In a landmark ruling, the Privy Council in London has determined that the mandatory death sentence in The Bahamas is unconstitutional and has ordered that the cases of the two men who filed the appeal be sent back to the Supreme Court so their sentences could be reconsidered.
The high court quashed the death sentences of Trono Davis and Forrester Bowe. The Privy Council said that the section of the Penal Code that requires sentence of death to be passed on any defendant convicted of murder “should be construed as imposing a discretionary and not a mandatory sentence of death.”
Up to this point, anyone who was found guilty of murder in The Bahamas has been automatically sentenced to death.
The Bahamas hanged 50 men since 1929, according to records kept at Her Majesty’s Prison. There are 28 men under the sentence of death at’ the prison. Neil Brown, who was killed in the prison break in January, had also been on death row.
In its ruling handed down on Wednesday, the high court said that should the Supreme Court, on remission, consider sentence of death to be merited in either the Bowe or Davis case, questions will arise on the lawfulness of implementing such a sentence.
The Privy Council has long held that it would be inhumane to execute anyone who has been under the sentence of death for five years or more.
Forrester Bowe, who was one of four prisoners who executed a deadly escape plot at Her Majesty’s Prison in January, was convicted on February 25, 1998 of murdering Deon Patrick Roache.
Trono Davis was convicted on December 13, 1999 of murdering Jerrad Ferguson.
Philip “Brave” Davis, one of the attorneys who represented the condemned men, said the ruling has put to bed a serious question and he stressed that the ruling has not abolished the death penalty.
“What it means is that issue that has been troubling the judicial system and the legal system of The Bahamas for more than 20 years has now been settled,” Mr. Davis told The Bahama Journal. “What it is saying is that before the death penalty is to be imposed upon anyone convicted of murder, the judge or the court has the discretion to determine whether or not that ultimate penalty should be imposed.”
In response to the Privy Council’s ruling that the mandatory death sentence is unconstitutional, the Attorney General’s Office said only that, “the judgment is being fully considered and further announcements will be made in due course.”
One legal scholar told The Bahama Journal that each of the remaining men on death row can now take out a constitutional motion and ask the Privy Council to quash his sentence as well.
Davis and Bowe’s attorneys had argued that because the 1973 Constitution of The Bahamas has a savings clause, which in effect “saves” the laws that were in effect prior to the constitution coming into force, all laws before that point are still relevant.
The men’s legal team argued that capital punishment had already been found to be unconstitutional by various jurisdictions and there was universal acceptance that it was unconstitutional.
The team presented an elaborate overview of existing laws prior to the 1963 Constitution of The Bahamas, and contended that the section of the Penal Code that deals with the death sentence is inconsistent with both the 1963 and 1969 constitutions and that the section must be modified so as to conform with those constitutions by prescribing a discretionary instead of a mandatory death sentence.
The high court pointed to an earlier ruling that noted, “It has however been recognised for very many years that the crime of murder embraces a wide range of offences of widely varying degrees of criminal culpability.
It covers at one extreme the sadistic murder of a child for purposes of sexual gratification; a terrorist atrocity causing multiple deaths or a contract killing, at the other the mercy-killing of a loved one suffering unbearable pain in a terminal illness or a killing which results from an excessive response to a perceived threat. All killings which satisfy the definition of murder are not equally heinous.”
Another ruling cited said, “It is practically impossible to lay down an inflexible rile
by which the same punishment must in every case be inflicted in respect of every crime falling within a given definition because the degrees of moral guilt and public danger involved in offences which bear the same name and fall under the same definition must of necessity vary.
It’s the point that the legal team for Bowe and Davis had been arguing.
The Privy Council said it was satisfied that the Court of Appeal in The Bahamas had jurisdiction to entertain these appeals “and regrets that it has not, in the event, enjoyed the benefit of the Court of Appeal’s opinions on the important issues at stake”.
Attorneys for Bowe and Davis had argued that even if the mandatory death sentence were accepted as constitutional and so protected despite being inhumane and degrading, it would be unconstitutional to carry out the act of execution.
But the Privy Council shot down that argument saying it would be absurd to hold that the sentence is constitutional, but giving effect to it is not.
“They must stand or fall together,” the ruling said. The Privy Council heard the case in December.
The Bahama Journal
