during the last 24 hours, sees his relatives and friends for the last time. Most are without friends or relatives, so they wait for the scheduled hour alone. At the request of the prisoner, a priest will visit him for prayers before the hanging, and also to perform the last rites.

Prison officials are kept very busy. The requests of the prisoner are acceded to, and he is carefully guarded during these final moments. The police are contacted, and asked to keep away or to control the crowd around the jail. The presence of a doctor is arranged, to pronounce the prisoner dead after the hanging. Witnesses are summoned to view the execution and to ensure that it is

carried out according to the law. The gallows is checked, and preparations are started for the burial of the dead man.

The ceremony which surrounds the preparation for the hanging prisoner is performed with meticulous care, and much time and energy is expended. The prison officials, sometimes reluctantly, must pursue their morbid task, because the sanction of the State requires them to do so.

Most condemned men rarely sleep the night before. They are seized by inordinate fear. Many go insane. Others discover that they are so physically and nervously destroyed that they cannot control their bodily functions anymore. They realise, to their horror, that they have soiled themselves. The natural relaxation of the sphincter muscles, which occurs on death, shows the presence of uncontrollable fear. They are now at the cavern of death.

On the appointed day, with witnesses and others present, the condemned man is taken to the gallows. Few walk boldly to face their death. In Trinidad, on Tuesday, 6th November 1979, the condemned man is reported to have walked up to the Prison Superintendent, whom he had befriended during his stay on deathrow, shook his hand for the last time, wished hirn well and walked to the gallows to die (see the Trinidad Guardian, Wednesday, 7th November 1979).

Others do not die so easily., they struggle during the final moments. Warden T. Duffy in 88 men and 2 women wrote of a prisoner known as Northcott, who was 'scared to death': Must I see it at all Northcott asked. 'Can't I have a blindfold?' The Warden, his face ashen, nodded, and a black cloth was wrapped around the boy's eyes. His hands shook so much that it took two guards to hold them in position long enough to be strapped together.

He was utterly petrified . . .

Behind me, I heard Win sob, 'Please ‑ don't make me walk too fast'. I did not have to turn around to

know that the guards were dragging him. He was limp when they reached the foot of the gallows.

As he was carried up the thirteen steps, he let out a succession of hoarse cries which increased in

intensity until the big room sounded like a madhouse.

Many prisoners are so weak and debilitated that they have to be carried, by hand or in a wheelcart, to the gallows. They are mere vegetables, physical and mental wrecks, who have to keep their appointment with the hangman ‑ because the State demands it.   Arthur Koestler, in Reflections on Hanging (London, 19 56), wrote:

 

Some have to be carried tied to a chair, others dragged to the trap, limp and bowels open, arms

pinioned to the back, like animals, a still other things happen which should happen only in nightmare dreams.

 

Some men are so frail that bags of sand and other heavy material have to be attached to their body. The extra weight ensures that their neck is broken by the sudden pull of the rope. On one occasion it is reported that so much weight was attached to the body of the prisoner that when the hangman released the rope, then stopped it, the sudden jerk caused the body to tear from the head.

Witnesses fainted.  A warden was so sick thereafter, he had to retire from the prison service.

The British Home Office in their memorandum of Evidence to the Royal Commission on Capital Punishment (1953) submitted the following,

In 1855 an unfortunate case occurred at Exeter Prison in which, owing to a defect in the apparatus,

three attempts to execute a man named Lee were unsuccessful; his sentence was subsequently

commuted.  Cases also occurred in which the effect of hanging was that the prisoner was decapitated

(Emphasis added)

 

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There are also occasions on which the neck is not immediately broken and the prisoner is still alive after the jerk of the rope. The hangman in these circumstances allows the prisoner to dangle and wriggle at the end of the rope, and so strangle himself to death. Indeed, the Royal Commission Report states that 'hanging ... leaves the body with the neck elongated'. Hanging can never be a painless affair.

The prisoner is taken down from the gallows, pronounced dead, carted away, and buried in the vicinity of the prison. The prisoner's torment has ended. But the reverberating question is, 'What have we, the society, achieved?”

Nowadays, hangings are private affairs. The State seems desirous of protecting the young and respectable from this ghastly sight. But, surely, if hanging was such a good thing, there would be no need to perform it in secret, away from the public glare. Many citizens would favour public hangings. Show it on television, so that every one can see it! By so doing, it is argued, hanging would have a greater deterrent effect. When it is done in private, it loses its deterrent effect. But, let me remind them that England was persuaded to abolish public hangings just over a hundred years ago when a Royal Commission, after meticulous research, discovered that 164 of 167 murderers had thernselves witnessed a public execution (see Amnesty International Newsletter, October 1979, Vol. IX, No. 10).

Furthermore, public hangings tend to be scenes of debauchery, drunkenness, brawls, and pickpocketing. In 1840, William Thackeray observed in 'Going to See a Man Hanged':

I must confess ... that the sight has left on my mind an extraordinary feeling of terror and shame.

It seems to me that I have been abetting an act of frightful wickedness and violence, per­formed

by a set of men against one of their fellows; and I pray God that it may soon be out of the power

of any man in England to witness such a hideous and degrading sight. Forty thousand persons

 (say the Sheriffs), of all ranks and degrees, ‑ mechanics, gentlemen, newspaper‑writers, gather

together before Newgate at a very early hour; the most part of them give up their natural quiet

night's rest, in order to partake of this hideous debauchery, which is more exciting than sleep, or

than wine, or the last new ballet, or any other amusement they can have.

Pickpocket and peer each is tickled by the sight alike, and has that hidden lust after blood which

influences our race ...

I fully confess that I came away from Snow Hill that morning with a disgust for murder, but it was

 for the murder I saw done.

 

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Accordingly, those who desire to have public hangings must reflect on what Thackeray wrote and also on Charles Dickens' letter in the Daily News (1846) quoted in an earlier article, which stated that 'in taking human life, and in displaying before the eyes of the people scenes of cruelty and the bodies of murdered men, the law awakened ferocious prejudices, which gave birth to a long

and growing train of their own kind'. And we can repeat George Bernard Shaw's advice that: 'Murder and Capital Punishment are not opposites that cancel one another, but similars that breed their

own kind'.

The ritual which our society engages in to get rid of the murderer destroys our belief in the inherent dignity of man. It is incumbent upon any society which seeks to take a step forward towards civility and concern for human decency that official murder should be removed from its penal sanctions. Hanging the murderer is an expediency which belittles our concern for and value of human life.

 

QUESTIONS

I           Can you think of any method of execution which would be painless?

Would you recommend it in place of hanging?

2.         Do you believe that hanging is a public matter which should be shown on television?

3.         Is there much merit in the argument that hanging belittles our concern and value of

human life?

 

Further References

1.         A. Koestler and C.H. Rolph, op. cit.,

2.         S. Hoare, The Shadow of the Gallows (Gollancz, 195 1).

3.         Bedau, 'The Death Penalty and Gary Gilmore', loc. cit.

 

 

 

 

 

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19        ALTERNATIVE TO EXECUTION

The supporters of the death penalty maintain that there is no altemative to it. The death penalty, they assert ‑ and this cannot be denied ‑ gets rid of dangerous men, of violent recalcitrants, of men who are incapable of being reformed. They are useless men within the society who, while alive, will be a burden on the system and win benefit from the bounty of the taxpayers, whose money supports them in prison.

Abolitionists can be frank about the whole issue and admit that the alternative to the death penalty is not easily forthcoming. They do not oppose the death penalty because they have an altemative to it. They oppose it completely on moral, rational, and humanitar­ian grounds.

Abolitionists contend that the death penalty is not a deterrent to murder. They argue that murder is one of the more hideous of human activities which is not easily controlled. Men will always kill, whether or not the death penalty exists. Professional killers, for instance, are not deterred by any penalty; they plan their crimes to avoid detection, and they do not expect to reach the gallows. Other types of rnurder which are not planned, and which occur on the spur of the moment, are unlikely to be deterred by any penalty.

Admittedly, our penal system is so structured that 'lifers', or prisoners sentenced to life imprisonment, consume a minute proportion of the prison's budget. They have to be adequately fed, clothed, and cared for in many ways. Their existence in prison is undoubtedly an additional burden on the State. Eliminating them would reduce the prison's expenses.

Abolitionists protest that these are the arguments of men whose society is bankrupt of ideas. Should the society get rid of killers simply because they are an uneconomic burden to the State? Such an expediency is undesirable. The cost to keep these men in prison may be the price a society has to pay for the human decency and civility it seeks to attain within its penal system.

Additionally, abolitionists argue that the death penalty is costly. The cost to the judicial system involves expenses for the defendant's attorneys, expert witnesses, and the inevitable appeals of the

convicted murderer. The penal system has to provide special, separate, and security‑tight housing for the condemned men, requiring extra staff, additional facilities, and expensive safeguards which add considerably to the prison's budget. Then, the actual execution is also a drain on the prison's resources. The special precautionary measures to effect the morbid ceremony of hanging are expensive, burdensome, and psychologically demanding for all concemed.

 

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On the other hand, if the convicted murderers were added to the prison population without any special safeguard, the cost to the prison would be minimal as they form such an insignificant part of the prison population. The costs to run a prison is fixed from year to year, and a few additional men will hardly affect the economic costs. Thus, the economic argument propounded by the retentionists is a misguided, mistaken, and mischievous one.

Moreover, abolitionists maintain that the economic burden, if any, can easily be alleviated if the prison system was usefully structured, designed, and equipped to maintain itself, and to further provide additional labour to undertake community projects. The present prison system, in which men are kept locked away without affording them the opportunity to earn their keep, serves little purpose and needs radical restructuring.

Furthermore, the use of the death penalty over several centuries in public and in private, and employing methods ranging from cruel and nauseating executions to apparently painless ones, has not eradicated criminal violence and murder. Thus, if we accept the proposition that murders will always occur ‑ and it may be difficult to do so because we would like to think that murders can be eradicated ‑ then we can move to the next step of determining what can be done to alleviate the difficulties, miseries, and problems caused by the murderer.

It seems crystal clear that the murderer, and other criminal offenders, owe a debt to the victim and to the society at large for their miserable actions. They ought to repay, perhaps only partially and indirectly, for the harm that they have caused.  Let them spend the rest of their natural life, or part of it, supporting the family of the victim, perhaps their own family, and contributing to the community.

In many primitive societies the death penalty was unknown. Perpetrators of murder and other criminal deeds had to repay in labour, in provisions and other necessaries to the family of the victim as compensation and restitution. Primitive societies accepted that men will err.  They acknowledge that abnormal behaviour would occur alongside the desired and acceptable behaviour. And when such abnormal behaviour occurred, the elders, leaders or chiefs dealt with it in a practical and humane way.

 

 

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With the advent of civilisation, modern man sought to eradicate abnormal behaviour. Such behaviour could not be tolerated or acknowledged. Perpetrators were crucified, garrotted, stoned, and otherwise executed. In doing so, modern societies hoped to remove the undesirable practices of criminals. The law was dramatically changed or modified, from one of compensation and restitution to the victim to one of sanctions against and punishment of the offender.

Criminal offenders were prosecuted by the State, rather than by the victims. And even though in modern societies, the victims may seek compensation through the avenue of civil law, the normal practice is for the State to exact retribution from offenders who violate its criminal laws. The victims suffer as much as the families of the offender. The practice of the State was, and still is, an adventure in human suffering and misery.

The ultimate truth which must now become painfully evident is that murders and other forms of abnormal behaviour are inevitable. We can try to amend the situations which lead up to their perpetration. Accordingly, we can begin by eliminating the unconditional  licence to carry dangerous weapons.

The socio‑economic conditions in which violence and criminal activity flourish must be improved, even though it demands the political will of our leaders to deal with them. But we will never end abnormal behaviour by penal sanctions. That is the practical reality we need to face.

Our modern penal sanctions of death and other retributive punishments are misguided. We need to return to the practice of primitive men in their rational and humane approach to criminal behaviour. They dealt with it by exacting useful contributions from the offenders, to benefit their societies. This approach is the turnabout we need to rnake in our penal system. Penal sanction can then be geared towards conpensation, and become a positive alternative to execution for Murder.

QUESTIONS

1.         What alternative to hanging would you propose?

2.         Should economic considerations be a reason for hanging?

3.         Do you favour the penal practices of primitive man?

Further References

1.         Nakell, 'The Cost of the Death Penalty', 14 Crim. L. Bull 69 (1978).

2.         Stanton, 'Murderers on Parole', 15 Crime and Delinquency 149 (1969).

3.         T. Sellin, 'Prison Homicides', in Capital Punishment, ed. Sellin (1967).

4.         Buffum, 'Prison Killings and Death Penalty Legislation', 53 The Prison J. 49(1973).

 


 

20        POSTSCRIPT

Since writing these articles, several persons have loaned me books, articles, and documents related to capital punishment. Two of them I have found extremely helpful and would gladly recom­mend them to all who want to participate in the Capital Punishment debate: Hanged by the Neck, Penguin Books (1961) by Arthur Koestler and C.H. Rolph, and a document published by the U. S. Government Printing Office, Washington (1978), titled 'To Establish a Rational Criteria for the Imposition of Capital Punishment'. In writing this postscript, I shall use several passages which appear in these two booklets and which admirably answer the arguments, opposition, and doubts which have been used to challenge my position.

 

The Victims

I have been accused quite falsely of sympathising with the murderers and showing no concern for the victims. But, many of the families of the victims know, as I do, that the execution of the murderer will not bring back their loved ones. Senator Edward Kennedy, whose two brothers were assassinated, wrote in connection with the sentencing of Sirhan Sirhan, the assassin of Robert Kennedy: 'My brother was a man of love and sentiment and compassion. He would not have wanted his death to be a cause for the taking of another life'.

The mother of a girl who was the victim of a sex killing wrote when she heard that the offender was given life imprisonment:

I cannot believe that capital punishment is a solution - to abolish murder by murdering, an

endless chain of murdering. When I heard that my daughter's murderer was not to be executed,

 my first reaction was immense relief from an additional torment: the usual catastrophe,

breeding more catastrophe, was to be stopped - it might be possible to turn the bad into good.

I felt that this man, the victim of a terrible sickmess, of a demon over which he had no control, might

even help to establish the reasons that caused his insanity and to find a cure for it. Maybe he became

what he is because of unnamable humiliations and rejection. To become useful would be a way to cure

 him ...

My daughter was against capital punishment. When she was eight years old she came home from

school one day and told me a little boy had thrown a glass of water over her. 'And what did you do

I asked her. 'At first' she said, 'I wanted to do the same to him, but I suddenly saw myself doing what

he did . . . He would have won!' As she grew up, this idea grew into a desire to help the destroyer.

If it is to be 'an eye for an eye and a tooth for a tooth', this will soon be a blind and toothless world.

 

 

This extract was taken from Hanged by the Neck, page 25; on page 26 two letters from relatives of a murder victim were reproduced ‑

We have for some time been in favour of the abolition of capital punishment. The murder of our

dearly beloved sister, Janet Marshall, has only served to increase our conviction that this

evil should be abolished! [In yet another letter the brother wrote.] I now feel more convinced than

ever that capital punishment is an evil and an unnecessary thing. It might be thought strange

that I have no bitterness whatever towards her murderer in spite of the dreadful hole, it has made in

my life, and this leads me to think that revenge is not a natural human emotion and that Christ's

teaching on this matter was fundamentally sound. I never discussed this matter with my sister,

although at times we ventured pretty close to it, but knowing how she and I so often agreed on

issues of this kind I should not be surprised if her views on it were the same as mine.

Coretta Scott King in a telegram to the United States Senate subcommittee 'To Establish Rational Criteria for the Imposition of the Death Penalty' (1978), was vehemently against capital punishment; she wrote:

. . . As one whose husband and mother‑in‑law have died the victims of murder assassination, I

stand yet firmly and unequivocally opposed to the Death Penalty for those convicted of capital

offences. An evil deed is not redeemed by an evil deed of retaliation. Justice is never advanced in

the taking of a Human Life. Morality is never upheld by legalized murder ...

 

 

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The above passages, I hope, show that even relatives of murder victims are compassionate and understanding. They realise the futility, barbarity, and degradation of capital punishment. They know that it is an expression of governmental power, and as Arthur Koestler writes:

It is the symbol of terror, cruelty, and irreverence for life; the common denominator of

primitive savagery, medieval fanaticism, and modem totalitarianism. It stands for everything

that mankind must reject, if mankind is to survive its present crisis.

Nonetheless, notwithstanding the overwhelming evidence to support abolition, the majority of the people are for capital punish­ment. Why is this so?

It is easy to understand the force of human emotions which causes nl individual who has had a member of his family or a close personal friend, murdered, to feel like taking the law into his own hands and killing the murderer. But killing the killer does not restore the victim's life, nor prevent another killing. Such an act would be vengeance which, however understandably motivated, is nevertheless clearly and wisely forbidden by public policy. Yet it should be explicitly recognised that vengeance, pure and simple, may often be the unspoken, unadmitted, and unrecognised motive behind the rationalisation of deterrence. Vengeance is an emotional spree that is too harmful for us to afford in a civilised community.

(Special Conunission in Massachusetts, 1958)

Getting Away with Murder

Retentionists also take the view that to remove the death penalty is to allow  murderers to get away with murder. The streak of revenge and vengeance can easily be discerned in their arguments. And, indeed, many of them are prepared to argue that vengeance is a virtue (e.g. Willel W. G. Reitzer, Universal Christian Publications). But abolitionists argue that the murderer does not get away scot‑free; he can be sentenced to prison for life, from where he may even be able to assist the victim's family.

At the same time, abolitionists are fervently of the view that the existence of the death penalty induces jurors to acquit or to convict for a lesser charge of manslaughter when a conviction for murder could easily have been found. In these cases, therefore, the abolitionists contend that these killers get away with murder.

 

 

 

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And, quite frankly, if the data on hangings in the West Indies were available to all concerned, it would become evident that executions are reserved for a very small and select group of murderers. For example, in Barbados, since 1877 there have been only 53 executions, i.e. an average of about one per every two years. In Jamaica, there have been only 93 executions since 1958. In both countries, execution is less that 5 percent of the number of murders reported, and less than 30 percent of the number of convictions for murder.

It becomes quite clear that executions are imposed discriminately. My own researches have adequately demonstrated, at least to me, that the men on the condemned cells in West Indian prisons (P.S. I received several letters per month from men on deathrow) are from the underclass, the illiterate (many of the men ask the warders to write for them), and those who were represented by State‑appointed lawyers. So the natural conclusion is that the killers of means, of influence, and those who can retain private, experienced lawyers usually get away with murder.

 

Encouraging Murder

The ordinary man in the street, white collar workers, judges, etc. argue relentlessly that if we abolish hanging we would be encouraging murder, we would be opening the floodgates to un­precedented violence and wanton killings. They promote the view that many potential killers are deterred by hanging because at the last moment they say, 'If I wasn't going to be hanged, I would kill you'.

But, how often we have heard the expression, 'I will hang for you'. Evidence now shows that the infamous Gary Gilmore, who insisted that he should be executed, was prompted to kill because of an intense passion to die. He was involved in several suicide pacts; he risked his life in dangerous situations, and he actually comrnitted the murders in a capital punishment jurisdiction in order to be pxecuted. (see Bedau, 'The Death Penalty and Gary Gilmore', Hastings Or. Rep. 5, 6th February 1977). Indeed, it is clear that abolition of the death penalty is not a sanction for violence and murder as those civilised countries which have taken that bold step have realised. But the contrary may be true. When the State perpetrates official killing it sanctifies murder and sets an example for violence.

 

 

 

 

 

 

 


 

Barry Nakell in The Cost of the Death Penalty wrote:

We know that violence has a way of inciting further violence, especially when it is publicised. By

cold‑blooded execution, the state teaches violence. Prison authorities realise this well enough to batten

down the hatches whenever executions take place within their institutions. We cannot take similar

precautions against the inciting effect of executions among free society.

Eugene G. Wagner in Why We Should Reject Capital Punishment writes:

Capital punishment causes additional killings. These include the so‑called 'suicide‑murder' cases,

many of them clinically documented of persons who wanted but feared to take their own lives

and committed murder so that the state would execute them. They include imitative killings by

the weak minded, who are incited by the sensational publicity of capital trials. A famous example is

the Michigan murder by Alfred Hotelling in the wake of the California‑Hickman trial in the 1920s.

No one knows how many murders are indirectly caused by the moral lesson which the death penalty

teaches to many: that  killing is a permissible, even desirable solution to human problems.

 

The Future of Hanging in the West Indies

How much longer will the territories of the Caribbean perpetrate capital punishment? The answer lies in the boldness, integrity, and vision of our politicians. Unfortunately, our West Indian politicians have never been known to be men of vision, nor leaders who are willing to make unpopular decisions in the name of reason, humanity, and justice. Our leaders, who are supposed to pave the way towards a civilised, Christian, and charitable society, generally support capital punishment on the basis that we are backward, unchristian, and violent societies. But, more importantly, they are overly concerned with whether they will be returned to office and accordingly, they try to make decisions which coincide with the feelings and emotions of their constituents. When will they learn that they are the representatives, rather than the delegates, of the people and thus they can lead us out of the dark to take what Albert Camus referred to as the 'great civilising step, by abolishing state violence and murder. When our leaders are prepared to take this bold step it will be the dawn of a new hope for a restless people.

 

 

 

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