1. Judgment, Pratt and Morgan v. The Attorney General for Jamaica and another (Jamaica) [1993], UKPC 37. The earlier decisions that Pratt reversed were Stanley Abbot v. The Attorney General of Trinidad and Tobago and Others (Trinidad and Tobago) [1979] UKPC 15 and Noel Riley and Others v. The Attorney General and Another (Jamaica) [1982] UKPC 23. The Judicial Committee of the Privy Council sits in London, and was the final court of appeal for the British Empire. It retains that status for several former colonies, including Jamaica and several other Commonwealth nations in the Caribbean. In this article, the institution is referred to as “the Judicial Committee” to distinguish it from the Jamaica Privy Council (JPC), which was an advisory board to the governor of Jamaica. On the history of the Judicial Committee, see Swinfin, David B., Imperial Appeal: the Debate on the Appeal to the Privy Council, 1833–1986 (Manchester: Manchester University Press, 1987)Google Scholar.

2. At the time of the judgment, there were 105 prisoners who had spent at least 5 years on death row, and their Lordships recommended that these cases be immediately referred to the Jamaica Privy Council for commutation to life imprisonment. In practice, no death sentences were commuted—apart from those of Pratt and Morgan themselves—until March 1995. Judgment, Pratt and Morgan, 1; and “Review of Death Row cases ends,” Gleaner, April 12, 1995, 2.

3. On developments in Caribbean death penalty jurisprudence since Pratt and Morgan see Jeremie, John S., “The Caribbean Death Penalty Saga,” Law Quarterly Review 128 (2012): 31–37Google Scholar; Morrison, Dennis, “The Judicial Committee of the Privy Council and the Death Penalty in the Commonwealth Caribbean: Studies in Judicial Activism,” Nova Law Review 30 (2006): 403–24Google Scholar; Vasciannie, Stephen, “The Decision of the Judicial Committee of the Privy Council in the Lambert Watson Case from Jamaica on the Mandatory Death Penalty and the Question of Fragmentation,” New York University Journal of International Law and Politics 41 (2009): 837–70Google Scholar.

4. It should be noted, however, that although Pratt initiated this process, it is no longer an impediment to executions in Jamaica. Under Jamaica's Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act of 2011, death sentences cannot be ruled unconstitutional because of the length of delay between sentencing and execution or the conditions in which condemned prisoners are held pending execution. Jamaica Parliament, The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011 http://www.japarliament.gov.jm/attachments/341_The%20Charter%20of%20Fundamental%20Rights%20and%20Freedoms%20%28Constitutional%20Amendment%29%20Act,%202011.pdf (May 12, 2013).

5. Robertson, Geoffrey, The Justice Game (London: Vintage, 1999), 92–93Google Scholar. See also Knowles, Julian B., “Capital Punishment in the Commonwealth Caribbean: Colonial Inheritance, Colonial Remedy?” in Capital Punishment: Strategies for Abolition, ed. Hodgkinson, Peter, and Schabas, William A. (Cambridge: Cambridge University Press, 2004), 290–91Google Scholar.

6. In addition to the “special” constitutional savings clause, which protects from judicial challenge “specific penalties or punishments that were in existence at independence,” Jamaica's 1962 Constitution also included a general savings clause “insulating from fundamental rights challenge those laws that were in force prior to the adoption of the constitution.” Similar savings clauses were adopted by most British Caribbean nations on independence. See Burnham, Margaret A., “Saving Constitutional Rights from Judicial Scrutiny: The Savings Clause in the Law of the Commonwealth Caribbean,” Inter-American Law Review 36 (2005), 250Google Scholar.

7. Riley was an appeal by five condemned men who had been held on death row in Jamaica for more than 6 years.

8. As well as in Riley, the Judicial Committee also “rejected the argument that postconviction delay rendered execution unconstitutional” in De Freitas v. Benny, (1975), a case appealed from Trinidad and Tobago. See Knowles, “Capital Punishment in the Commonwealth Caribbean,” 292; and Robertson, The Justice Game, 96. See also The Lord Scarman and Philip Sapsford, QC, “The Death Penalty: Can Delay Render Execution Unlawful?” Anglo-American Law Review 25 (1996): 265–85Google Scholar.

9. Judgment, Pratt and Morgan, 2.

10. Case for the Appellants, Pratt and Morgan, 9–34 (quotes at 11 and 18).

11. Case for the Respondents, Pratt and Morgan.

12. These arguments were particularly powerful in the 1990s and early 2000s because of the very high murder rates in many Caribbean nations. See, for example, “Respect Our Views,” Gleaner, October 21, 2009, 1. On the “backlash” against human rights litigation in the Caribbean more generally, see Helfer, Laurence R., “Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash Against Human Rights Regimes,” Columbia Law Review 102 (2002): 1832–911CrossRefGoogle Scholar.

13. The Cayman Islands was a Jamaican dependency from 1863 to 1959, and the Turks and Caicos Islands was a Jamaican dependency from 1874 to 1959.

14. On Lewis, see Vasciannie, “The Decision of the Judicial Committee of the Privy Council,” 853–54n50.

15. Brophy, Alfred L., “Introducing Applied Legal History,” Law and History Review 13 (2013): 233–38CrossRefGoogle Scholar.

16. Appeals could be launched from criminal proceedings in the lower, resident magistrate's courts and in civil cases and were heard by the Jamaica Supreme Court. The practice of denying the right of appeal to circuit court criminal defendants was a feature of Jamaica's common law heritage that dated to the establishment of the island's Supreme Court of Judicature in 1681. Following the restructuring of Jamaica's courts in 1879, the policy was confirmed by the Jamaica Supreme Court in Rex v. De Leon and Quallo (1888), an arson case appealed from the Kingston Circuit Court on the grounds of “substantial defects appearing on the face of the record of the proceedings.” Although defendants could not launch appeals, the judge in a criminal case could refer a disputed legal matter for consideration by the full panel of Supreme Court judges; however, one prominent lawyer could recall only a single occasion when this had occurred in more than 20 years. Criminal defendants in Jamaica could also petition the Judicial Committee of the Privy Council in London, but this was, likewise, of little practical value as the process was prohibitively expensive until a form of legal aid was introduced in 1925. In any case, the Judicial Committee ruled repeatedly in the early twentieth century that it would not act as a routine court of criminal appeal, and would interfere with the business of local courts only to redress violations of due process that were so gross as to render the proceedings “virtually a farce,” and, consequently, “a matter of general imperial concern.” See Stephens, John E. R., Supreme Court Decisions of Jamaica and Privy Council Decisions, from 1774–1823 (London: C. F. Roworth, 1924), 536–43Google Scholar; and “The Legislative Council Continued its Spring Session Yesterday,” Gleaner, March 26, 1930, 6. The Judicial Committee quote is from the Bermuda murder case of Arnold v. King-Emperor (1914). See “Appeal Fails,” Gleaner, January 7, 1914, 3; and Bentwich, Norman, The Practice of the Privy Council in Judicial Matters (London: Sweet and Maxwell, 1937), 138Google Scholar.

17. In the early nineteenth century, Jamaica retained the death penalty for a wide range of offenses, including crimes against property, rioting, and rape. Beginning in 1840, however, the number of capital crimes was reduced, and in 1856, sweeping legislation prohibited the death penalty in Jamaica for any crime that was not a capital offense in Britain. In practice, all of the death sentences imposed in Jamaica during the period of this study were for murder. On the development of Jamaica's death penalty laws, see Dalby, Jonathan, Crime and Punishment in Jamaica, 1756–1856 (University of the West Indies, 2000), 77Google Scholar; and Chambers, Hugh V. T., Essays on the Jamaican Legal System and Certain Aspects of the Substantive Law together with a Concise History of the Courts in Jamaica from 1660 to the Present Time (Kingston: Metro Press, 1974), 104–6Google Scholar. Figures on death sentences, clemency, and execution here and throughout the article are based on a database created by the author from the Minutes of the Jamaica Privy Council, and supplemented and cross-checked by reports in the Gleaner newspaper and Jamaica's annual prison and police reports. The JPC minutes for 1867 to 1939 and from 1945 to 1951 are held under the title Jamaica, Sessional Papers, Privy Council (hereafter JSPPC), 1867–1939 at the National Archives of the UK, London (hereafter TNA), CO140. Minutes from the period 1939–1945 are filed as “Privy Council Minute Book” at the Jamaica Archives, Spanish Town (JA), 1B/5/3/42 to 1B/5/3/45.

18. For a valuable discussion and point of comparison on the role of mercy in capital punishment in the British Empire, see Hynd, Stacey, “Murder and Mercy: Capital Punishment in Colonial Kenya, ca. 1909–1956,” International Journal of African Historical Studies 45 (2012): 81–101Google Scholar.

19. Between 1867 and 1939, twenty-four women were sentenced to death in Jamaica, but only one was executed: Agnes Hire in 1891. See JSPPC, September 10, 1891, TNA, CO140/202.

20. “The Case of Luke Glover,” Gleaner, September 12, 1893, 4.

21. JSPPC, October 19, 1915 and October 30, 1917, TNA, CO140/246.

22. Charles H. Yorke-Slader to the Colonial Secretary, December 26, 1919, Jamaica Archives, Spanish Town (JA), 1B/5/76/3/298. Rex v. Farrell Jackson and Mary Ann Bodden for Murder, Jamaica Dispatches, 1920 vol 1., 318–54; JPC Minutes, January 20, 1920. It was rare that more than one person was executed for any murder. There were fifteen cases between 1867 and 1939 in which two or more defendants were convicted of murder, and among the thirty-six condemned prisoners in these cases, twenty were granted clemency.

23. “Very Serious,” Gleaner, January 21, 1931, 12.

24. “Felix Hall Will Not Suffer the Death Penalty,” Gleaner February 14, 1931, 6.

25. Attorney General to Colonial Secretary, November 5, 1931, TNA, CO323/1240/43; Representation of the West Indies Young Men's Political and Democratic Club (1931), JA, IB/5/77/140.

26. “Bill to Establish Appeal Court Passes the Committee Stage of Council,” Gleaner May 6, 1932, 7; Memorandum of M.V. Camacho, May 11, 1933, Courts of Criminal Appeal, Formation in the Colonies, Jamaica, TNA, CO323/1240/43.

27. From 1884, Jamaica's Legislative Council was a hybrid institution in which some seats were elected, but government members were appointed. The elected members did have the power to veto government bills, although the governor could overrule this in certain circumstances. See Carnegie, James, Some Aspects of Jamaica's Politics, 1918–1939 (Kingston: Institute of Jamaica, 1973), 15Google Scholar.

28. The injustices regularly faced by African Jamaicans in local courts have been cited as a major cause of the 1865 uprising at Morant Bay, and distrust of the criminal justice system persisted into the twentieth century. See Kostal, Rande W., A Jurisprudence of Power: Victorian Empire and the Rule of Law (New York: Oxford University Press, 2005), 96Google Scholar; Bryan, Patrick, The Jamaican People, 1880–1902: Race, Class, and Social Control (University of West Indies Press, 2000), 22–30Google Scholar; and Martin Thomas, “The Political Economy of Colonial Violence in Interwar Jamaica,” paper presented at ‘Terror and the Making of Modern Europe’ conference, Stanford University, April 2008, 6 http://francestanford.stanford.edu/sites/francestanford.stanford.edu/files/Thomas.pdf (December 18, 2012).

29. “Council Proceeds to Deal With Colony's Judicial Estimates,” Gleaner, May 16, 1934, 6.

30. Criminal appeals were debated frequently by the Legislative Council in the early 1930s and similar arguments repeatedly advanced. See, for example, “Hon. J.A.G. Smith Advocates Formation of Court of Criminal Appeal,” Gleaner, November 27, 1929, 10 and “Hon. Legislative Council Resumes Business of this Island,” Gleaner, November 20, 1931, 6.

31. The court structure in Jamaica was distinct from all other British Caribbean colonies where, beginning in 1919, the West Indian Court of Appeal served as the highest local appellate court. The West Indian Court was composed of the chief justices of its various constituent colonies, and unlike the Jamaica Supreme Court, was consequently independent of the trial court judges in any one colony. See Memorandum of M.V. Camacho, May 11, 1933, TNA, CO323/1240/43.

32. Sir F. Barrett Lennard, Memorandum on Supreme Court of Jamaica, July 11, 1928, TNA, CO 137/787/17. On the problems of the Kingston Court, see also “Hon. J.A.G. Smith Advocates Formation of Court of Criminal Appeal,” Gleaner, November 27, 1929, 10; and “The Legislative Council,” Gleaner, March 26, 1930, 6.

33. Memorandum of M.V. Camacho, May 11, 1933, TNA, CO323/1240/43.

34. Edward Denham to Colonial Secretary, October 23, 1935, TNA, CO 137/801/21, and April 13, 1938, TNA, CO137/827/12.

35. Lyall Grant, Memorandum on the Court of Appeal Law 1932, to Governor Alexander Slater, May 1, 1933, TNA, CO323/1240/43; and Donald Fitz-Ritson to Colonial Secretary, June 21, 1932, TNA, CO137/827/12, 52–53.

36. Ormsby Gore to Edward Denham, June 23, 1936, TNA, CO/137/810/4.

37. In the Home Circuit Court, which served Kingston and the surrounding parish of St. Andrew, 350% more criminal cases were heard in 1937 than in 1935. See Edward Denham to Colonial Secretary, April 13, 1938, TNA, CO137/827/12.

38. Memorial of the Jamaica Law Society to Colonial Secretary, January 1938, TNA, CO137/827/12, 48.

39. “Council Hear Requests for Land Settlement,” Gleaner, July 1, 1939, 31.

40. Chief Justice Fiennes Barrett–Lennard to Colonial Secretary A.S. Jeef, September 25, 1930, JA, 1B/5/79/196–1930.

41. “No Substantial Miscarriage of Justice in Valentine Case,” Gleaner, July 15, 1936, 6; and “Reasons Why Hon. H. I. C. Brown would Allow the Appeal in the Valentine Murder Case,” Gleaner, July 24, 1936, 5.

42. “The Sentence,” Gleaner, August 8, 1936, 12.

43. A recent study finds a similar connection between death penalty appeals and clemency in New York, where governors in the mid-twentieth century consistently commuted death sentences “that were not unanimously affirmed on appeal,” and thereby blurred “the traditional demarcation between executive clemency and judicial review.” See Acker, James R., Harmon, Talia, and Rivera, Craig, “Merciful Justice: Lessons from 50 Years of New York Death Penalty Commutations,” Criminal Justice Review 35 (2010): 189–90CrossRefGoogle Scholar.

44. See “Court of Appeal Law (1935),” in Laws of Jamaica. Rev. ed. 6:4696, 1938Google Scholar.

45. This pattern persisted after the Second World War, with the Privy Council Minutes recording only seven grants of clemency in thirty-three cases decided between 1945 and 1951, a rate of 21%.

46. “Bill to Establish Appeal Court Passes the Committee Stage of Council,” Gleaner, May 6, 1932, 7.

47. Reports in the Gleaner were used to estimate the number of appeals filed. Murder conviction figures based on a 5 year moving average calculated from data in the Blue Books for the Island of Jamaica, 1882–1938.

48. Blue Books for the Island of Jamaica, 1921–1938.

49. The number of executions in mid-twentieth century Jamaica fluctuated greatly from year to year, but on average there were 3.7 executions per year between 1930 and 1939 and 4.8 per year from 1940 to 1949. The most executions in any 1 year was 8 in 1943, and only one person was hanged in 1932 and 1934, respectively.

50. “Court of Appeal Sets Aside Death Sentence,” Gleaner, November 6, 1937, 1, 15.

51. “Johnson Murder Verdict Reduced to Manslaughter,” Gleaner, May 7, 1940, 1, 6.

52. “Court Reserves Judgment in Murder Appeal,” Gleaner, 8 April 1941, 7; and “Law Leads to Grave Miscarriage of Justice,” Gleaner, April 12, 1941, 21.

53. “Short Session of the Legislature Yesterday,” Gleaner, June 11, 1941, 15.

54. Under the original legislation, the Court of Appeal could assign a solicitor and/or counsel to an appellant when it appeared “desirable in the interest of justice” and the appellant could not otherwise afford legal representation. “The Court of Appeal Law (November 6, 1935),” in Laws of Jamaica, Rev. ed., 6:4686, 1938.

55. “Manchester Slayer to be Hanged,” Gleaner, December 9, 1937, 1.

56. G. Brown Execution for Murder, December 18, 1939, TNA, CO 137/837/13.

57. G. Brown Execution for Murder, TNA, CO 137/837/13.

58. “Defence of Poor Charged with Capital Offence Govt's Care,” Gleaner, April 22, 1938, 20.

59. “Twenty-Five Bills Ready for Legislative Council,” Gleaner, February 12, 1938, 1.

60. “Thursday Afternoon's Proceedings in the Legislature,” Gleaner, May 20, 1939, 29. Campbell's criticisms reflected in part that although the 1938 Poor Prisoners Law increased the basic fee payable to defense counsel in murder trials, unlike earlier legislation, it did not provide for a daily refresher fee and as a result, for any trial lasting more than 1 day, the total remuneration that a defense lawyer could claim declined. This was apparently an oversight, and it was corrected by an amendment in 1948. See “The Poor Prisoners' (Capital Offices) Defence (Amendment) Law, 1948,” JA, 1B/31/387-1948.

61. Jamaica Privy Council Minute Book (hereafter JPCMB), July 28, 1941, JA, 1B/5/3/43; May 31, 1943 and November 1, 1943, JA, IB/5/3/44; JSPPC, February 8, 1945, December 20, 1946, and February 13, 1947, TNA, CO 140/359.

62. Governor Arthur Richards to Colonial Office, August 15, 1940, TNA, CO 137/846/11.

63. “Murder Conviction from Turks Island Upheld on Appeal,” Gleaner, December 4, 1940, 17.

64. According to official correspondence, the JPC's decision to reconsider the case was taken even earlier when Fulford had spent “nearly five months” on death row. Officer Administering the Government to Lord Moyne, February 28, 1941, TNA, CO 137/846/11.

65. JSPPC, July 5, 1880, TNA, CO 140/173.

66. Report of commutation of death sentence passed on Letitia McDermott, January 21, 1884, TNA, CO 137/513/15. A capital sentence should not have been imposed on McDermott in the first place. The Offences Against the Person Law of 1864 provided for pregnant women convicted of capital crimes in Jamaica to be sentenced to penal servitude for life rather than death. See “The Offences Against the Person Law (1864),” in Laws of Jamaica, Rev. ed., 5:4499, 1938.

67. Murder Trials, Legal Aid, TNA, CO 137/853/4.

68. “Gallows, Hangman To Go To Grand Turk for Hanging,” Gleaner, July 29, 1943, 1.

69. Amelia was charged jointly with Daniel and also found guilty of the murder, although her death sentence was quickly commuted, and she did not appeal the conviction. In the opinion of both appellate courts, the trial judge had made sufficiently clear to the jury that the statement in question was relevant only to the case against Amelia herself and should not be considered as evidence either for or against Daniel. See “Seek Delay in Execution,” Gleaner, July 31, 1943, 1; and Daniel Youth v. The King, Privy Council Appeal, 1944.

70. JPCMB, December 11,1944, JA, 1B/5/3/45; “Life Sentence Instead Of Gallows for Turks Islander,” Gleaner, December 20, 1944, 1.

71. For death sentences handed down in the 1930s before the Valentine case in 1936, the average time from sentencing to the decision of the JPC was 27 days. Through the rest of the decade, the average delay was 50 days, and between July 1945 and May 1951 it was 81 days. Figures calculated from JSPPC, 1930 to 1939 and July 1945 to May 1951. Details of the Board of Visitors’ complaint are from JSPPC, March 2, 1945, TNA, CO 140/359.

72. Case of Percival Bennett, JSPPC, January 29, and February 2 and 18, 1946, TNA, CO 140/359. See also “Death Sentence Commuted to Life Imprisonment,” Gleaner, February 20, 1946, 1.

73. Director of Prisons, [telegram], to Colonial Secretary, May 26, 1945, JA, 1B/5/77/196-1943. White would become the first Jamaican condemned to death to appeal successfully to the Judicial Committee.

74. Secretary of State for the Colonies Oliver Stanley, Circular, July 18, 1944, TNA, CO/323/1878.

75. “Death Sentences, Gold Coast (Respites),” HC Deb March 3, 1947, 434:c41–48 http://hansard.millbanksystems.com/commons/1947/mar/03/death-sentences-gold-coast-respites (May 1, 2013).

76. Cyril Waugh v. The King, Privy Council Appeal, 1949; “His Grave Dug,” Gleaner, January 10, 1951, 1; “Slayer Dies on Gallows,” Gleaner, January 17, 1951, 7; and JSPPC, May 10, 1951, TNA, CO 140/359.

77. JSPPC, February 25, 1950, TNA, CO 140/359.

78. Wiener, Martin, An Empire on Trial: Race, Murder, and Justice under British Rule, 1870–1935 (Cambridge: Cambridge University Press, 2009), 229Google Scholar. On the centrality of law to British rule in Jamaica, see also Paton, Diana, No Bond but the Law: Punishment, Race, and Gender in Jamaican State Formation, 1780–1870 (Durham: Duke University Press, 2004)Google Scholar; and Kostal, Rande W., A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford: Oxford University Press, 2005)Google Scholar.

79. “‘New York Sun’ Writes on Youth Murder Case,” Gleaner, December 7, 1944, 10.

80. Schiffrin, Natalia, “Jamaica Withdraws the Right of Individual Petition under the International Covenant on Civil and Political Rights,” The American Journal of International Law 92 (1998): 563CrossRefGoogle Scholar. On the CCJ and the death penalty, see Gifford, Anthony, “The Death Penalty: Developments in Caribbean Jurisprudence,” International Journal of Legal Information 37 (2009): 202CrossRefGoogle Scholar.

81. Jamaica Parliament, The Charter of Fundamental Rights.

82. For a recent analysis of the issues in Lackey, see Simmons, Erin, “Challenging an Execution after Prolonged Confinement on Death Row [Lackey Revisited],” Case Western Reserve Law Review 59 (2009): 1249–70Google Scholar.

83. Deborah Fins, Death Row U.S.A. Summer 2013, NAACP Legal Defense and Educational Fund, 2013 http://www.naacpldf.org/files/our-work/DRUSA_Summer_2013.pdf (February 20, 2014).

84. Memorandum of Justice Stevens respecting the denial of certiorari, Clarence Allen Lackey v. Texas, March 27, 1995 http://www.law.cornell.edu/supct/html/94-8262.ZA.html (February 20, 2014). See Flynn, Kathleen M., “The ‘Agony of Suspense’: How Protracted Death Row Confinement Gives Rise to an Eighth Amendment Claim of Cruel and Unusual Punishment,” Washington and Lee Law Review 54 (1997): 300–302Google Scholar. Aarons, Dwight, “Can Inordinate Delay Between a Death Sentence and Execution Constitute Cruel and Unusual Punishment?” Seton Hall Law Review 29 (1998–99): 178–81Google Scholar.

85. Recent decisions suggest that the Supreme Court may be moving away from relying on the evolving standards of decency test in Eighth Amendment cases. See Stinneford, John F., “Evolving Away from Evolving Standards of Decency,” Federal Sentencing Reporter 23 (2010): 87–91CrossRefGoogle Scholar.