Hanging Delayed is Hanging Denied: Abolish the Dysfunctional Death Penalty

Gallowsmlhradio / FoterThe
July 16
decision
by U.S. District Judge Cormac J. Carney declaring
California’s death penalty unconstitutional offered a stark
assessment of the Golden State’s dysfunctional capital punishment
system. Judge Carney noted only 13 of the more than 900 people
sentenced to death since 1978 have actually been executed—primarily
because the average appeals process in a capital case takes “25
years or more” to complete. For example, Ernest Jones, the death
row inmate whose lawsuit prompted Judge Carney’s decision, waited
nearly eight years for the California Supreme Court to hear his
initial appeal. It took four years just for the state to provide
him with an attorney to handle the appeal.

Judge Carney acknowledged “courts had thus far generally not
accepted the theory that extraordinary delay between sentencing and
execution violates the Eighth Amendment,” which prohibits “cruel
and unusual” punishment. But in accepting that theory now, Judge
Carney joined a substantial body of death penalty jurisprudence
from the British Commonwealth. While the United Kingdom, like all
European Union members, forbids the death penalty within its
borders, a group of British judges continue to oversee death
penalty cases from the English-speaking Caribbean, where execution
by hanging remains the statutory penalty for murder.

The Five-Year Rule

In 2008, a jury in the island nation of Trinidad and Tobago
convicted Julia Ramdeen of the 2003 murder of Carlos Phillip.
Phillip hired Ramdeen, a call girl, to organize a threesome with
another woman. According to Ramdeen, Phillip arrived at her
apartment for their rendezvous in a drunken and aggressive state.
He grabbed her by the throat. She responded by hitting him in the
head with a brick. A fight ensued. Ramdeen admitted to police she
then repeatedly stabbed Phillip until he was dead.

Prosecutors presented an alternate theory, relying on a witness
testifying under immunity. This witness claimed he, Ramdeen and
another man lured Phillip to the apartment in order to rob him. The
three ended up killing Phillip together and disposing of his body.
The jury believed the witness, and Ramdeen and the other alleged
conspirator received death sentences.

Ramdeen’s appeal focused on whether the trial judge properly
instructed the jury as to the law. In 2010, the Court of Appeal of
Trinidad and Tobago dismissed the appeal and said Ramdeen’s
execution could proceed. Ramdeen made her final appeal in 2012 to
the Judicial Committee of the Privy
Council
(JCPC), the London-based court which retains
jurisdiction over criminal appeals from Trinidad and Tobago and
eight other former British colonies in the Caribbean.

On March 27 of this year, a five-judge Board of the JCPC
unanimously
rejected Ramdeen’s appeal
of her conviction. Like the Court of
Appeal, the Board found no legal error in the trial judge’s jury
instructions, concluding they “were clear, fair and appropriate.”
Nevertheless, the Board, by a vote of 3-2, commuted Ramdeen’s death
sentence to life imprisonment. Why? Because in the course of
litigating the JCPC appeal, more than five years elapsed since the
trial court imposed its death sentence. And under a 1993 JCPC
decision, executing a person after that long a delay amounts to
“inhuman” punishment, which is barred under Eighth Amendment-like
provisions of the constitutions of Trinidad and Tobago and the
other Caribbean nations where the Privy Council retains
jurisdiction.

This five-year rule comes from a Jamaican case. Earl Pratt and
Ivan Morgan were sentenced to death in 1979 for a murder committed
two years earlier. After a number of delays—and three stays of
execution—the JCPC heard Pratt and Morgan’s appeal in 1993. By that
point, the men had been in prison for 16 years.

A seven-judge Board of the JCPC commuted the death sentences.
Lord Hugh Griffiths, writing for the Board, said any execution
carried out more than five years after sentence was presumably
“inhuman or degrading,” and therefore unconstitutional:

There is an instinctive revulsion against the prospect of
hanging a man after he has been held under sentence of death for
many years. What gives rise to this instinctive revulsion? The
answer can only be our humanity; we regard it as an inhuman act to
keep a man facing the agony of execution over a long extended
period of time.

The
Pratt and Morgan
decision
immediately commuted more than
200 death sentences imposed by courts in Jamaica, Trinidad and
Tobago, and Barbados. (Pratt was actually
released from prison in 2007
, after serving more than 30
years.) In the two decades since then, the Privy Council’s
five-year rule has effectively ground the death penalty to a halt
in the English-speaking Caribbean. For instance, Trinidad and
Tobago held its last execution in 1999, despite currently having
approximately three dozen death row inmates. According to a

2012 Amnesty International report
, only the Bahamas and St.
Kitts and Nevis have managed to carry out any death sentences since
2000.

Is Abolition Preferable?

Ultimately, the death penalty has no place in a modern judicial
system. Executions were meant to exact swift, brutal punishment
against heinous criminals. But while hanging may continue to enjoy
support among Caribbean governments, the American public has
clearly lost its appetite for such brutality. Ninth Circuit Chief
Judge
Alex Kozinski
recently observed California’s use of lethal
injection “is a misguided effort to mask the brutality of
executions by making them look serene and peaceful.” He said if
states insisted on continuing capital punishment, they should stop
sugarcoating it and employ “more primitive—and foolproof—methods of
execution.” He suggested, one hopes facetiously, a return to the
firing squad.

As for swiftness, there was a time when a delay of a year or two
would have been considered egregious in a death penalty case. Lord
Griffiths noted in the Pratt and Morgan decision English
law once required execution the day after conviction. Even as late
as 1950, British executions took place within three to six weeks of
sentence. That is no longer practical for any court system, much
less one as backlogged as California’s. While some reactionaries
may continue to argue this is the fault of defendants and their
lawyers seeking to delay justice, the truth, as both Judge Carney
and the Privy Council know, is the courts are too overwhelmed to
deal with death penalty appeals in an expeditious manner.

The Privy Council, in what might charitably be deemed an act of
judicial desperation, simply made up the five-year rule out of thin
air. The Pratt and Morgan decision offered no explanation
for stopping the clock at five years rather than four, six, ten or
any other number. Furthermore, the Pratt and Morgan Board
severely criticized Jamaica’s court system for exhibiting a level
of dysfunction that mirrors California’s today.

By contrast, the Ramdeen case involved no unusual delay or
judicial maladministration. The five-year deadline only expired
because the Privy Council chose to grant a discretionary appeal,
which it then turned around and dismissed as baseless. The fact two
judges dissented from the commutation of Ramdeen’s death
sentence—and dissents of any sort are unusual in Privy Council
cases—suggests the majority may have engaged in anti-death penalty
activism for its own sake.

Judge Carney’s approach is much cleaner. He simply declared the
death penalty unconstitutional without attempting to fashion an
arbitrary time frame for completing the appeals process. His
arguments may not survive appeal to the Ninth Circuit or the
Supreme Court, but his detailed condemnation of California’s death
row dysfunction should not be ignored. Judicial abolition is the
only practical solution to the interminable death row appeals
process. Merely putting a clock on the death penalty, as the Privy
Council has done, is not a satisfactory alternative. Adopting such
an approach in the U.S. would only encourage prosecutors (and
pro-death penalty judges) to take shortcuts with a defendant’s
constitutional rights to ensure any deadline is met.