Statement made on 16 February 2001 when delivering sentence
in relation to several men accused of murder on various occasions but whose
pleas of guilty to manslaughter the prosecution and the court accepted, at the
February 2001 Assizes at Kingstown in St Vincent and the Grenadines. The men were all young men, first time
offenders and of previous good character, and who had each spent several years
on remand since the date of their offences.
They were all sentenced to short terms of imprisonment, the effect of
which was their immediate release from prison.
Later the same year, Barrister at Law
Dr Ralph Gonsalves having assumed the Prime Ministership, the Judicial and
Legal Services Commission suddenly, and without explanation, removed me from St
Vincent and the Grenadines, and relocated me to the State of Antigua and
Barbuda. I am sure there was no
connection between the remarks made below and the relocation in question.
Within the next several years, after
an inquiry and Report by Sir David Ramsbotham, previous Chief Inspector of
Prisons for England and Wales, a new minimum-security prison was constructed in
the countryside of St Vincent, though the old Prison continued to be used for
prisoners considered to be high security risks.
***
1. The law of this country is that there
are certain offences which are so serious that the penalty for committing them
should be a sentence of imprisonment. In
prison, it is intended that the convicted person can learn the discipline and
rules of good conduct that he missed out on in his earlier years. The end product of a prison is that when the
inmate leaves it he should have become a disciplined, useful and productive
member of society.
2. In order for a judge to be able to
sentence a person to a term of imprisonment, there must of necessity be a
prison. A prison is a place of isolation
from the community, where persons who seriously offend against the laws of the
community are sent as a punishment and for rehabilitation.
3. When a person is sentenced to a term
of imprisonment, that confinement in a prison constitutes the punishment. A person who is imprisoned has his liberty
taken away from him. He has to obey
strict rules that limit his previous freedom.
It is the simple deprivation of liberty and the other restrictions on his
previous freedom that is the punishment of imprisonment. That is the only punishment a man should
suffer when he is imprisoned. Anything
else is illegal.
4. In any country that lays claim to be
civilized, the minimum provision for judicial custody involves that, in
addition to any necessary “high-security facility,” there must exist some
separate suitable safe rehabilitative prison facility for non-violent prisoners
to be housed in and to serve out the term of their sentence.
5. Persons who have been remanded in
custody to come up for their trial have not yet been convicted of any
offence. Under our system of justice,
they are presumed to be innocent until found guilty by a court. These persons on remand should not be mixed
in with hardened criminals for the obvious reasons. As a basic minimum they are always expected
to be detained in quarters that are separate from the most serious offenders
who have been sentenced to long terms of imprisonment. It may even be considered illegal for persons
on remand to be housed in the same quarters as convicted prisoners, and to be
subject to the same conditions as convicted prisoners.
6. Having heard the frequent stories,
and read the ongoing newspaper articles, of gang rule, gang rapes, beatings,
knifings and murders, drugs and alcohol, in Her Majesty’s Prison in Kingstown,
I was curious as to whether there is in fact a prison in St Vincent and the
Grenadines to which a judge could properly sentence a person as punishment for
having committed a serious criminal offence for which a term or imprisonment
would be an appropriate sentence.
7. I have been over to inspect Her
Majesty’s Prison in Kingstown. The
warders have shown me every room and facility that exists in the male prison in
Kingstown. I have spoken both to warders
and to prisoners who have been free in describing conditions in the prison.
8. It seems that the Prison was
originally built to accommodate less than 100 persons. With the various additions that have been
built recently, it can hold an absolute maximum of 250 persons. It presently houses some 300 persons. Conditions have been improving under the
present Superintendent and his staff, who have brought the numbers down from a
recent high of 450 prisoners, but the Prison remains severely overcrowded. Most of the prisoners are housed 40 men at a
time into the typical cell. The smallest
cell is death row. Death row is a room
in which the 5 men who have been convicted of death are presently housed in
dormitory conditions. There are no
single cells. Even the old punishment
cell has been converted into use as a regular cell. The root cause of the problems in the prison
may be laid down to this one problem of excessive numbers in too small a place. Until that problem is solved, it may prove
difficult to improve conditions.
9. The prison is presently very
unhygienic. The conditions at night with
such large numbers of men in each cell can hardly be imagined. Many of the cells have neither working toilets
nor showers. There are some toilets, but
many of these have been damaged in violent incidents in the cells. The men in each cell without a toilet must
defecate and urinate in buckets placed on the floor of the cell. These buckets must wait until the following
morning to be emptied. The Warders and
prisoners have described the odour in each cell in the night as
unbearable. In the prison courtyard, and
available for day-time use by all 300 prisoners, there is one large open pit
latrine. The men must use this squatting
shoulder to shoulder. Most of the cells
have a shower for use during the night.
During the day the men shower in the open courtyard in full view of
other prisoners.
10.
Violence
is endemic. Persons are frequently and
routinely beaten by other prisoners for real or imagined offences, until their
bones are broken. I have personally seen
persons in the Prison with terrible injuries suffered within the previous 24
hours before I arrived. Knifings and
stabbings I am assured, and I accept, are commonplace. Each prisoner, I have been assured, must
expect to be stabbed sometime during his sentence. Some security is found only within a
gang.
11.
Within
the past month, 2 prisoners who were implicated in the injuring of the popular
Superintendent of Prisons were murdered by a large gang of prisoners. After the incident, they had been locked by
the Warders in the one safe cell in the Prison for their own protection. In spite of this, their locked door was
broken open and their throats were cut.
Any prisoner who leaves prison at the end of his term, and who does not
throw weapons, drugs and alcohol over the prison wall for use by his gang, will
be beaten severely if, as frequently happens, he should ever return to the
prison. As a result, rum, drugs, and
weapons proliferate in the prison. Every
young and new prisoner entering the prison population is beaten until he gives
up his shoes, shirts and trousers.
Sporadic and infrequent searches by the police do not touch the tip of
the iceberg of weapons and drugs circulating in the prison.
12.
The
danger is aggravated as violent psychotic patients are housed with the general
prisoners. There are no separate
facilities for housing and treating violent psychotic patients. These persons are stored in the general
prison population with little treatment and no hope of recovery. It was one such psychotic patient who is
alleged to have recently stabbed the Superintendent of Prisons and who was one
of the two prisoners murdered.
13.
Sexual
violence is pervasive. I have been told
that about 50% of the men engage in sexual activity. Any young person who is sent to prison is
continuously harassed by certain aggressive homosexual predators. Young prisoners are in constant danger of
rape during the day and at night. Rape
of young and unwilling prisoners is a common practice in the prison. The gang-leaders and warders to whom I talked
assure me that any child molester, rapist, or other sex offender sentenced to
prison is guaranteed repeated gang-rape, beatings, stabbings, and worse. There is nothing the Warders can do to protect
such prisoners from abuse. Some security
is found only in being a member of a gang.
14.
The
Warders and prisoners estimate that over 40% of the men in prison today are
HIV-positive. This is an unscientific
estimate. However, no HIV testing is
done routinely to discover the rate of infection. Cases of TB exist in the prison. TB is today most frequently associated with
the terminal stages of Aids. It is an
infectious disease, and a serious health risk for all prisoners and Warders
exposed to it. Given the violence in the
prison, HIV infection is a risk for Warders as well as other prisoners. The seriously ill prisoner cannot be isolated
in a prison such as we have in St Vincent.
There are no facilities for such care.
Condoms, which are an obvious, safe and inexpensive aid in alleviating
the problem, are not available to the prisoners because of morality
concerns.
15.
There
is no recreational facility in the prison.
There is no space in the prison for anything more than one ping-pong
table out in the tiny general courtyard.
There are no sports, no magazines, no TV, no radio, no education, no
rehabilitation, no recreation, and very little constructive activity. There is no recreation room, nor any
recreation equipment of any kind. The
original prison chapel has been converted into 3 cells. After the men have been let out of their
cells each morning, all that the men can do all day long while they are in
prison is to sit around. They have
nothing to do except to discuss the various crimes for which they have been
convicted, and the techniques of evasion and escape. The prison is a university of crime.
16.
There
is no room, nor any hope that room can be found in the present facility to
separate out the men into different groups.
Men on remand but not yet convicted of any offence are routinely housed
in the general population of convicts.
Men convicted of the most serious offences of manslaughter, rape,
unlawful wounding, and burglary mix freely with non-violent offenders and
persons remanded into custody but not yet convicted of any crime. Young men are housed in the same cells as
older, predatory homosexual rapists.
Only membership in a gang affords any protection.
17.
All
cooking of meals in Her Majesty’s Prison is done on open wood fires in a
kitchen shed. The prisoners’ food is
prepared in the same sort of iron utensils suspended over a wood fire as were
used in the West Indies in days of slavery to manufacture muscovado sugar. The Superintendent presently has under construction
a fine modern kitchen, and I hope that one day it will become operational. The present cooking conditions, however, are
unacceptable for human beings.
18.
There
is no clinic or hospital room in the prison.
Prisoners who have been stabbed or had limbs broken in beatings have to
wait until transport can be found to carry them under guard to the
Hospital. The Superintendent presently
has certain masons and carpenters among the prisoners constructing a small
clinic in the Prison. I hope that one
day it will be furnished and become operational.
19.
There
is, generally speaking, no work that the imprisoned men in the Kingstown Prison
are provided with that will result in their earning any money for use when they
are released from prison. The Prison
Keepers personally assist a few favoured prisoners in getting work and in
opening bank accounts to save their earnings.
But, the mass of prisoners have absolutely nothing constructive to do
all day long for the entire term of their sentence. They are released eventually from prison with
the barest of clothing, and not a penny in their pockets, and with no hope of
integration back into society.
20.
Warders
are underpaid, under-staffed, and over-worked in the most horrible and
dangerous of conditions. Requests by the
prison management for an increase in staffing and an improvement in conditions
to relieve the situation have gone unheeded.
No training of warders has been possible for a very long time. I am told that the prison cannot take up the
offers of training as they become available because, if several warders go to a
training session, the prisoners must be confined to their cells and mayhem
would rule.
21.
The
illiteracy rate in St Vincent is variously given as anywhere between 10% to
50%, depending on the age group considered.
Young people make up the majority of the prison population. Amongst this group I understand that the
illiteracy rate is nearer the 10% range.
Yet, the warders and prisoners are in agreement that in prison only
about 5% of all prisoners can read or write.
This suggests that only the poorest and most disadvantaged members of
Vincentian society are being sent to prison.
Prison is a place where offenders from the poorest and most defenceless
class of persons are routinely thrown away and forgotten. If this is true, then the Prison of St
Vincent and the Grenadines is a feature of some of the most oppressive forms of
discrimination, exploitation, and disadvantage.
Anyone with money, no matter how serious his offence, can, it seems,
hire the best defence to keep out of prison. Prison is not an option for criminal offenders
from the middle class of this State. It
may well be that conditions in the prison cannot reasonably be expected to be
improved until large numbers of the middle class are committed to it. Only then is it likely that the conditions in
the prison will become a matter of concern for those in authority.
22.
A
real prison is not a place where a person is meant to be sent to be subject to
inhuman punishment. A man is not sent to
prison to be repeatedly beaten, stabbed, raped, exposed to fatal and incurable
diseases, and eventually murdered. We
have abolished torture and humiliation in St Vincent and the Grenadines. It is illegal in this State to subject a
person to conditions of torture.
23.
It
is not acceptable that prison is a place where class differences are enshrined
and exaggerated. It is unacceptable that
prison is treated merely as a place to discard the throw-away members of the
poorest class of Vincentians.
24.
The
near 50% of the men in the prison who are engaged in homosexual acts are
presumably not by nature homosexuals.
They are in reality heterosexuals, pressed, in some cases by threats and
acts of violence, into homosexual acts.
It has been observed that many of them are pressured by the urges of
human nature, inevitable among young men and in situations of large numbers of
men forced into intimate contact with no diversion of any kind, into homosexual
acts. When these men get out of prison,
a large proportion of them, nearly 40% I am told, will be HIV positive. They will re-enter Vincentian society. They resume co-habitation with their wives
and girlfriends. When they later return
to prison, as is only too common, their now HIV-positive girlfriends will find
new sex partners in the community. It
cannot be surprising that we hear on the radio and TV that St Vincent presently
has one of the highest HIV-positive ratings of all the States in the OECS. The prison is a festering ground for HIV
infection.
25.
As
a result of all the above, I have some doubt that there exists at present in
the State of St Vincent and the Grenadines a prison to which I may properly
sentence any man to a term of imprisonment as a punishment for any offence, no
matter how severe.
26.
Until
conditions change, it would appear that a judge should have serious concerns in
sentencing to be confined in Her Majesty’s prison in Kingstown any those men
who are such a clear and present life-threatening danger to their community
that they cannot as a matter of public safety be allowed to remain at liberty. The confinement in such a case will serve the
purpose of protecting society, not of constituting a punishment for the
convicted person in question.
27.
Given
the conditions described above, the question arises whether it is proper to
remand persons not yet convicted of any offence to Her Majesty’s Prison in
Kingstown. It would seem that the safest
course of action for me to follow in dealing with persons who would normally be
expected to be placed on remand, until I shall have been satisfied that a suitable
facility has been made available, might be to release all such persons on bail
with suitable conditions as may appear appropriate in each case.
28.
It
is in the light of the above that I now propose to consider what other options
exist by way of penalties for persons convicted of serious criminal charges in
St Vincent and the Grenadines.
29.
The
law provides for fines to be imposed. St
Vincent and the Grenadines is one of the poorest nations in the Western
Hemisphere. Unemployment and illiteracy
rates are high, particularly in the rural areas. Many of the persons who appear before the
court are unemployed. They do not
possess any income, savings, valuable possessions, or other reserves to be able
to pay a fine. When a fine is not paid
the Magistrate or Judge issues a warrant to pick up the person and commit him
to prison for not paying the fine. The
police know that the fine was not paid due to poverty, not malice. The result is that hundreds of outstanding
warrants are quietly stored in a desk drawer.
The police have not been able to execute the warrants. They are only too well aware that there is no
room in the prison for these defaulters.
In these cases, where poor persons have been fined, no real penalty has
been imposed, because the men fined know that they will not be picked up when
they fail to pay the fines and warrants are issued for their arrest. One has to question whether the option of
ordering a fine or compensation to be paid by someone who is not clearly able
to pay the fine is realistically open.
30.
The
Probation Department exists under the Probation of Offenders Act. The officers of that Department have
explained to me that they have the title of Probation Officers. The Probation Officers have many duties. They take care of all cases of child abuse,
poor relief, abused women, and all welfare matters in the State. Their duties are much more extensive than
mere Probation Officers. The Department
has an office in Kingstown, but no extension workers in the outlying
districts. They have no office transport
to get to probationers inside, far less outside, Kingstown. They lack any other facilities to assist in
carrying out probation duties. The
office is presently severely understaffed for the existing welfare work. Only counselling is offered to persons on
probation, no supervision of any kind is possible. If a court puts a person in Kingstown on
probation, then if that person happens to drop by the office, he will receive a
little counselling. If he lives in the
country and cannot drop by the office, then no counselling or supervision of
any kind can be carried out. One has to
ask whether probation orders are not, then, an entire waste of time. Can a court properly impose the duties of
probation on such heavily overworked officers who lack the most basic means to
carry out the order of the court? There
is a basic rule that a court should not make an order that it knows is
incapable of being carried out.
31.
Community
Service Orders have been under discussion for some time now. I understand that the proposed legislation
for community service orders is not yet in place. Only the traditional sentences exist.
32.
The
remaining traditional sentences provided for by law include:
(a) supervision order: s.20
(b) payment of compensation: s.27
(c) payment of costs of the prosecution:
s.27
(d) suspended sentence: s.30
(e) forfeiture of the proceeds of crime:
s.32
(f) forfeiture of articles involved in
the offence: s.33
(g) security for keeping the peace: s.34
(h) security for coming up for judgment:
s.35
(i)
discharge
without punishment: s.37
(j)
restitution:
s.238
(k) corporal punishment under Corporal
Punishment of Juveniles Act
33. These limited varieties of sentences
will have to be imaginatively applied by the Court until such time as the
Legislature of St Vincent and the Grenadines provides the Court with more
varied and modern options for sentencing of offenders for non-capital offences.
