Criminals must feel consequences, says Appeal Court president

President of the Court of Appeal, Justice Marva McDonald-Bishop, is urging judges not to hesitate in imposing maximum sentences for serious crimes when the law permits, emphasising the need for the judiciary to send a clear message against grave offences.

While noting that judges have a duty to honour their judicial oath and to apply the law impartially, she said they “must also be unafraid [to] extend the reach of the law as far as the law allows so that the serious consequences of criminal behaviour are strongly felt by those who commit criminal acts”.

The senior jurist was addressing legal scholars, attorneys, and government officials at the Mona Law Distinguished Lecture on Thursday at The University of the West Indies, where she explored the complexities of navigating sentencing within a modern constitutional democracy.

She highlighted that sentencing remains one of the most challenging and closely scrutinised responsibilities faced by the judiciary. Judges, she noted however, are required to balance legal principles with a deep understanding of human circumstances.

“While the public’s attention often centres on the outcome, such as the length of the sentence, the headlines, and the associated emotions, there’s much more to sentencing than simply the results,” she added.

McDonald-Bishop also addressed the ongoing debate surrounding the constitutionality of mandatory sentencing laws, which have become a focal point in Jamaica’s efforts to combat violent crime.

She reasoned that while mandatory sentences are legitimate and useful, they cannot override a judge’s authority to tailor sentencing to the specific circumstances of a case, in order to avoid outcomes that are disproportionate or unjust.

“In Jamaica, Section 13 of the Charter doubles down on this responsibility by expressly binding the organs of the state and all public authorities to exercise their functions in an equitable and humane manner,” said the head of the Court of Appeal.

Additionally, she pointed out that while both the Privy Council and the Caribbean Court of Justice have accepted that mandatory sentences are not unconstitutional by themselves, they also agree that minimum sentence provisions are not absolute restrictions on judicial discretion.

“So what this means then is that although Parliament is entitled to create mandatory sentencing regimes, the court’s duty to do justice in accordance with the Constitution is superior and may require departing from Parliament’s prescription in individual cases,” she added.

The Court of Appeal president further highlighted challenges posed by mandatory sentencing, including increased court backlogs due to fewer plea agreements, and the risk that harsh penalties may harden rather than rehabilitate offenders.

Nonetheless, she acknowledged that while the burden borne by judges in the dispensation of criminal justice is immense, the judiciary remains committed to doing its best to resolve these dilemmas in the pursuit of justice and the public good.

“In this complex environment of a modern constitutional democracy, a consistent commitment to the proper administration of justice and reform will ensure that justice is not only done but also seen to be done by the judges responsible for punishing society’s transgressions,” McDonald-Bishop concluded.

tanesha.mundle@gleanerjm.com