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Jamaica: An Abolitionist De Facto State With No Abolitionist Intentions

The Death Penalty Worldwide database recently updated its entry for Jamaica, available here. Although Jamaica has not carried out any executions since 1988, making it an abolitionist de facto state according to the United Nations definition, the country’s legislators declared their commitment to retaining the death penalty in a “conscience” vote in November 2008.

The law and implementation of capital punishment has undergone significant changes in Jamaica in the past two decades, largely due to a series of restrictive decisions handed down by the Judicial Committee of the Privy Council, a reconstituted panel of judges from the United Kingdom’s Supreme Court. A legacy of Jamaica’s colonial past, the JCPC is the highest court of appeal for Jamaica and a number of other Caribbean countries. As a consequence of two JCPC decisions, Watson v. The Queen (2004) and Dougal v. R. (2011), the death penalty in Jamaica may only apply to the most highly aggravated murders, and a sentencing court must have the discretion to consider alternative sentences if the case’s mitigating circumstances justify it.

Two other major JCPC decisions, however, have been undercut by Jamaica’s constitutional amendments from last year. In Pratt & Morgan v. The Queen, decided in 1993, the JCPC held that death-sentenced prisoners who had spent more than 5 years awaiting execution on death row had been subjected to cruel and inhuman treatment in violation of the constitution, and must have their sentences commuted. As a result of this decision, a large number of death row inmates were issued commutations. In Lewis v. Attorney General of Jamaica, decided in 2000, the JCPC required that all of the appeals of a death-sentenced prisoner be allowed to run their course before execution could be carried out – even where the appeals were directed at international tribunals (such as the Inter-American Commission on Human Rights) whose rulings could prolong incarceration beyond 5 years. Jamaica’s new Charter of Fundamental Rights and Freedoms, which became part of the country’s constitution in April 2011, voided both of these rulings, by excluding duration of imprisonment on death row from being construed as inconsistent with the constitution, and by setting strict time limits on the presentation of appeals to international human rights bodies.

Jamaican politicians’ expressed intentions to resume executions are all the more worrying that the prison conditions on death row are cause for concern. A very thorough new report on Jamaican prisons published last year reports abysmal sanitary conditions and virtually nonexistent health care. The report expressed concern for mentally ill prisoners, who are particularly vulnerable to sexual abuse.