Hood and Hoyle (2015) write that countries which seek to abolish the death penalty face a ‘challenge’ as to what should replace it. Bedau (1990) too says that this thorny question is ‘the oldest of all the issues raised by the two-century struggle in western civilisation to end the death penalty.’
Modern debate on alternatives to the death penalty has also grappled with how a penalty other than death can both effectively express retribution and societal condemnation, while also adhering to emerging human rights standards. For example, Articles 7 and 10 of the International Covenant on Civil and Political rights relate to prison conditions and opportunities for rehabilitation (see section on Human Rights), and are therefore very relevant in any discussion of what should replace the mandatory death penalty.
Should the mandatory death penalty for murder be abolished in Trinidad and Tobago, and in light of the recent Caribbean Court of Justice holding the penalty to be unconstitutional in Barbados, alternatives sentences are required for anyone found guilty of murder. This section:
- Looks at the reality that a de facto alternative to the death penalty is already in place in Trinidad and Tobago and Barbados
- Suggests how a discretionary death penalty system would work
- Presents existing research on public opinion on alternatives to the death penalty in Trinidad and Tobago and Barbados
- Explores alternative sentences that could replace the death sentence through consideration of alternatives adopted in a number of other jurisdictions
- Examines in more detail the sentence of life without possibility of parole (LWOP) and its prevalence in the United States as an alternative to the death penalty
Hood and Hoyle (2015) summarise the position of countries that abolish the mandatory death sentence:
‘It became more problematic when mandatory death sentences were replaced by a discretionary punishment and the death penalty was reserved for the “worst of the worst” murders. The choice was between sentencing all persons convicted of murder who were not sentenced to death to a mandatory indeterminate life sentence, either subject to review at some point to consider suitability for release or as a “whole life” sentence, or to give the judge power to sentence to whatever penalty, determinate or indeterminate, that was considered appropriate. It is these options that most retentionist countries now face.’
The three possible alternatives to the mandatory death penalty for murder are therefore:
- A mandatory sentence of life imprisonment, with the possibility of review of sentence
- A “whole life” term, also referred to as life without parole, or LWOP
- A discretionary sentence, which affords a judge power to suggest either minimum terms or to impose a “whole life” sentence
However, before these are examined, it should be noted that in Trinidad and Tobago, and in Barbados, because the overwhelming majority of those sentenced to death are not actually executed, there is in effect some form of alternative to the death penalty already in place. This can happen when:
- Persons have their sentence of death commuted through the prerogative of mercy
- Persons under sentence of death have their murder conviction affirmed but their sentence is substituted for life imprisonment (for example in cases where sentence has been reconsidered following a long period spent on death row)
- In cases where persons have their murder conviction substituted for manslaughter and a life sentence imposed as a penalty for this offence (although determinate sentences of considerable length were a more common penalty for those convicted of manslaughter, see Hood and Seemungal, 2006)
Death Row Conditions
For prisoners in the Caribbean – lengthy periods of time spent on death row also mean enduring inhumane and degrading prison conditions, as an overview of Death Row Conditions carried out by Death Penalty Worldwide confirms.
Poor conditions include:
- Physical torture
- Prisoner-on-prisoner violence
- Unsanitary conditions
- No healthcare
- Spread of infectious diseases
Mercy and Review of Life Sentences
In both Trinidad and Tobago, and in Barbados, sentences of death can be commuted to life imprisonment by executive bodies. In Trinidad and Tobago, the Advisory Committee advises on commutation of sentence. In Barbados, and the Privy Council of Barbados, acting as the Mercy Committee, provides a similar function.
Decisions of executive committees, like the Mercy Committee in Barbados, or the Advisory Committee in Trinidad and Tobago, have recently been held to standards of procedural fairness and greater transparency. Traditionally, there had been no requirement for such (see the case of De Freitas v Benny (1975) 27 WIR 318 in which it was held that mercy was an act of grace, and not a legal right).
In the case of Attorney General v Joseph and Boyce ( CCJ 1 AC) however, the Caribbean Court of Justice held that the process of mercy was subject to procedural safeguards.
Life sentences are generally indeterminate sentences of imprisonment, which means that there is no set term a prisoner must spend in prison prior to release. Instead, these sentences are subject to periodic review.
On the imposition of a life sentence in Trinidad and Tobago, section 281 of the Prison Rules stipulates when a life sentence becomes subject to review:
‘The case of every prisoner serving a life sentence shall be reviewed by the Governor in Council at the 4th, 8th, 12th, 16th, and 20th year of the sentence.’
However, in the 2012 Report by the Inspector of Prisons (the only annual report published so far) there is criticism for the failure to adhere to four-yearly reviews. At paragraph 73, the Report also states:
‘There is clear authority for the proposition that a life sentence without the possibility of release amounts to cruel and unusual punishment.’
The Report concludes that it is unclear if reviews are being carried out according to regulations.
At present, there is no parole board in Trinidad and Tobago for life sentenced prisoners.
Similarly, in Barbados, sentences of over four years duration are to be reviewed by the Governor-General at four-yearly intervals, this was provided for by section 42 of the 1974 Prison Rules. Recent controversy regarding the Mercy Committee’s decision to release convicted killer Oliver Archer demonstrated the potential of early releases to spark media attention (see this editorial from the Barbados Advocate, of 25 March 2016, ‘The quality of mercy’).
Regarding the possibility of lengthy life sentences without possibility of review, the cases of Frank Anderson Carter and Anthony Austin, in Barbados, demonstrate how problematic such sentences can be from a human rights perspective. In these two cases, sentence of death had been commuted to a term of life imprisonment with the condition that there would be no review of sentence or possibility of release before 30 years had elapsed. The men appealed that this was unconstitutional. In the High Court, these issues were upheld and the case went before the Court of Appeal which ordered the Governor-General to review the sentences. In December 2011, the two men were freed after 26 and 27 years in prison, following remission of sentence by the Mercy Committee.
From the research (Hood and Seemungal, 2006) we know that the overwhelming majority of persons convicted of murder in Trinidad and Tobago, and also in Barbados, are not executed. It is, as we have seen, very rare for hangings to take place in either country, and condemned prisoners have not been executed since 1999 in Trinidad and Tobago, and 1984 in Barbados. Therefore, the question of alternatives to the mandatory death penalty, and of how life sentences should operate is crucially important in the creation of an effective and efficient criminal justice system.