Plea-bargaining and the search for justice, interesting piece

Canute S. Thompson

The issue of plea-bargaining was brought into public discussion some months ago in a matter involving a local politician and a co-accused. The matter has once again been brought into the spotlight with a reported declaration by High Court Judge Martin Gayle carried in The Sunday Gleaner of April 19, to the effect that plea-bargaining would significantly reduce the backlog of cases and save judicial time. This issue is worthy of public debate.

A plea bargain is an agreement between the prosecutor and the accused in which the accused pleads guilty in exchange for a lesser sentence or a reduced charge. In practice, either side may begin negotiations over a proposed plea bargain, though obviously, both sides have to agree for it to happen.

Plea-bargaining has not yet been enacted into law here in Jamaica but was approved by the Senate and the House of Representatives in 2005 by a unanimous vote under what is called the Criminal Justice (Plea Negotiations and Agreements) Act, 2005. If enacted, the legislation would give the director of public prosecutions (DPP) legal authority to engage in discussions and make bargains with an accused. The measure was introduced here in Jamaica in order to give the State greater room to deal with organised criminal gangs.

PRACTICAL CONSIDERATIONS

The practice of plea-bargaining seems to be informed by practical considerations. I have a concern that issues of ethics seem missing from consideration. The practical considerations are:

(a) Defendants can avoid the time and cost of defending themselves at trial, the risk of harsher punishment, and the publicity a trial could involve.

(b) The prosecution saves the time and expense of a lengthy trial.

(c) Both sides are spared the uncertainty of going to trial.

(d) The court system is saved the burden of conducting a trial on every crime charged as the amount of time that would be involved in hearing all cases would be very onerous for the public.

While the practicality of these considerations cannot be overlooked, the seeming absence of a focus on the victims and the implications for the maintenance of law and order in the society as it relates to the social assessment of criminal action is unfortunate.

ISSUES OF ETHICS AND JUSTICE

The issues of ethics and justice that the practice of plea-bargaining raises includes:

(a) The charges against any accused are a matter of public information, but the bargaining is essentially a private process. Why should this be? Whose interest does a DPP serve when he/she enters the negotiations with an accused? Can a prosecutor really act in the interest of the affected party or parties when he/she is under no obligation to bargain in any one's interest or when he/she may choose to bargain in the interest of some other party, whose interest may or may not be the public's interest?

(b) Quite apart from whether there should be private bargaining is the more fundamental question of whether there should be any bargain at all. I have a deep sense that something is wrong when a person accused of a heinous crime is given the opportunity to manipulate the process by opting to offer up information on others (which is the real consideration in decision to enact the legislation) in exchange for leniency. What if an accused has layers of information needed by the State? He/she offers the first layer and lands a considerable reduction in the sentence, thereafter begins to tug at the prosecutor that he could do more for the system for an even better deal. The probable outcome is that this accused could then be out of prison sooner to enjoy the ill-gotten wealth. How does that serve the cause of justice?

(c) Plea bargains are also perceived as offering the accused a freedom of choice between a lesser and greater punishment in return for information or cooperation in further investigations against others. Does not the offering of that freedom of choice send the signal that the crime committed is not as crucial as it appeared and the capture or imprisonment of another more important than the crime committed by the one doing the bargaining?

(d) How does a prosecutor decide with whom to bargain? What are the criteria and who sets those criteria? Should there be a role for the public's input?

There is a role for leniency and mercy but the process must be transparent. Plea-bargaining is not a transparent process.

Dr Canute Thompson is assistant vice-president at the International University of the Caribbean. He may be reached at canute_thompson@hotmail.com

Sizzla show stopped in Canada

as gleamed from Norman Faria's Guyana Chronicle article 19.04.09

Last weekend, Jamaican-born reggae star Sizzla was supposed to headline a concert at the Paramount Theatre in Toronto, Canada.

He didn't even pack his bags. The Canadian Embassy in Jamaica had denied him a visa, apparently because of his songs inciting hatred and violence against homosexual people. They were quite right to do so.

Sizzla (real name Miguel Orlando Collins) was known to Canadian authorities. He and another unrepentant homophobe at the time "Elephant Man" (real name O'Neal Bryan) had another concert in another venue in the same Canadian city in October 2007 cancelled after protests from community groups. A homophobe is an irrational disliker of homosexuals.

As spokesperson for the Stop Murder Music Canada Coalition correctly noted: "This (stopping of this show) was not about censorship or artistic freedom. That stops when hate propaganda is involved." The SMMCC referred to one of the songs "Log On" which urged people to "stomp" on homosexuals (battyman/chi chi man or "gays" as they are commonly referred to).

Homosexuality (lesbianism) is a sensitive and emotional issue. The average person in liberal democratic societies like Guyana and Barbados sometimes have difficulty in understanding it. After all, being called upon to accept men and men together and women and women together, especially sexual acts, goes against the grain of all they were taught from Biblical and other holy book teachings.

It took some understanding from the average man, like myself, who felt that nothing could be more normal (and pleasurable) than man having sex with a woman. After all,it made physical sense. That was how people evolved to have children.

It took some time but the average person's essential decency and respect for other people's rights emerged.

Now, there is a growing acceptance in many countries that homosexuals have a right to live normal lives so long as their behaviour doesn't involve or encourage criminal and sexually unsafe practices. More importantly, that the behaviour of gays should be sensitive to the feelings of ordinary people about the issue. A growing understanding about gays and their place in society comes too as more scientific studies show gays to be that way because of such factors as genes rather than being a psychological disorder.

There have been deep revulsions over the violence and cruelty meted out to gays. Ten or so years ago, a 21 year old student named Mathew Shepherd was pistol-whipped by two men and tied to a wire fence in the U.S. state of Wyoming and left to die. The widespread horror shown by ordinary Americans at the hate crime against Matthew, who worshipped at the St. Mark's Episcopal Church with his parents in home-town Casper, led to moves to include crimes against gays in existing U.S. hate crime legislation. First proposed by President Clinton, it was vetoed under President Bush's watch but current President

Obama has pledged he will not veto the special amendments.

The state, whether it be in Canada or Guyana, must take some of the leadership where appropriate in properly channeling the increasing social disdain against violation of peoples' rights on the basis of sexual orientation. Aside from Canada, the European Union (EU) group of countries also has strict laws prohibiting such discrimination. Last year, Sizzla found he was denied a visa to tour Europe. In 2004 he was banned from entering the UK.

The decisions of the state in these matters are based on interpretation of laws which can deny a person entry if it is determined he/she will stir up hatred and cause disorder among peoples. Their recordings should also not be on sale.

This was the rationale last year when Guyana's Minister of Home Affairs Clement Rohee announced that the DJs Bounty Killer and Movado , whose songs have equally repugnant anti-gay and pro-violence lyrics, would not be permitted to perform in Guyana again. The Minister should be commended for this forthright action . Guyana can do without such incitement to hatred and violence and inflammatory behaviour.

The Guyanese group Society Against Sexual Orientation Discrimination (SASOD) had voiced their opposition to the singers' presence in Guyana as well as the recent detention in Georgetown of a group of "cross dressers" (men dressing up as women).

As I wrote to Barbadian authorities urging more control and regulation of a certain internet blog in the island which carries the most repugnant and racist postings against Guyanese nationals in Barbados , the prohibiting of airing of inflammatory and inciteful messages has nothing to do with freedom of speech. Hate mongers and racists should have no freedom of speech. We have to think of the overall good of society and its more important freedoms and rights which protect genuine freedom of speech and the well being and happiness of all, including people of sexual orientation.

Sizzla may be a creative artiste when singing about other subjects. I understand he has good social commentary in some of his songs. From working class roots, we must respect his creativity and look at his overall work.

However, when a singer gets up and publicly urges the audience to go out and kill a certain segment of the population, that is a hate crime. We have to take a stand.

In 1998, US senator Edward Kennedy told a legislative hearing . "Hate crimes are a form of terrorism. They have a psychological and emotional impact which extends far beyond the victim. They threaten the entire community and undermine the ideals on which a nation was founded."

(Norman Faria is Guyana's Honorary Consul in Barbados)

Jamaican overseas comments on the San Fran boycott

Thanks to Fiyu Pikni for this comment on our post below, thought it was important to post it as the dialogue continues on the issue.

I'm somewhat ambivalent about this renewed effort to influence change for the better, by our international allies.

I made the following comment on an article which supports the boycott: http://www.boycottjamaica.org/blog/huffington-post-time-to-boycott-jamaica/

"As a gay Jamaican, I am heartened by the efforts of our international allies, who are trying to increase general awareness of Jamaica's homophobia, and what it means for queer identified individuals there. I agree with your approach, in that we need to be more proactive in our advocacy, if the Jamaican government is ever to recognize queers as citizens with inalienable rights.

That said, I am perturbed by the actions taken by boycott groups thus far, for they are exceedingly insensitive to the socio-cultural reality in Jamaica. Do not misinterpret me- doing nothing is not an option, but I hope that those who desire to boycott Jamaican products, for example, are sufficiently aware of the real challenges faced. Jamaica's most homophobic citizens are perhaps the most likely to react with belligerence to the boycott efforts. Jamaicans do not like to be told what to do, or think. Generalization, yes, but i can promise you that this is the reaction the efforts you are supporting will yield. This will in turn make people more hostile towards queer identified individuals, and less receptive to issues affecting LGBT individuals.

The task at hand should really be to have the government decry violence against people of a queer orientation, and enact legislation to guarantee protection for them. They aren't very empathetic to our cause now, and will be even less so once these boycotting efforts are in full gear.

Unless you are working directly on the ground, and with politicians, to get support for these legislative efforts, the goal of the boycotts will not be achieved. Further, whatever lofty goals one has to change the way Jamaicans perceive queers must be reevaluated. Pushing Jamaicans further into poverty will NOT make them more sympathetic of the needs of disenfranchised queers.

So I ask. In tandem with your support for the boycotts, are you also working directly with the LGBT rights advocacy group on the island to see what else can be done on the ground, with a grassroots approach. Are you encouraging people to write letters to the various members of parliament, who will ultimately have to vote on proposed legislation?

This problem will not be solved easily, because homophobic people are not rational, and so our cries will continue to fall on deaf ears, at least for a while. Clearly then, the issue must be approached in a holistic way, lest we exacerbate the dangers faced by queers, and particularly gay men and transgender individuals, in Jamaica."

With each passing day however, I am more supportive of the boycotts. Let's face it- as good a job as J-flag is doing, the Jamaican populace as a whole, and the Jamaican government, are not softening up to the idea that gays have a fundamental right to life and liberty. For many, we don't exist as an oppressed minority. They often speak of foreigners imposing their immoral beliefs on Christian Jamaicans, completely oblivious to the reality that there is a sizable queer population in Jamaica, as in every nation. People need to learn, sooner rather than later, that this is not a matter of getting them to accept homosexuality...rather, our efforts should be geared at reinforcing the ideal that all Jamaicans, regardless of sexual orientation or gender expression, possess certain inalienable rights that the government MUST protect- after all, is that not their mandate?

If only our justice system was more efficient, I would study law just so I am able to understand better the Jamaican constitution, and consider ways I could sue the government for acting in ways towards homosexuals that are unconstitutional... anyway, I digress.

I am tired of being silenced. I am tired of being Mr. sensitive nice guy, who must always accommodate the bigotries of Jamaica's ignorant populace. Perhaps this boycott, if successful, will have innumerable adverse impacts on Jamaica, but the harm inflicted upon queer Jamaicans, whether through verbal or physical violence, should be of equal concern. There is no greater evil...

I will reiterate that I do not believe boycotts will ever twist the arm of the Jamaican government sufficiently for it to decriminalize buggery, and decry discrimination on the basis of sexual orientation/ gender. Ultimately, our members of parliament will have to vote on the matter, and I am sure that there isn't very much support for our cause. Perhaps in a generation or two, but until then, what do we really have to lose?

I believe Jamaica's unapologetic stance against homosexuals is as bad as it can ever be... Surely, the boycott efforts will serve to inflame some people's homophobia, but it is not making them any less violent or intolerant than they were already prone to be.

I am somewhat unhappy with the very firm stance J-FLAG has made on the boycotts. Yes, I agree that there are other ways to go about this, and indeed the boycotts alone wont work. And yes, targeting Red Stripe was a bad move on their part.

But seriously JFLAG, seriously, wa wi fi du now? Jamaican gays literally live in fear. I LIVE IN FEAR. Last summer I was walking through town when a man shouted out behind me, "a wan a dem dat ino." I was on my own, briskly walking to my destination- I don't even care to hang out in public anymore...And my heart skipped a beat, because I wasn't sure if his next uuterance would be, "come wi brush im."

Now I know that you are fully aware of the dangers faced, and are doing what you believe is the best approach to dealing with the situation, which happens to be a diplomatic one... It is my belief however, that your approach has some limitations. Perhaps if we had more than one Queer rights groups, which had different philosophical views about the best approach to ending active discrimination, then we could be a bit farther along in our efforts. I need not mention the influence of political and social radicalism in the queer movement which began after Stonewall, in 1969 I believe.

In the absence of another organization with a more extremist temperament, the boycott efforts in the US by the various organizations, will potentially serve us some good. I guess time will tell.