Balancing justice

THE delicate issue of how to deal with children who commit murders remained a key area of deliberations for legislators on Tuesday.

Under the Child Care and Protection (Amendment) Act, 2023, now being reviewed by a parliamentary joint select committee, it is being proposed that children convicted of murder serve a mandatory sentence of 20 years in prison before becoming eligible for parole.

But at its meeting on Tuesday, legislators grappled with the need to balance the cries for justice from the public and the rights of child murderers.

As the committee members went through the matrix of submissions, some recommendations of Child Watch Legal, an affiliate arm of Hear The Children’s Cry, struck a chord.

While the entity supports minimum mandatory sentencing, it believes 20 years is unreasonable and has recommended a sliding scale of penalties for children who commit murder.

However, Government committee member and Minister of Education and Youth Fayval Williams questioned whether the victim is being forgotten and, why there was sympathy for the perpetrator and not the victim.

“We should not lose sight of the fact, based on this data we are presented with, that over the last six years, 47 children have been charged for murder. That’s approximately eight every year for the last six years,” said Williams.

But Opposition committee member Senator Donna Scott Mottley pointed out that eight children being charged every year does not mean eight children are guilty, and that in the scheme of things, eight is a very insignificant number.

Williams retorted: “It is significant to the victims”.

In response, Scott Mottley said, “The minister has to take into account the nature of the charges, the facts. What surprises me is that the minister, more than anybody else in this room, ought to be acutely aware of the situations which affect children because she looks at [that] close-up in the schools.”

Further, Government member Sherene Golding Campbell said she understands the positions being expressed by her colleagues and she shares them, but she underscored that the committee’s focus ought to be on what the group has been mandated to do.

“The Bill that we are deliberating on and about is intended to create mandatory minimum penalties for the offence of murder. We are grappling with the issue of that intent as it relates to children and I hear you minister on the public outcry and I hear and agree that we have to consider and contemplate the impact on victims,” said Golding Campbell.

“But I really am going to impress upon my colleagues that we look at the data we have and we take the data and information that we have been given into more prominent consideration. So that when Dr [Ganesh] Shetty from the Jamaica Psychiatric Association came and spoke to the committee, he spoke to data that is extremely relevant to the consideration of children and the state of mind of children and how we should be looking at penalties in relation to them.

“We seem to have ignored that and I am concerned that we are operating on the basis of public outcry. It is an important thing to consider but we are, I hope, going to make law on the basis of what the data is saying is the prudent path to take,” added Golding Campbell.

Government member of the committee Senator Kavan Gayle argued that one of its main objectives is to seek to balance justice.

“You have the call and the cries from the victims, on the one hand. And most, if not all of the groups have represented in defence [of] the perpetrators. And so the committee has to focus now on how do we balance justice? How do we satisfy and serve the needs of the victims, on the one hand, and balance it with the perpetrators?” he said.

In its submission, Child Watch Legal said that if the proposed Bill was to become law, then when a child at the age of 12 is sentenced to a minimum of 20 years before becoming eligible for parole, then he would not be less than 32 years old before he be given an opportunity to experience freedom and a normal life.

“This, in our view, is cruel, excessive and does not promote rehabilitation which, in essence, should be a primary of objective in sentencing,” the entity said.

It argued that the court should be given an opportunity to have a lesser sentence, that is, for children at different age groups or ranges and the factors that contribute to the result of the child being brought before the court.

In terms of penalties for murder, Child Watch recommended that for children between 12 and 13 year old — no possibility of life imprisonment; eight to 12 years — custodial sentence depending on the facts of the case and that parole may be considered when they have served two-thirds of their sentence.

Additionally, children 14 to 15 — life imprisonment, parole considered after 10 years in custody; children 16 to 17 years old — life imprisonment, parole considered after 15 years in custody.

“This should serve as guidance only. The judge should have the liberty to vary these tariffs according to the circumstances of each case,” Child Watch said.

The committee is also deliberating on related legislation dealing with minimum mandatory sentencing. These are: the Criminal Justice (Administration) (Amendment) Act, 2023; and the Offences Against the Person (Amendment) Act, 2023.