Despite Justice Walker's appeal, lawyers firm on Sentence Reduction Day

BY TANESHA MUNDLE
Staff reporter
mundlet@jamaicaobserver.com

Sunday, April 22, 2018

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LAWYERS have again come out in support of the Sentence Reduction Day initiative and have dismissed any notion for it to be scrapped amidst stubborn opposition by retired judge of the Court of Appeal, Clarence “Billy” Walker.

Walker, who spent over 40 years in the legal and judicial fraternity as a prosecutor and judge, is again calling for the initiative to be discontinued in its current form.

Sentence Reduction Day allows accused persons to plead guilty and so become eligible for up to a maximum of 50 per cent discount on their punishment, and is among several measures implemented by the court to reduce the many cases listed for trial.

But Justice Walker, one of the strident critics opposing the measure, first called it to be scrapped last December when he described it as a “a diabolical, misguided concept which smacks of the distasteful commercialisation of our hallowed, sacrosanct justice system”.

And last Monday, in a letter to the editor of the Jamaica Observer, he again reiterated his call for the initiative to be terminated, saying that it curtails the discretion of judges. He also noted that some accused, based on the “extreme savegery” of their crimes, should not benefit from a sentence discount.

But lawyers who spoke to the Sunday Observer said that they are not in agreement with Walker's call for it to go. Some, however, conceded that it might require some amount of tweaking, but hailed it as a good measure.

Veteran attorney C J Mitchell said: “Persons in society who like to pat themselves on the back that they have never done anything wrong therefore will never go to lock-up. They can take the attitude that he should get greater punishment, but from an accused man's standpoint, who sees that he can get some sort of redemption in the reduction of his sentence, I'll say go for it.”

Further to that, Mitchell said it is important to note that discretion as to how much sentence is given is still left up to the judges, who he said will not give ridiculously short sentences so that a mockery is made of the system, though there might have been instances where a judge had imposed a sentence that was too lenient.

But despite the criticism levied at Sentence Reduction Days, Mitchell said it is simply a mere formalisation of what is already on the books.

“Even without Sentence Reduction Day, the law is that a man who pleads guilty immediately and automatically gets a substantial reduction on his sentence anyway, even without Sentence Reduction Day,” he explained.

All in all, Mitchell said, “the (retired) judge is entitled to his opinion, but he is not an accused man. He has never sat where an accused man has sat, he has never stood in the dock where an accused has stood, he has never suffered the indignities, the difficulties and hardship that an accused has suffered.”

At the same time, Mitchell stressed that he was not saying that an accused should be mollycoddled, but he suggested that the conditions under which prisoners are housed is unbearable and the initiative not only reduces the case backlog, but saves the country substantial amounts of money when prisoners are released instead of being imprisoned.

Further, Mitchell said there is a deep degree of hypocrisy in those who are opposed to sentence reduction, because when it's their family on the receiving end they want every benefit possible.

A similar view was expressed by attorney Michael Williams.

“I disagree that Sentence reduction in its current form should be stopped,” he said.

The general rule is that sentencing should reflect the nature of the crime and each individual case should be judged on its own merit.

“One man might kill a man in the heat of the moment, another might do so after a week of planning,” he said.

Williams also stated that he does not share the view that the judges are restricted, as currently they are given a lot of freedom under sentencing guideline.

“There are a lot of defendants who would plead guilty if they knew ahead of time what the range of sentencing will be. That's why Parliament sought to enact the Plea Bargain Act. We can't lock up everybody. We don't have no space to keep them.

“And I am unequivocal when I say the state of our current cells are not fit for human habitation in many instances. We have no business locking up people in those conditions as it dehumanises the prisoners and it dehumanises the people who have to watch over them,” Williams further stated.

“I absolutely disagree with any notion of scrapping it or taking it back,” said attorney-at-law Tamiko Smith.

“If it is that you are eligible to up to 50 per cent, then clearly it is up to the judge's discretion whether or not you will be getting 50 per cent or not. And if the judge says 'I am sorry', but based on the prosecution's case even though you've pleaded guilty your actions were so egregious, it was so unconscionable that you are not eligible and in this case not appropriate for 20 per cent”, then the judge is not going to give you the 20 much less 50 per cent. So I don't see where it's curtailing their discretion when it is entirely in their discretion,” Smith said.

She also pointed out that there was nothing perfect in the country's justice system, but at the same time she said every initiative has been thought through and stakeholders have been consulted.

“You are not going to get the most perfect legislation or rule. You have to see how best you can apply it. If any adjustment is to be made, then those stakeholders can make the adjustments,” Smith noted.

Another attorney-at-law, Kerry Ann Duhaney, also expressed her support for the initiative. She said that she was in agreement for it to be adjusted so that it is not primarily seen as a reward for criminals.

“The fact that a criminal enters a guilty plea for the sole purpose of a reduction of his sentence will always be appreciated by criminals, but will serve as a dagger to the hearts of the victims. To combat this, I strongly believe that only a third or a quarter of the sentence should be shaved off. Where possible, restitution should be considered for families,” she reasoned.

Kerona Spence, another lawyer, also agreed that not all accused should be eligible for sentence reduction. However, she said she does not support the view that it should be discontinued as it was not something that came up overnight.

“As with everything you'll have hiccups, but you just have to fix it as you go along,” Spence stated.

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