The Death Row Phenomenon
The argument that saved one thousand lives
There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time.[1]
In the landmark case Pratt and Morgan v the Attorney-General of Jamaica [1993] UKPC 1, the Privy Council ruled that Jamaica could not carry out the death sentence of a prisoner who had been on death row for fourteen years. Such an excessive delay amounted to “inhuman or degrading treatment,” which was prohibited under the Jamaican constitution.
This argument and the precedent it established — that the agony of years of waiting for one’s pending execution is a torture that cannot be allowed — have led to the commutation of more than one thousand death sentences in Commonwealth countries across the Caribbean and East Africa.[2]
And it was twenty years in the making.
Pratt and Morgan was the work of a team of barristers led by renowned Australian human rights lawyer Geoffrey Robertson KC.
But twenty years earlier Robertson was a recent Oxford graduate, pleading death row petitions in front of the Privy Council every Tuesday morning. A lifelong abolitionist, he mourned the fact that any particular case (in other words, his client’s life) rested on his ability to find errors in the legal or procedural process, and not in persuading the court to repudiate the death penalty as an institution. Conventional wisdom held that, if the people’s representatives had passed laws providing for capital punishment, it was not the business of the courts to defy that decision directly. The continued existence of capital punishment was a political, not legal, question. What Robertson needed was an argument that challenged the legality, or constitutionality, of the institution itself.[3]
In his memoir, Rather His Own Man, Robertson recalls his experience, in his early visits to death row prisoners in Jamaica and Trinidad, of what would be identified in the European Court of Human Rights case, Soering v United Kingdom (1989)[4] as the “death row phenomenon”. He would see men who had been convicted many years or even decades previously condemned to purgatory while the callous winds of political processes flickered this way and that, while appeals dragged on and on, while the scrape of keys in a lock and muffled shouts of guards could come at any moment and signal it was time to go.
And he recalls that, in many cases, the state is not killing the same man who was convicted all those years ago.
In one such visit, Robertson’s client was the British Black Power leader widely known as Michael X. In the early 70s, X returned to his native Trinidad and founded a second iteration of his North London commune, called “the Black House”.[5]
When it burned down in 1972, investigators discovered that the bodies of two members, Joseph Skerritt and Gale Benson, had been buried on the premises. X was swiftly convicted of Skerritt’s murder and sentenced to death.
Robertson recalls meeting X when he was “one of the living dead” at the Royal Gaol in Port of Spain, kept in cages in sweltering heat for twenty-three hours a day, and forced to endure “a cacophony of screeching and screaming from other inmates”.[6]
Here, Robertson observed the death row phenomenon.
These men were being tortured, not just by the intense discomfort of their physical circumstances, but by the profound despair into which they were induced. The sound of the guards coming for their fellows, reading their death warrants, and escorting them out, or the squeak and thud of the trapdoor in the execution room, were constant reminders of the capricious, infernal doom awaiting them at any moment.
As Robertson sat with Michael X over many days, he came to understand that a prolonged stay on death row was, in effect, torture. And he suggested to X that this should be their argument — that death row was torture, and torture and degrading treatment were prohibited by the constitution.
Michael smiled, for the only time during my visits, and put his finger to his lips. ‘Shhh,’ he said. ‘Listen. This place is always full of noise.’ Now, there was total silence. Every man on that block was pressing against the bars of his cage, leaning towards us and straining to hear. ‘You must realise that for them, you represent hope,’ he said. ‘Their only hope. Promise me that one day you will make this argument, for their sake, not mine. They will hang me, no matter what.’[7]
The salt in the wound, the whetstone that sharpened the despair, was hope.
The mental agony of the death row phenomenon, Robertson observes, was “caused by alternating hope and despair”. Whether it was hope that their appeal might succeed, hope that new evidence might turn up, or hope in a young Australian lawyer with some big ideas, using the law to give voice to their suffering.
While the Trinidadian government did, indeed, hang Michael X — in 1975, in the dead of night, before Robertson could get to a judge to stay his execution — Robertson kept his promise, and pled his argument before the Privy Council nearly twenty years later.
This case should prove to us that the law can be a place where justice is done, and where our dignity, human rights and even our very lives can seek refuge from the mercurial and even bloodthirsty whims of powerful people and institutions.
It should demonstrate that the death penalty is an abomination that we would not wish on our worst enemies.
And it should remind Australians of how fortunate we are, how important consistent and principled advocacy is to the defence and preservation of our political freedoms, and how outsized the influence of even one Aussie can be in shaping the world.
[1] Pratt and Morgan v the Attorney-General of Jamaica [1993] UKPC 1, [60] per Lord Griffiths.
[2] Geoffrey Robertson, Rather His Own Man (Biteback Publishing Ltd, 2019) 262.
[3] Ibid 259-260.
[4] (1989) 11 EHRR 439; Robertson, 261.
[5] ‘Militant Is Hanged by Trinidad After Long Fight for Clemency’, The New York Times (online archive, May 17, 1975) https://www.nytimes.com/1975/05/17/archives/militant-is-hanged-by-trinidad-after-long-fight-for-clemency.html.
[6] Robertson, 261.
[7] Ibid 262.