One issue which arises if the mandatory death penalty for murder were to be abolished, but a discretionary death penalty retained, is the question of which murders should see sentence of death imposed. Therefore, guidelines regarding what murders constitute the ‘worst of the worst’ are necessary.
There is evidence that a discretionary death penalty would have support in both Trinidad and Tobago and Barbados (Note: in June 2018, the Caribbean Court of Justice held the mandatory death sentence in Barbados to be unconstitutional – it remains to be seen what course the government will follow, see The Death Penalty in Barbados). For example, polling data from Barbados suggests that public opinion is in favour of the retention of the death penalty for certain types of murder only. A Nation News-commissioned CADRES survey conducted in 2010 found that 50% of respondents were in favour of hanging in some instances. However, it should be noted that this survey was conducted following a very high-profile arson attack which sparked public debate on the resumption of hangings. Results may therefore be skewed towards the more punitive (see ‘Hang them’, by Rhonda Thompson, 10 October 2010, and ‘To hang or not to hang’, by Peter Wickham, 12 September 2010).
Edward Fitzgerald and Keir Starmer (2007) reported on the issues that arise in the sentencing and resentencing of offenders following abolition of the mandatory death penalty and proposed a test for the imposition of the death penalty in such cases.
‘The principle that nobody should be sentenced to death without an opportunity to put forward mitigation – about the nature and circumstances of their offence, and about their own individual history, their mental and social problems and their capacity for reform – reflects an evolving international norm that it is wrong to sentence to death all those convicted of murder and leave it to the mercy stage to decide who should live and who should die. Rather the death penalty should be imposed by a Court only for the worst cases of murder, where the crime is particularly heinous and for the worst type of murderer where there are no significant mitigating circumstances.’
The authors remark that there is growing acceptance across the Caribbean of the principle that the death sentence should be reserved for ‘the worst of the worst.’ Fitzgerald and Starmer characterise this approach as two-fold, based on the offence itself being an exceptionally grave offence, combined with a lack of any mitigating factors or hope of reform.
Fitzgerald and Starmer outline relevant considerations regarding mitigating/aggravating circumstances and note that previous case law held that these lists should not be exhaustive:
- Type and gravity of the murder;
- Mental state – including diminished responsibility;
- Other partial defences such as provocation etc;
- Lack of premeditation;
- Capacity for reform and continuing dangerousness;
- Views of the victim’s family;
- Guilty pleas;
- Prison conditions.
The authors also cite authority that at sentencing stage, the burden is on the prosecution to prove, beyond a reasonable doubt, the presence of aggravating factors and to negative the any mitigating factors suggested by the defence, also beyond a reasonable doubt. Legal aid must also be available at the sentencing stage, extending to include expert evidence and state-funded psychiatric and social worker assessment.