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MAX TIDO AND THE DEATH PENALTY IN THE BAHAMAS
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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