The Tribune

By EARYEL BOWLEG

Tribune Staff Reporter

ebowleg@tribunemedia.net

Attorneys have raised concerns about proposals to remove judicial discretion and mandate the death penalty in The Bahamas, describing such changes as a threat to the rule of law and constitutional democracy.

At a public forum hosted by The Bahamas Bar Association in collaboration with the Eugene Dupuch Law School, legal professionals discussed the implications of making the death penalty mandatory. Among the speakers was Damian Gomez KC, who warned that calls for constitutional changes to enforce a mandatory death penalty undermine the value placed on life and the principles upheld by the rule of law.

Mr Gomez argued that such measures would contradict the notion of The Bahamas as a constitutional democracy governed by the rule of law. He emphasised the role of the courts as a safeguard against majoritarian abuses, particularly for marginalised groups.

“Is this the type of society that desires to hang in the balance the lives of the poor, the dispossessed, on the issue of having access to the courts merely on the basis of whether they’re able to afford a good lawyer, or whether, by some luck, the court is appointed as a freebie, so to speak, a crown brief and the chap is interested in winning?” he asked.

He also highlighted the potential impact on cases involving self-defence, where the absence of judicial discretion could lead to disproportionate outcomes. “There are many cases, for instance, where self-defence rests on the razor-thin circumstance of whether you believe, as a member of the jury, that reasonable force and only reasonable force had been exercised... If you are unfortunately a shade over the reasonable one in a mandatory death sense scenario, it doesn’t matter,” he said.

Defence counsel Tai Pinder-Mackey echoed similar concerns, citing the risk of errors in the justice system. She noted her 16 years of experience handling such cases and pointed out fluctuations in murder rates, which she argued show no clear correlation with the presence or absence of the mandatory death penalty.

She referenced data following the last execution in The Bahamas, the hanging of David Mitchell in January 2000. “In that same year of 2000, there was a significant increase in the murder rate of 53.52 percent from the previous year, and the mandatory death penalty was still in place,” she said. “Similarly, after the mandatory death penalty was removed in 2006, there was a decrease in the murder rate in 2008, 2012, [and] 2016. So it is my humble opinion, the focus ought not to be on the death penalty, but the focus ought to be on the prevention of dangerous crimes.”

Former senator and criminal defence attorney Renward Henfield stood out as the sole speaker in favour of the death penalty, arguing it serves as a deterrent despite a lack of conclusive evidence. “If you go online, it actually is phrased that there is no convincing proof that the death penalty deters crimes, not that there’s no evidence... but it’s phrased there’s no convincing evidence by the writer,” he said. He added that criminals fear the consequences of “the law of the land” more than they fear law enforcement.

Henfield’s position resonated with many attendees, including Benjamin Dames, a cousin of Donnell Conover, the teenager whose death led to the Privy Council’s landmark “worst of the worst” ruling in 2011. Mr Dames passionately supported capital punishment.

Other speakers, such as Professor Carsten Zatschler, SC from the Bar of Ireland, urged caution and reflection. He warned against adopting an “eye for an eye” mindset and stressed the importance of procedural safeguards in decisions about capital punishment. “The general question... needs to be well considered, not a knee-jerk reaction to recent events... Ideally, there ought to be procedural safeguards to ensure [the issue] does not fall victim to some social media campaign, some populist campaign,” he said.

Professor Zatschler concluded by emphasising that no law should mandate the application of the death penalty under any circumstances.