Fighting the death penalty in Trinidad

On 23 March the Privy Council gave long-awaited judgments in the cases of Lester Pitman and Neil Hernandez, intellectually disabled men who had been convicted of murder and sentenced to the mandatory death penalty in Trinidad.

The cases were heard by the Privy Council, the highest court of appeal in Trinidad and Tobago, in May 2016. Pitman and Hernandez, who had low IQs and were classified as intellectually disabled, brought appeals arguing that the imposition of a death sentence on someone with an intellectual disability amounts to cruel and unusual punishment and is prohibited by the common law and breached fundamental rights under the Trinidad constitution.

The appellants argued that the common law had developed with the progress of psychiatry and medical understanding and with modern standards of decency, and the prohibition on execution extended to those whose mental disability was such that a death sentence would constitute cruel and unusual punishment.

The board ruled that the execution of a person with severe mental disability would constitute cruel and unusual punishment, but that the mandatory nature of Trinidad’s death penalty required a court to impose a sentence of death if the statutory defence on grounds of diminished responsibility had not been shown.

Lord Hughes, delivering the judgment, said that any common law prohibition against executing persons with a mental disorder in Trinidad ‘must be measured by, and geared to, its own constitutional and legislative choices’. The court had no power to impose an alternative sentence, unless diminished responsibility had been made out.

However, Lord Hughes said that Trinidad’s rationale for introducing the defence of diminished responsibility was clearly to mitigate the strictness of the mandatory death penalty for those whose responsibility was reduced due to mental abnormality. It followed that Trinidad had recognised that the execution of a person with a mental disability would be unconstitutional, even if the defence had not been advanced or had not passed the diminished responsibility test.

Lord Hughes also found that developments in medical understanding meant that Pitman and Hernandez might be examples of ‘someone whose mental functioning is significantly impaired and therefore entitled to constitutional protection from the infliction of the death penalty’.

The board held, however, that the remedy where death has been imposed on a person of sufficiently impaired mental functioning is a grant of mercy by the president and a commutation of their death sentence. The board relied on the ‘existence of independent judicial control’ over the clemency process to act as a sufficient constitutional safeguard.

That said, the board held that mercy should not be restricted to those who would have been reprieved historically under common law, but must be exercised in a way that takes account of the developing understanding of mental disability. The board noted that a person with a ‘significant learning disability’ might fall within the remit of someone whose mental functioning is sufficiently impaired to entitle them to constitutional protection from the death penalty.

The board’s acceptance that the execution of a person with a severe mental disability is unconstitutional is to be welcomed. It does, however, make uncertain the position for offenders who have not met or not raised the defence of diminished responsibility.

In Trinidad, mental disability is often not discovered until the appellate stage, if at all. There is then the hurdle that admission of fresh evidence is a matter of discretion. Without legal power to challenge their sentences, prisoners are reliant on the president exercising his discretionary power to prevent their execution. Consequently, they could remain on death row for a significant time.

The board relied on the ‘existence of independent judicial control’ over the clemency process to act as a constitutional safeguard but, while the procedure is regulated, the board has previously ruled that the merits of the president’s decision are not reviewable.

This judgment makes clear that in Trinidad, absent a partial defence, the imposition of the death penalty on persons with intellectual disability is permitted and that their execution is prohibited. It remains to be seen, however, how effective the state will be at avoiding the execution of intellectually disabled prisoners and how long those prisoners must first remain under sentence of death before they are granted reprieve.

Katherine Buckle is a barrister at QEB Hollis Whiteman and was part of the appellants’ legal team

@QEBHW

www.qebholliswhiteman.co.uk