Barbados is one of the few countries globally that retains the mandatory death penalty for murder. Although the government has committed to abolishing the mandatory penalty, it remains on the statute books, and all those convicted of murder are still sentenced to death according to section 2 of the Offences Against the Person Act 1994.
This renewed commitment to reform comes after resistance from Barbados to attempts to curtail the death penalty. For example, in response to the various rulings of the Privy Council which sought to set minimum standards for the implementation of the death penalty (see section on ‘Human Rights‘ for more on this), the Constitution (Amendment) Act 2002 was enacted to remove restrictions on the use of the death penalty. The legislation removed various grounds of appeal including delay and prison conditions, effectively legislating against the previous judgments, and protecting the operation of the death penalty in Barbados. Barbados subsequently withdrew from the appellate jurisdiction of the Privy Council in London and joined the Caribbean Court of Justice.
However, subsequent rulings from the Inter-American Court of Human Rights held that Barbados cannot amend its Constitution to insulate the death penalty process from constitutional challenge. The Boyce and Cadogan rulings from this Court have also held that the mandatory death penalty for murder violated the right to life. The Court found that the mandatory penalty was arbitrary, and therefore violated Articles 4(1) and 4(2) of the American Convention on Human Rights.
In January 2018, the Caribbean Court of Justice will hear the appeal of two death-sentenced prisoners. The two appellants, Jabari Nervais and Dwayne Severin, were sentenced to death in 2012 and 2014 respectively (you can watch the proceedings here).
Despite judgments which have held the mandatory death penalty in Barbados to be unconstitutional, the Constitution of Barbados has a ‘savings clause’ at section 26 which protects from challenge all written laws which were in effect at the time of independence (see ‘Savings Clauses‘ section). In order to reform the law on the death penalty then, it is necessary for Barbados to pass a law.
Barbados has now committed to abolishing the mandatory death penalty. This commitment was given by the Attorney General in May 2009. In March 2014, Barbados again confirmed its intention to abolish the mandatory penalty and the Offences Against the Person (Amendment) Bill 2014 was introduced. However, no further developments have occurred.
The Offences Against the Person (Amendment) Bill 2014 would abolish the mandatory death penalty for murder by creating a discretionary death penalty, under which persons could be death sentenced or sentenced to imprisonment for life. Under this framework, a person could be sentenced to death where:
- The murder was committed with a high level of brutality, cruelty, depravity or callousness;
- The murder involved calculated or lengthy planning;
- The deceased was involved in the administration of justice, i.e. a judge;
- The deceased was a police officer;
- The murder was a ‘hate crime’ based on membership of a certain ethnic, religious group etc;
- The deceased was a witness or a juror;
- The deceased was vulnerable through age, disability etc;
- The offender was convicted of 2 or more offences of murder;
- In the opinion of the court there are other exceptional circumstances which must be taken into account.
However, from the wording of the Bill, it would seem that even the presence of an aggravating factor in this list does not mean that a death sentence is automatic.
Under this legal framework, the imposition of a life sentence would result in either:
- Life without the possibility of parole when the court is satisfied that the offender poses a serious danger to the public;
- Or, life imprisonment with the possibility for the grant of a release order.
Where a person is sentenced to death under the 2014 Bill, but more than five years elapses following sentence, that person shall have sentence commuted to life without the possibility of parole.
Other Bills currently before Parliament for consideration include the Penal System Reform (Amendment) Bill 2014 which would provide guidance to judges on the consideration of aggravating and mitigating factors at the sentencing stage. The Prisons (Amendment) Bill 2014 which would abolish corporal punishment in prisons. Further, the Bill would also see a prisoners’ release board established and would provide for the early release of prisoners in certain circumstances. The Criminal Procedure (Amendment) Bill 2014 would introduce mandatory psychiatric evaluations for all those appearing before the High Court on a murder charge. Finally, the Constitution (Amendment) Bill 2014 proposes an amendment to the Constitution of Barbados which could facilitate the discretionary system of sentencing for people convicted of murder. Amnesty International (2015) has, however, expressed concern that this Bill would set restrictions on the rights of condemned persons to appeal their sentence on the ground that it constitutes torture, or cruel, inhuman or degrading punishment.