Justice matters in Jamaica

One of our favourite American political podcasters, who focuses largely on the ex-President’s interminable legal manouevrings, intones at the end of each podcast: “Because Justice. Matters.” Emphasis on the final word.

Well, so it does in Jamaica, too. Our Police Commissioner is looking increasingly haggard at each quarterly press conference, and our Prime Minister seemed rather weary yesterday after a morning tour of his own inner-city Kingston constituency, which was hit by a wave of violence over the past few days.

In its latest efforts to “get tough on crime,” the Lower House of the Jamaican Parliament has just passed the Firearms (Prohibition, Restriction and Regulation) Act, 2022, which you can take a look at here. Human rights lobby group Jamaicans for Justice has just put out a detailed press release on the legislation, which I am sharing below.

Before I get to that, we cannot ignore remarks made in Parliament yesterday by a former National Security Minister, Robert Montague. He seized the opportunity to advocate for more violence in response to our recent (admittedly terrifying) tidal wave of violence. In other words, he made an impassioned call to “bring back hanging” – and for revenge to be taken on the criminals in any way that results in more deaths. He even mentioned lethal injections, firing squads – anything that will satisfy his desire for even more blood, on top of all the blood we are already bathed in. He asserted that although capital punishment has not been particularly effective in other countries in reducing violent crime (it has not), Jamaica would be the exception and it is “fit for purpose” on our island. Yes, that will do the trick, he believes.

I would not mind so much if Mr. Montague’s emotional declarations were based on his genuine views, which he is entitled to. I just hope they were not an attempt at populism, and on “getting a forward” from the Jamaican public. There is a chorus waiting out there to echo his views, as Mr. Montague must be fully aware.

Government officials are repeating like a mantra that we (the public) are not showing enough empathy about the victims of crime. I don’t know anyone who isn’t horrified, even to the brink of tears, about our fellow citizens being murdered and their families bereaved, injured, sometimes killed alongside them. So, I wish they would stop suggesting that we don’t care enough about the victims; I am not buying that.

However, no amount of hangings, firing squads, or whatever Mr. Montague’s preferred method of state slaughter is, will bring the victims back to life. Revenge may be sweet for a little while, but it is ultimately hollow. I heard one woman, speaking on television yesterday, who does not want revenge for the extremely tragic killing of a family in Clarendon (she is a family member). She forgives the perpetrator, as a good Christian should (yes, I am told we are a Christian country, but it is usually the Old Testament “eye for an eye” kind of Christian). She just wants justice to be done.

Because justice matters.

Like Stand Up for Jamaica (SUFJ), I am also “committed to keeping advocating for the abolition of the death penalty.” It is my firm belief that it is not the solution; and it always has been my belief. If we are unable to implement capital punishment (remember the Pratt and Morgan case), then we may as well take it off the books. Like SUFJ, I agree that parliamentarians should either update these laws or remove them.

The fact remains, however, that we need what SUFJ calls a “broader approach.” Besides critical law reforms, we need to address the root causes of crime. So many excellent, thoughtful reports have already been done by learned Jamaicans, and put on the shelf. The answers are there.

But all we can come up with is a suggestion of lethal injections. Come now, Mr. Montague. You can do better than that.

I also share JFJ’s views on the issue of mandatory minimum sentences; mention of this immediately waved a “red flag” to me, although unlike JFJ, I have no legal expertise. The Jamaican judiciary could definitely get into deep water on this. Here is JFJ’s release (the italics and highlighting of the last paragraph are mine):

Jamaicans for Justice logo.

JFJ WELCOMES FIREARMS BILL BUT URGES PARLIAMENT TO RECONSIDER MANDATORY MINIMUM SENTENCE 

September 8, 2022 – Jamaicans for Justice takes note of the recent passage of the Firearms (Prohibition, Restriction and Regulation) Act [Bill] by the Lower House and welcomes several new provisions in the Bill, such as barring those involved in domestic and interpersonal violence offences from receiving firearm authorisations. JFJ stands in full support of a firearm legislation that seeks to address illegal possession of firearm by criminal networks, as well as the misuse of legal firearms against lawful citizens. We, however, urge parliament to reconsider its position on mandatory minimum sentences as they may have unintended consequences for those most vulnerable if some exceptions are not included. 

Avoid Possible Legal Quagmire and Amend Mandatory Minimum Provisions 

One of the main concerns of JFJ is that mandatory minimums limit judges in their discretion and consequently may result in disproportionate sentences, which tend to affect mostly vulnerable groups such as the marginalized poor. 

JFJ notes that section 42K of the Criminal Justice (Administration) Act makes provisions for the Court having regard to the circumstances of the particular case, where it is believed that it would be manifestly excessive and unjust to sentence the defendant to the prescribed minimum penalty for which the offence is punishable, the court shall sentence the person to the prescribed penalty and issue the defendant a certificate so as to allow the defendant to seek leave to appeal to a Judge of the Court of Appeal against his/her sentence. Where the certificate has been issued and the Court of Appeal agrees the sentence was manifestly excessive and unjust, the Judge of the Court of Appeal may impose a sentence that is below the minimum. 

While this is a good provision to help bolster the judicial discretion negatively affected by mandatory minimum sentences, it is not referenced in the Firearms (Prohibition, Restriction and Regulation) Act 2022 with appropriate criteria to administer same. Furthermore, the discretion provided by said section 42K is still limited, as the trial judge only has discretion to allow to an appeal to the Court of Appeal and not recommend a sentence based on the facts they would have heard. 

According to Minister of National Security, “notwithstanding the punitive regime being enforced [through mandatory minimum sentencing in the Firearms Act], there is still an avenue for leave to the appeal process.” JFJ submits that this avenue leaves room for benefit only to those who can afford an attorney to pursue an appeal process. Parliament, though unintended, is in effect legislating social inequity!

Of importance to note, section 99 of the Firearm Act states that in determining the severity of any sentence to be imposed in respect of an offence under this Act, a court shall have regard to whether the offender has been previously convicted of a firearm related offence; or whether the offence for which the offender is convicted is in connection with the commission of an offence under this Act by a person under the age of eighteen. However, as the sections defining offences all use mandatory minimum sentences, it is unclear what any judicial discretion could do in either circumstance. Therefore, a legal quagmire may very well be at play if these hiccups are not addressed. 

JFJ urges Parliament to review and consider how section 99 could be strengthened to reflect, for example, chapter 7 of the UK sentencing act, which is instructive in adopting a more discretionary approach that would lead to fairer sentences, particularly in the cases involving minors and youth offenders. Of note, while UK provides for mandatory minimum sentences, the Court gets a strong superseding power if the court is of the opinion that there are exceptional circumstances which relate to the offence or to the offender, such as: 

• Whether the offence was a first time or repeat offence
• How to deal with minors specifically under each offence and specifying a lower sentencing period for them, even in cases where had they been over a certain age they would have been imprisoned for life
• Provides low minimum terms for first time offenders (3 years under 18, 5 years over 18)

JFJ is also concerned with the removal of the plea mechanisms with the Criminal Justice Administration (Amendment) Act. These proposed amendments remove provisions that allow for reduced sentences where an offender pleads guilty. This decision, JFJ believes, will further limit avenues for reform for offenders who are so inclined.

Firearm Act Must Address Planting Of Firearms And Criminal Exploitation Of Children And Vulnerable Adults

Jamaicans for Justice is concerned with lack of clear provisions around the planting of firearms, considering the issues the country has had with the planting of firearms by security forces on citizens. Referencing INDECOM’s 2018 report, where the planting of firearms continues to be of serious concern with no legislative prohibition to the practice, JFJ recommends that serious consideration is given to legislating this issue within the Firearms Act with a strong prohibitive sentence. This will not only serve to stem the practice but to increase public confidence in the security forces when carrying out firearms investigations. 

On the issue of criminal exploitation of children and the vulnerable, it is noted that while the Firearm Act does make provisions for forcible use of firearm under sections 14 and 15, JFJ believes that where gangs may exploit youngsters and vulnerable groups and force them to act criminally, explicit provisions must be made. In those situations, JFJ believes those doing the exploitation should have greater penalties affixed and those exploited cannot be subjected to mandatory minimum sentencing.

The Criminal Justice (Suppression of Criminal Organizations) Act, for example, does provide for offences for the recruitment of children and adults to criminal organisations. Within the context of the Firearm Act, this issue comes down to the mandatory minimum sentencing. Without the court’s discretion, there would be no regard for the unique circumstances of each matter and not have to treat with the persons described above as any other person under the act.

Senate is urged to address the issues raised 

JFJ recognizes the efforts taken by the Joint Select Committee and Parliament in balancing the submissions and views of various stakeholders amid the alarmingly high murder levels. Nevertheless, we regret that the core issue of mandatory minimum sentencing was ignored, as we had hoped to see more effective judicial discretionary provisions in the Bill prior to its passing in the lower house. We therefore urge Senate to consider the points raised. 

For the avoidance of doubt, the organization is not arguing for criminals not to be strongly dealt with in law, but there must be provisions that address, for example, exploitation of youngsters in poor communities from the same criminal actors that the legislation is intended to tackle. While we welcome legislative changes to deter crime, social inequality cannot invariably be legislated. JFJ further contends that criminals are deterred more effectively by increasing the chances of their conviction, rather than increasing the sentence if they are convicted.

The legislation will now go to the Upper House for debate, and I hope they will consider the above points made by JFJ.