A Life and Death Compromise: The Mandatory Death Penalty in the Caribbean Court of Justice

1. A Life and Death Compromise: The Mandatory Death Penalty in the Caribbean Court of Justice A Proposed Work in Progress Presentation forNORTHEAST PEOPLE OF COLOR SCHOLARSHIP CONFERENCE by Jane E. Cross Associate Professor of Law and Director of Caribbean Law Programs, Nova Southeastern University Shepard Broad Law Center

2. Attorney General of Barbados v. Joseph • Article will examine a Caribbean Court of Justice (CCJ) decision on the Mandatory Death Penalty • Case study of Boyce and Joseph illustrates the dynamics of the mandatory death penalty in the Caribbean and the jurisprudential trends in the region in three ways: • Background of Mandatory Death Penalty • Constitutional Issues • Human Rights compromises in Caribbean law

3. Attorney General of Barbados v. Joseph Two challenges: The constitutionality of • The mandatory death penalty • Barbados Privy Council (BPC) actions after a petition to the Inter-American Commission on Human Rights (IACHR).

4. Background of Death Penalty in Commonwealth • Barbados like almost all Commonwealth Caribbean nations has a mandatory death penalty. • Conviction for murder = death sentence. • Death sentence can be commuted to life sentence by Governor-General upon recommendations of the Barbados Privy Council.

5. Death Penalty History • The mandatory death penalty has existed since colonization because it was retained at independence through a “saving clause” in the constitution. • Savings clause: sanctions laws existing at time of independence even if the law contravenes the constitution • Barbados “saved” death penalty after independence in 1966 even though the UK had abolished the death penalty in 1965 because Barbados had not incorporated that abolition into its laws.

6. International Obligations of Barbados • OAS (Organization of American States) member since 1967 • Party to OAS Charter and later the American Convention on Human Rights (ACHR) (since 1978) • Acceded to the International Covenant on Civil and Political Rights (ICCPR) in 1973.

7. Commonwealth Caribbean Paradox As noted by Justice Nelson, Commonwealth Caribbean Courts face a paradox in mandatory death penalty cases: • Judge must sentence convicted murderer to death. • Constitution mandates a clemency hearing before an execution. • Executives have entered into treaties that permit challenges in international human rights bodies to death sentence after an exhaustion of domestic appeals.

8. Basic Thesis In resolving this paradox, the CCJ is once again engaging in a human rights compromise. • While the Caribbean seeks to observe human rights, it remains anchored to the past. • As long as the mandatory death penalty is constitutional, post-conviction procedure remains the principal human rights safeguard.

9. Procedural History of Joseph -Boyce Case Joseph-Boyce case has gone through the Barbados appellate process twice. • Judicial Committee of the Privy Council (2004) • Caribbean Court of Justice (2006)

10. Timetable of Joseph - Boyce Case (Phase I) • April 10, 1999: Marquelle Hippolyte murdered by Jeffrey Joseph and Lennox Ricardo Boyce and two others. • February 2, 2001: Joseph and Boyce were found guilty of murder and mandatory sentence of death by hanging was imposed on both. • March 27, 2002: Appeal to the Court of Appeal of Barbados was dismissed. • June 24, 2002: The Barbados Privy Council (“BPC”) met and advised against commutation of the death sentences.

11. Timetable of Joseph - Boyce Case (Phase I cont’d) • June 26, 2002: Death Warrants were read to the men. An order was obtained from the High Court of Barbados staying the execution pending an appeal to the Judicial Committee of the Privy Council (“JCPC”). • July 7, 2004: JCPC upheld (by a five to four majority) the mandatory death penalty in Barbados and the appeals of Joseph and Boyce were dismissed.

12. Timetable of Joseph - Boyce Case (Phase II) • September 3, 2004: Joseph and Boyce filed application before the Inter-American Commission on Human Rights (the “Commission”) for a declaration that of a violation of their rights under the American Convention on Human Rights (“ACHR”).

13. Timetable of Joseph - Boyce Case (Phase II cont’d) • September 13, 2004: BPC meet to consider ramifications of JCPC decision and advised the Governor-General that the death sentences should be carried out.

14. Timetable of Joseph - Boyce Case (Phase II cont’d) • September 15, 2004: Death warrants were read to Joseph and Boyce for an execution scheduled on September 21, 2004. • September 16, 2004: Motion filed before High Court seeking commutation of death sentence.

15. Timetable of Joseph - Boyce Case (Phase II cont’d) • September 17, 2004: The Inter-American Court issued provisional measures requiring Barbados to preserve the lives of the two men pending the outcome of their petition to the Commission. • December 22, 2004: The High Court dismissed the motion. • The case then went to the Barbados Court of Appeals which ordered the death sentences commuted and substituted with life imprisonment.

16. Timetable of Joseph - Boyce Case (Phase II in CCJ) • June 20-21, 2006: This case was heard before the Caribbean Court of Justice. • November 8, 2006: The Caribbean Court of Justice delivered its opinion which ultimately dismissed the Government’s Appeal of the commutation of the death sentences.

17. CCJ Case The two issues before the CCJ were • whether the BPC’s decision was reviewable under the Barbados Constitution and • whether the BPC’s failure to await the outcome of the IACHR petition violated Joseph’s and Boyce’s right to protection under the law.

18. Pratt and Morgan Caveat Regardless of the resolution of these issues the CCJ agreed that the 1994 JCPC precedent of Pratt and Morgan would prohibit the execution of Joseph and Boyce: • Prohibition of execution after five years had elapsed. • In this case five years had elapsed on February 2, 2006.

19. CCJ Holdings The CCJ held that • the BPC’s exercise of the prerogative of mercy is reviewable. • the failure of the BPC to await the outcome of the petition to the IACHR was a contravention of the right to the protection of the law.

20. Key Points of Justice De la Bastide and Saunders Joint Opinion • “The power to confirm or commute a death sentence, particularly a mandatory one, is far too important to permit those in whom it is vested freedom to exercise that power without the possibility of judicial review even if they commit breaches of the basic rules of procedural fairness.” • “[T]he respondents had a legitimate expectation that they would be allowed a reasonable time within which to complete the process which they initiated by petitioning to the Inter-American Commission on Human Rights and make the report of that body available to the BPC in support of their case for commutation. For the state to attempt to execute the respondents without giving them that opportunity was a denial of their right to the protection of law for which the court had an inherent remedy.”

21. Use of Procedural Rules to Limit Death Penalty Use • Explore the rationale for the CCJ’s decision, especially the distinction between procedure and substance; • Examine whether or not the Joseph case has laid the groundwork for the ultimate abolition of the mandatory death penalty in all Commonwealth Caribbean nations; and • Discuss whether this compromise to preserve the mandatory death penalty provides adequate human rights protections.