Social Foundations of Anglophone Caribbean Constitutions: Impact on the Implementation of the Death Penalty in the Caribbean and Impediments Towards Abolition

This discussion identifies the status quo in the Caribbean with respect to the implementation of the death penalty upon a conviction for murder.  Public officials justify retentionism by referring to capital punishment as a significant crime fighting tool to counteract the escalating murder rate. Justification is further embedded in the Savings Law Clause in the constitution which protects pre-independence laws from challenge in the post-independence era. This includes new laws, international conventions and treaties which are incompatible with fundamental rights (and limitations) in the constitution.

In this seminar, the use of capital punishment is framed within the context of the extent to which the constitutional right to life exists in the Caribbean. Using a social-legal perspective and two country case-studies (Trinidad and Tobago, Barbados) the critical analysis offers insights into why the right to life was restricted via the Savings Law Clause. The discussion reveals how constitutional impediments are been gradually removed by innovative constitutional motions from discerning human rights lawyers and landmarked decisions by international and regional appellate courts. The Judicial Committee of the Privy Council in Pratt v Morgan (1993) declared it ‘cruel and unusual punishment’ to execute death row convicts after five years. This resulted in the commutation to life imprisonment of  prisoners previously sentenced to death. In 2009 the Eastern Caribbean Supreme Court stated that the death penalty can only be imposed for the ‘worst of the worst’ cases where there is absolutely no prospect of the reformation of the defendant. The Caribbean Court of Justice, Barbados’s final Court of Appeal, ruled in Nervais and Dwayne (2018) that the mandatory death penalty was unconstitutional. Consequently, the Barbados government is currently undertaking constitutional reform to reflect this ruling.

Academic research has an important role to play as leverage in constitutional reform and legislative amendments to remove the death penalty from statue. In Trinidad and Tobago, there is robust evidence of weakening support for the mandatory death penalty . The imposition of death sentences is rare, arbitrarily imposed, and not a deterrent to the high murder rate (Hood and Seemungal, 2006). Judges, defence lawyers, and state prosecutors support alternatives to capital punishment (Hood and Seemungal, 2009). The presumed high levels of support for the death penalty for all murders did not materialise in a nuanced public opinion survey containing a sentencing task (Hood and Seemungal, 2011). EU funding to the Death Penalty Project London facilitated a regional study in the Organisation of the Eastern Caribbean islands and Barbados. Directed by Prof Roger Hood (Oxford University), the study examines the level of support for abolition by civil society, religious groups and government officials. British Academy funding to Dr Lizzie Seal (Sussex University) allows scrutiny of the Caribbean region in her project Reforming British law and policy on the global death penalty. Collectively, the data from the two projects would reveal the pathway towards further restrictions of the death penalty or its abolition. This is persuasive evidence for  Caribbean constitutional reform.