“[…] We subscribe to a criminal justice system which is fair though not infallible. What the abolitionists must bear in mind is that if a man is really innocent, it is better that he be executed than be incarcerated for life; for that man—knowing he is innocent—would live a life of misery and may even wish that he were dead.
“Also, under our criminal justice system, it is 100 times more likely that a guilty person could be acquitted than an innocent person be convicted for murder…”
The following is an abridged version of the submission by Israel Khan SC, 28 years ago, before the Prescott Commission of Inquiry into the Death Penalty:
Mr Chairman and other members of the Commission, I wish to respectfully submit, on my own behalf, that the death penalty should be retained for deliberate, wicked, evil and atrocious murders, while appropriate punishment, from reprimand and discharge up to life imprisonment, be imposed for other murders.
Thus I recommend for your consideration: (a) the jury should be given the prerogative, in all cases of murder, to recommend to the learned trial judge that the convicted murderer in a particular case be executed.
I want to make it quite clear that I am aware of the fact that the classification of murders for sanction of the death penalty as outlined would entail some difficulty because the adjectives used to describe such classification are relative terms.
Where do we draw the line? What might be deliberate, wicked, evil and atrocious today might not be so tomorrow; or what might be excused as not being deliberate, wicked, evil and atrocious may not be so excused tomorrow.
But this apparent weakness is the strength of my argument for such a classification, because I am of the firm view that Trinidad and Tobago must decide what sorts of murders it is willing to tolerate and excuse so far as the death penalty is concerned. Twelve ordinary, God-fearing, decent and upright citizens of this country would set the standard at any given time in our history.
And an accused convicted by a jury for a deliberate, wicked, atrocious and evil murder and facing a death sentence will continue to have the right to appeal his conviction and sentence of death to the Court of Appeal right up to the Privy Council. Also, the Mercy Committee will continue to decide whether the sentence of death should be commuted to life imprisonment.
What more can a convicted murderer ask for? What more can the abolitionists plead for?
I concur with the abolitionists that our criminal justice system could make mistakes and it is possible that a completely innocent man could be convicted for a deliberate, wicked, evil and atrocious murder and thus be executed.
In all matters where human beings must have an input, there could be mistakes, but this is the risk that a civilised society must be willing to take in order to maintain peace, order and good government. We subscribe to a criminal justice system which is fair though not infallible.
What the abolitionists must bear in mind is that if a man is really innocent, it is better that he be executed than be incarcerated for life; for that man—knowing he is innocent—would live a life of misery and may even wish that he were dead.
Also, under our criminal justice system, it is 100 times more likely that a guilty person could be acquitted than an innocent person be convicted for murder.
What the abolitionists must also bear in mind is that an accused person is presumed to be innocent and the onus of proving his guilt rests with the prosecution. They should also recognise that the prosecution can only prove that an accused is guilty if the evidence before the jury is credible, cogent, compellable and convincing.
In other words, the evidence for conviction must be of a very high standard that it should convince 12 ordinary God-fearing persons that the accused is guilty beyond all reasonable doubt.
Also, if there is more than one inference of equal weight which could be drawn from any given fact, the one that is more favourable to the accused must be drawn. Further, there are certain judicial guidelines to be given by the learned trial judge to the jury depending on the evidence.
For example, if the evidence against an accused hinges on identification and nothing else, the judge must warn the jury about the fallibility of identification evidence and that an honestly mistaken witness can be convincing.
If the evidence comes from a witness who has an interest to serve, that evidence must be taken with a pinch of salt, and if there is a technical lacuna in the evidence the accused would benefit from it.
In taking my leave, I wish to mention three points: (i) It is a fallacy to say that the death penalty has failed to stop the increase in murders. No one knows. (The probabilities are that the increase in murders would have been higher if the death penalty was totally abolished.) What we do know is that the abolition of the death penalty has not decreased the murders in those countries which have opted for abolition;
(ii) Hanging should be replaced by a more humane and less cruel form of execution, eg lethal injection;
(iii) The death penalty for treason should be abolished and only be maintained for deliberate, wicked, evil and atrocious murders.
It is quite true to say that the death penalty is the premeditated and cold-blooded killing of a human being by the state. A civilised society cannot afford to be emotional and to build castles in the sky. At this point in our history, we cannot afford to use scarce resources in an attempt to cure or reform a cold-blooded murderer.
It is true that the ideal state, the utopia we should all strive for, is a civilised society in which we could afford the luxury of not executing an accused found guilty of a deliberate, wicked, evil and atrocious murder.
The general will of the people must prevail, not that of so-called ‘enlightened leadership’, if we are to prevent a return to a state of nature where man would be against man; and life would be ‘poor, nasty, brutish and short’.