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By Larry Smith

Thursday, June 23, 2011.

The Privy Council's recent ruling to overturn the death sentence of convicted murderer Max Tido has reignited the smouldering debate over capital punishment in the Bahamas.

In dismissing an appeal against conviction, the Privy Council said there was "overwhelming" evidence against Tido, so "a finding of guilt was inevitable" - despite noting that the defendant should have been identified first in a line-up, and not while alone in the dock, and that there should have been a psychological determination that he was sane at the time of the murder.

But the judgment also concluded that this was not a murder that warranted the most extreme punishment of death. This conclusion was based on what the Privy Council viewed as "established law" - that the death penalty should be reserved only for the most extreme and exceptional cases, and only where there is no prospect of reform of the offender.

Cases where the death penalty is justified, it said, are "those in which the murder is carefully planned and carried out in furtherance of another crime", such as armed robbery, rape, human smuggling, drug wars, kidnapping, witness intimidation, "and the killing of innocents for the gratification of base desires." As a result, Tido's case is being sent back to the Court of Appeal in Nassau for "the imposition of an appropriate sentence."

Max Tido was found guilty in 2006 of the murder of 16-year-old Donnella Conover after testimony that the teenager was lured from her home in the early morning hours of May 2, 2002, and brutally beaten to death off Cowpen Road. He later received a discretionary death sentence, but after appeals for clemency were denied in 2007 and 2009, lawyers took the case to the Privy Council.

This has produced the usual outcries from those who believe that hanging is the only solution for crime in the Bahamas. In fact, it appears that most Bahamians share a biblical attachment to execution as a response to violent crime, although judges have been chipping away at the practice for years.

Until the late 19th century, the “long drop” (as hanging was known) was the penalty for hundreds of crimes - including shoplifting, poaching and “being in the company of gypsies”. But these days, the penalty is reserved for the most serious offences – like aggravated murder or treason - and is viewed by most countries as an exception to be accompanied by stringent safeguards.

The arguments in favour of hanging focus on deterrence and retribution. Donnella Conover's father said her killer deserved to die, and warned that the Privy Council's decision would lead to vigilante justice. And according to Bishop Simeon Hall, "We can no longer remain philosophical about sending the strongest message to the criminal element. We need to hang a few."

But there are strong arguments that the death penalty in and of itself does not deter crime. Many experts believe such a punishment is only effective if applied with certainty and without delay, whereas due process combined with the gross inefficiency of our judicial system blunts any perceived connection between the crime and the penalty. In other words, violent crime cannot be ‘fixed’ simply by executing a few murderers every now and then.

The Bahamian political class is probably more sophisticated than the wider public on the hanging issue. For example, both Hubert Ingraham and Perry Christie have found it politic to support hanging during periods of public outcry against crime, but many suspect they are not expressing their true feelings.

According to defense lawyer Wayne Munroe, if politicians were serious they would take steps to limit appeals and prescribe uniform sentencing. In 2006, former FNM cabinet minister Carl Bethel said much the same thing when he was in opposition, noting that if then Prime Minister Perry Christie wanted capital punishment (as Mr Christie claimed he did) "he would have to bring some laws to parliament."

Prime Minister Hubert Ingraham recently said the government will soon introduce legislation to deal with “the question of the imposition of the death penalty in The Bahamas”. But it is unclear whether the legislation would specify that appeals be filed within a certain period of time. An appeals process without any time limits means that the five-year period for executions set by the Privy Council in 1998 often runs out.

There were 17 murderers on death row in 2006, when the Privy Council abolished the mandatory death sentence in the Bahamas, requiring all of them to be re-sentenced at new hearings. Today, there are five convicts waiting to be hanged with their cases at various stages of appeal. And if they remain on death row longer than five years, they can no longer be executed because such a delay is considered cruel and unusual punishment in and of itself.

Fifty men have been hanged here since 1929. Five under the previous Ingraham administration; 13 under the Pindling government; and the remainder between 1929 and 1967. The last man to be hanged was David Mitchell, in January 2000. Another man was scheduled for execution at the same time, but he committed suicide first.

Perhaps the best (or worst) argument against the death penalty is the certainty that innocent people will be executed, and there is no possible way of compensating them for this miscarriage of justice. In fact, one of the last people hanged in Britain was a mentally handicapped teenager who was later awarded a posthumous pardon.

In America, most of those executed were unable to afford a trial lawyer. And studies have shown the death penalty to be racially biased. For example, in Florida, experts say a black man convicted of killing a white man is five times more likely to receive a death sentence than a white man convicted of killing another white man.

A study of hundreds of criminal cases in which the convicted person was exonerated suggests there are thousands of innocent people in American prisons today. And the leading causes of wrongful convictions for murder were false confessions and perjury by co-defendants, informants, police officers or forensic scientists.

By most accounts it is highly unlikely that a handful of executions following years of delay will have any real deterrent effect. If we are really serious in our desire to reduce crime through harsher punishments alone, executions must be carried out without delay and with sufficient publicity to get the message across to other similarly minded people.
For capital punishment to really reduce crime, every one of us must realise that we will personally and without doubt be put to death if we commit particular crimes, and that there can be absolutely no hope of reprieve.

The 2006 Privy Council ruling that abolished the mandatory death sentence brought the Bahamas in line with evolving world standards. The United Nations says that a mandatory death penalty, which precludes the possibility of a lesser sentence regardless of the circumstances, is inconsistent with the prohibition of cruel, inhuman or degrading treatment or punishment.

But many still believe there is no substitute for the best defense. Capital punishment not only forever bars murderers from killing again, it offers some retribution for their terrible crimes. It would also save money that could, perhaps, be spent on better things than keeping killers in prison.

If we agree that executions are a necessary form of retribution, then we should do what is necessary to achieve the desired outcome. If the consensus is that capital punishment is not a useful or appropriate tool except in the most heinous of cases, then we should speak clearly on the issue.

Judges in The Bahamas do not currently have the statutory authority to determine how many years a prisoner must serve before he is eligible for parole. Persons sentenced to life imprisonment have served from 10 years to their entire lives in prison.

We agree with a recent Tribune editorial that called for changes in the law to prevent capital offenders sentenced to life imprisonment from ever receiving parole. "it is now up to our legislators to redefine the meaning of 'life' in cases such as this," the editorial said. "In future 'life' should no longer mean 25 years with good behaviour, but full life, with the prisoner leaving his cell only when the undertaker arrives to take him to the graveyard."

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