NATIONAL CRIME RESEARCH CENTRE SUMMARY OF RESEARCH FINDINGS ON REVIEW OF THE MANDATORY DEATH SENTENCE UNDER SECTION 204 OF THE PENAL CODE IN KENYA

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1 NATIONAL CRIME RESEARCH CENTRE SUMMARY OF RESEARCH FINDINGS ON REVIEW OF THE MANDATORY DEATH SENTENCE UNDER SECTION 204 OF THE PENAL CODE IN KENYA PRESENTED TO: CONSULTATIVE WORKING GROUP ON THE REVIEW OF THE MANDATORY DEATH SENTENCE AT THE ATTORNEY GENERAL S BOARDROOM 5 TH FEBRUARY, P a g e

2 SUMMARY OF RESEARCH FINDINGS ON REVIEW OF THE MANDATORY DEATH SENTENCE UNDER SECTION 204 OF THE PENAL CODE IN KENYA NATIONAL CRIME RESEARCH CENTRE JANUARY Introduction 1.1 The Global and Regional Context of the Death Penalty Debate There has been a sustained global debate over the last fifty years in regard to the application of the death penalty with opposing viewpoints expressed by abolitionists and retentionists with equal fervour. The death penalty is a topic on which much has been written because of its complex and contentious nature. The arguments for and against remain principally the same and have been much canvassed. The argument usually put forward for the death penalty is that it deters crime, prevents recidivism, and is an appropriate punishment for the most serious crimes. But those opposed to the death penalty argue that it does not deter criminals more than would do life imprisonment, that it violates human rights, that it entails running the risk of executing some who are wrongly convicted, and that punishment that allows criminals to reflect and reform themselves is more appropriate than execution. As such, the debate around the death penalty continues to be divisive within and outside States It would therefore seem that there is nothing new to say on the subject. However, new interesting developments have emerged. Among the new developments are judicial decisions in some countries and study reports by government and nongovernmental agencies. Some quarters have made claims to the effect that there is no known method of carrying out the death penalty that is not in some degree cruel or inhuman while there has been public admission by some judges and prisons commissioners in a number of countries that passing the death sentence and executing condemned persons have a brutalising and traumatic effect on the sentencing judge, on the executioner and on the family of the condemned person. It appears there is a worldwide trend toward abolition in International Law under the leadership of the United Nations and the Council of Europe, which have all but 2 P a g e

3 outlawed the death penalty through several human rights declarations, covenants and treaties. But that as may be the case, some nations including the United States have consistently kept aloof from all such commitments. Globally, out of the 193 Member States of the United Nations, more than 170 countries with a variety of legal systems, traditions, cultures and religious backgrounds have either abolished or apply moratorium legally or in practice. The African Commission on Human and Peoples Rights (ACHPR) officially adopted the draft protocol at its 56 th ordinary session in April 2015 and submitted it to the AU for adoption. As of July 2017, 20 member States of the African Union had legally abolished the death penalty. Eighteen (18) member States apply a de facto moratorium on capital punishment while 16 retain the death penalty. Countries have utilized the death penalty invariably for different offences/crimes. The death penalty in the United States is used almost exclusively for the crime of murder. In total, US has 41 capital offences, that is, the crimes of treason; aggravated kidnapping; drug trafficking; air craft hijacking; placing a bomb near a bus terminus; espionage; Aggravated assault by incarcerated, persistent felons; and attempting, authorizing or advising the killing of any officer, juror, or witness in cases involving a Continuing Criminal Enterprise, regardless of whether such killing actually occurs. In China, there are 47 offences that are eligible for death penalty and many of the offences are non-violent and economic criminal offences (Chinese Gov. Website). 2.0 THE KENYAN SITUATION Kenya is one of the eighteen (18) African Union member states applying a de facto moratorium on capital punishment. 2.1 The Law on Mandatory Death Penalty The Kenyan Penal Code provides for a mandatory death penalty for five (5) crimes, that is, murder (Section 204), robbery with violence (Section 296(2), attempted robbery with violence (Section 297(2) of the Penal Code), administering an oath purported to bind a person to commit a capital offence (Section 60 of the Penal Code) and treason (Section 40(3). Some Military offences are also punishable by death under the Kenya Defences Act, No.25, 2012 Laws of Kenya. 3 P a g e

4 2.1.1 A de facto moratorium? Much as the death penalty still remains in the laws, Kenya has practiced a de facto moratorium of the death penalty since In the year 2003, President Mwai Kibaki commuted 223 death row convicts to life imprisonment. This included 28 prisoners who were subsequently released after serving between 15 and 20 years on death row. In 2009, President Kibaki again commuted the death sentences of more than 4,000 death row in-mates. While commuting the sentences the President observed that extended stay on death row causes undue mental anguish and suffering, psychological trauma, anxiety and constitutes inhuman treatment. Recently on the 20 th of October 2016, President Uhuru Kenyatta commuted the death sentences of all the 2,747 convicts then held on death row to life imprisonment. These included 2,655 men and 92 women Issues surrounding the Mandatory Death Sentence Legal Provisions For many years the death penalty (especially the mandatory on) had been seen as the ultimate punishment in all penal systems. It has been justified on the ground that society need to rid itself of dangerous persons. It was universally accepted without any question. However some of the countries that have recently made notable strides towards limiting the imposition of the death penalty, have approached it from the perspective that death penalty may only be imposable for the most serious crimes. Which bring us to the question whether this is the case in the Kenyan laws. I. A reading of the Kenyan Penal Code reveals that the Mandatory Death Sentence is not solely reserved for the most serious crimes. The sentence for the felony of robbery [PC section 296(1)] is 14 years imprisonment but Section 296 (2) provides that If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death. The challenge here is that this broad definition of robbery with violence, could see one end up on death row for the mere fact that he was in the company of another. In fact, from analysis of crime research data by NCRC, majority of those on death row are robbery with 4 P a g e

5 violence offenders. The National Police Service recorded 2066 cases of robbery with violence compared with 1777 cases of murder in year II. III. IV. The International Crimes Act (Cap 16 L.O.K) which was enacted in the year 2008 provides that the provisions of the Rome Statute relating to penalties shall have the force of law in Kenya. The finding is that if one were to be tried under this Act, for committing genocide, crimes against humanity or war crimes, the person would be liable to a maximum sentence of life imprisonment as provided under the Rome Statute as opposed to death. In 2010, the Court of Appeal egged the country towards abolition when it held in the Mutiso 1 case that the mandatory death penalty was unconstitutional. The Appeal Judges declared section 204 of the Penal Code (which provides for mandatory death sentence for murder) inconsistent with the letter and the spirit of the Constitution to the extent that it provides that the death penalty is the only sentence for murder. The Court lamented that Unfortunately in this country no one, as far as we are aware, has raised the issue of whether the delay in execution of prisoners who have been on death row for a long period of time is inconsistent with constitutional provisions and such issue is not raised before us in this appeal. A reverse position was adopted by the High Court which held in the Dickson Mwangi Munene case of that the death penalty was the only sentence imposable in law for murder and that the Court of Appeal s take on the issue was a significant step in the wrong direction. The Judge in this instance further described the President s commutation of 4,000 death sentences to life imprisonment as utter disregard of his constitutional duty, stating: "The President should have exercised his cardinal responsibility of signing all the pending death warrants. To fail to exercise a legal duty is an abrogation of trust and breach of duty." 1 Godfrey Ngotho Mutiso vs. Republic, available at This was also followed in David Njoroge Macharia v Republic [2011] eklr 2 Republic vs. Dickson Mwangi Munene and another, available at 5 P a g e

6 V. The Law Courts on the other hand have continued to issue the death sentence. A budgetary allocation is made each year for servicing of the gallows on the understanding that for as long as the death sentence remains in the statutes, the means of execution must be available at all times. The situation is that the sentences are passed but are not carried out; death convicts do not work to contribute to their up-keep; death-row blocks are overcrowded in the prisons leading to commission of other crimes behind bars. Further, servicing of the gallows, which are normally located next to the death-row blocks, has severe psychological effects on both the inmates and the Prison Officers. VI. VII. The criminal case from entry, processing and disposal institutions under the administration of criminal justice system cannot be full proof and mistakes in the administration of justice will be made as was noted in the case of Joan Chebichii Sawe 3 who had been sentenced on circumstantial evidence. As Justice Thurgood wrote 4, no matter how careful courts are, the possibility of perjured testimony, mistaken honest testimony and human error remain too real. On the 14 th December, 2017, the Supreme Court of Kenya, in petition case No. 5 of 2015: Francis Karioko Muruatetu and anothers and the Republic, ruled that the mandatory nature of the death sentence as provided for under Section 204 of the Penal Code was unconstitutional. However, for the avoidance of the doubt, the Order did not disturb the validity of the death sentence thus maintaining that the sentence remained valid as contemplated under Article 26 (3) of the Constitution which states that: a person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law. 3 Joan Chebichii Sawe V Republic, Criminal Apeal no 2 of Furman v Gergia, 408 U.S 238, [1972] 6 P a g e

7 3.0 NATIONAL PUBLIC DEBATE AND RESEARCH ON CAPITAL OFFENCES AND PUNISHMENT The Power of Mercy Advisory Committee (POMAC) in conjunction with the Kenya National Commission on Human Rights (KNCHR) and the National Crime Research Centre (NCRC) conducted a National Public Debate on Capital Offences and Punishment between May and November, The objectives of the nationwide debate were to amongst others to: i. collect views from Kenyans on their opinion in regard to 1capital punishment and the form of punishment capital offenders should be subjected to; and ii. recommend measures of alternative punishment for capital offences or any other legal, political and administrative measures in the management of capital offences and administration of capital punishment. The Public Hearings brought together different stake holders drawn from the members of public, agencies in administration of criminal justice, special interest groups, civil society, media and religious groups to debate on the death sentence. A total of 1219 adult participants made oral submissions while 14 written submissions were presented. Of those who gave oral submissions countrywide, 43.9% were from the local community, 28.6% were Government employees, 11.6% comprised of special interest groups such as youth, women and PLWDs, 11.4% were religious groups from the different faiths, 3.1% were from civil society while 1.4% were professionals resident within the 42 counties where the public debates were held. Out of the total participants, 78% were male and 22% were female. Recordings of the Public Hearings have been preserved in Hansards that are available at the POMAC Library. The public debates were held alongside a questionnaire based research study on Capital Offences and Capital Punishment in all the 47 counties. Some of the specific objectives of the research were to: i. Find out factors that contribute to offenders committing capital offences in Kenya. 7 P a g e

8 ii. iii. Establish public perception on retention or abolition of capital punishment in Kenya. Examine the victim support services in Kenya The study interviewed a total of 4703 members of public who comprised 2840 males (60.4%) and 1863 females (39.6%). In addition, 256 public officials drawn mainly from the Criminal Justice System were interviewed. 3.1 Summary of Findings Extracted below are some of the findings in the public debate and the questionnaire based survey in relation to the TOR of the Taskforce Factors leading to commission of capital offences The main factors contributing to capital offences were found to be poverty/high cost of living (reported by 38.10% of members of public and 42.7% of public officials), Drug abuse/alcoholism (reported by 27.50% of members of public and 28.6% of public officials) and unemployment (reported by 23.70% of members of public and 15.4% of public officials). Mitigation against the high incidences of capital offences would necessitate societies to address these contributory factors Perceptions on Retention or Abolition of Capital Punishment in Kenya In gauging the perceptions on retention or abolition of capital punishment in Kenya, a total of 4703 members of public were asked to abstractly indicate if they were in favour, or otherwise, of the death penalty as currently legislated. A majority (56.9%) of the respondents amongst the general public did not favour the death sentence while 43.1% supported retention. Further, responses from public officials working within the criminal justice system returned a finding of 53.9% in support of retention of death sentence while 46.1% were against. However, from the public hearings, a large number of the people who submitted advocated for the retention of death sentence in Kenya while a minority leaned towards abolition. These apparent disparate findings from the research study and Public Hearings further epitomise the complexities, controversies and contention that characterize the death sentence debate. 8 P a g e

9 Members of the general public and officers who were in favour of retention (that is, the 43.1% of members of general public and 53.9% of public officials who supported retention of death sentence) were further probed on the death sentence in relation to specific capital offences. The table below shows the opinion of the respondents on the capital sentence eligible offences as currently coded in the penal law. The question was posed whether the respondent feel the offence deserves the punishment of death. The findings indicated that death sentence was preferred by majority of the respondents for each of the six (6) capital offences. Table 1: Opinion of the respondents on the capital sentence eligible offences OFFENCE TYPE Treason (Penal Code 40 (3) P.C.) Oath to commit a capital offence (S.60.PC) Murder (Sec.204. P.C.) Robbery with violence (Sec. 296(2) P.C.) Attempted Robbery with violence (Sec. 296 (2) P.C.) Military Offences not resulting into death RESPONSES MEMBERS OF PUBLIC PUBLIC OFFICIALS Frequency Valid Percent Frequency Valid Percent Yes % % No % % Yes % % No % % Yes % % No % % Yes % % No % % Yes % % No % % Yes % % No % % 9 P a g e

10 From the above findings, the highest frequency in the six (6) offences was 1906 in the case for Murder. and for public officials, the highest frequency in the six (6) offences was 124, similarly, for murder Reasons adduced by respondents who opposed the Death Penalty Some of the reasons adduced by respondents who opposed the death penalty both at the public hearings and in the questionnaire based survey were: everyone is entitled to a second chance in life; death sentence deprives offenders of the opportunity to change; life is sacred and that death sentence is a cruel dehumanizing process which violates right to life and human dignity and only God has the right over human life; death sentence contradicts Article 26(1) of the Constitution and the UN declaration on Human Rights, to which Kenya is a signatory; there has been no conclusive evidence that death sentence deters crime; it is not risk free as there is a chance of innocent people being wrongly convicted; and the poor and the less privileged form the majority of persons on death sentence; offenders should be given a chance to reform; treason can be abused by those in power to punish those rivals agitating for change; Offender might have been negatively influenced in the administration of Oath; some murders are committed unintentionally, may be as a result of Mental Illness, may have been committed out of self-defense; and in the case of Attempted Robbery with Violence, the Offender is mostly sentenced on the ingredients of the offence having prevailed despite the sometimes little harm or loss caused by the act. To this end some respondents opined that attempted robbery with violence be excluded from the category of capital offences Reasons adduced by respondents who supported the Death Penalty On the other hand, reasons advanced for retention of death sentence bordered mostly on a strong public belief in retributive justice. As aforementioned, reasons for or against the death penalty are usually similar irrespective of the different societies. Table 2. below shows the reasons advanced for supporting retention of the death sentence as analyzed from the questionnaire survey. 10 P a g e

11 Table 2. Reasons advanced for supporting retention of the death sentence REASONS FOR SUPPORTING RETAINING OF DEATH PENALTY Capital Punishment acts as a deterrence for future Crimes Ensures that Convicts are never released back to the society as they may pose a threat in future It is the most effective means of achieving justice for victims & Provides Closure to Victims, family and Society The severity of a crime should mandate an equally severe punishment MEMBERS OF PUBLIC PUBLIC OFFICIALS N %tage of Cases N %tage of Cases % % % 0 0% % % % % Those accused of capital crimes do not deserve % % an opportunity to reform Reduces the chances of convicts escaping from % % prison May Impose less financial burden on the state % % Ensures jails are not overpopulated/ overcrowded Prison Infrastructure is adequate to accommodate such prisoners Ensure the convict does not have a chance to threaten victims/witnesses Ensure convicts do not have a chance to get out through corrupt means % % 95 2% 3 2.3% % % 9 0.2% 4 3.0% Opinion on emerging crimes On emerging crimes, respondents in both the Public Debates and the questionnaire survey who supported retention of the death sentence suggested that the following crimes be categorized as capital offences punishable by death:- 11 P a g e

12 a) Defilement of children of tender years b) Rape of the elderly c) Economic crimes d) Drug trafficking e) Illicit brewing f) Terrorism g) Incitement to violence It was a finding from the public forums that even those opposed to the death penalty were of the opinion that these crimes should be treated as very serious offences and thereby attract stiff penalties such as Life Sentence without option of parole. The specific findings from the questionnaire survey indicated that many respondents would wish sexual offenders to be severely punished as shown in Table 3. below. Table 3: opinion on crimes that deserve imposition of capital punishment OTHER CRIMES THAT SHOULD BE PUNISHABLE MEMBERS OF PUBLIC PUBLIC OFFICIALS BY DEATH N %TAGE OF CASES N %TAGE OF CASES Rape % % Defilement % % Terrorism % % Economic Crimes/Corruption % 7 8.1% 4.0 LIFE IMPRISONMENT: Life sentences in Kenya today stand at an unprecedented level: as of 30 th January 2018, 6,917 people in prison were serving a life sentence. This translates to more than 28% of the 24,594 convicted offenders as at that date. This means that one in every four people in prison today is serving a life sentence. These numbers have risen disproportionately mainly due to the many convictions under the sexual offences act with a prescriptive life sentence for certain degrees of the offences and the commutations of death sentences into life sentences. 12 P a g e

13 During the public debate, most of the proponents for abolition of the death penalty proferred Life Sentence as the alternative to Death Sentence. As to the length of the Life Sentence, both sides of the divede in the death penalty expressed varying opinions to what should constitute Life Sentence. As it is today Life Sentence in Keneya means imprisonment till the expiry of the offenders natural life, without parole save for the instances when clemency may be extended in line with the provisions of Article 133 of the Constitution. The following proposals were prominent in order of frequency during the public forums. - a) Life imprisonment be absolute without the possibility of parole. The Executive may however positively grant the petitions of reformed and remorseful lifers as provide in our laws. b) Life Sentence to be equated to a determinate period ranging between 15 to 70 years with an option of parole for reformed and remorseful inmates. c) Equate the Life Sentence to an upper age limit to be reached by the offender ranging between 60 to 110 years with the justification that persons of such age are too frail to engage in crime. d) The Life Sentence to be proportionate to the age of the offender; the younger an offender is the longer the number of years equated to his sentence. The specific findings from the questionnaire survey indicated that 51.1% of respondents in the general public category were in favour of life imprisonment without limit while 48.1% recommended alternative durations for life sentences as compared to 43.9% respondents in the public officials category who supported life sentence without limit, with 56.1% recommending determinate life sentence. Of those who recommended a life sentence with a limit, majority (57.8%) of members of public recommended 30 years as the maximum length; 33.2% suggested a length of between years while 24.6% suggested a duration of less than 21 years. Table 3 below is a representation of these findings from the study. 13 P a g e

14 Table 4: Proposed Lengths of the Life Sentence PROPOSED LENGTH OF LIFE IMPRISONMENT MEMBERS OF PUBLIC PUBLIC OFFICIALS N %TAGE OF CASES N %TAGE OF CASES Less than 21 years % years % years % years % years % yrs % Life with option of condition of parole after 10 to 25 years Duration dependent on the age of the offender at time of sentencing % % 5.0 VICTIM SERVICES Victims of criminal conduct are entitled to a range of services from organisations in the criminal justice system. The Victim Protection Act, 2014 (LOK) gives effect to Article 50 of the Constitution; to provide for protection of victims of crime and abuse of power, and to provide them with better information and support services; to provide for reparation and compensation to victims and to provide special protection for vulnerable victims. The criminal justice system may become engrossed in punishing the offender while the Human Rights agencies concentrate on pushing for the rights of the offender rendering little attention to the victim of the offence. The survey sought to find out the awareness levels of the law on victim protection amongst the respondents. The findings on the level of awareness of the existence of the legal provisions for victim services established that 52.0% of the members of respondents in the 14 P a g e

15 general public category were aware about victim support services. A high of 84.5% of the respondents in the public officials category were aware. When asked about the victim services they would recommend as part of restorative justice for victims of capital crimes in Kenya, the respondents gave replies that mirrored the provisions of the Victims Protection Act. These included economic empowerment such as employment and financial compensation for victims (reported by 41.0% of members of public and 75.6% of public officials), guidance and counseling (reported by 17.5% of members of public and 55.6% of public officials), free medical attention, legal assistance and security/witness protection. Table 4. Below shows the responses Table 5: Suggestions for victim support services RECOMMENDED VICTIM SUPPORT MEMBERS OF SERVICES PUBLIC N %tage of cases PUBLIC OFFICIALS N %tage of cases Free Medical attention % % Economic empowerment for victims e.g % % employment, financial compensation. Guidance and counseling % % Legal assistance 413 5% % Security/witness protection % % Justice/fair hearing 568 8% % Sensitization/awareness on plight of % % victims Free education for victims % % Community/religious support % 6 2.6% Facilitate reconciliation between 168 2% % victims/offenders and their families. Relocate offender to reduce cases of 153 2% % trauma and revenge against the victim Rescue Centers/Homes for victims 72 1% % 15 P a g e

16 As noted above, most of the victim support services that were suggested by the respondents are catered for under Part IV of the Victim Protection Act No. 17 of The finding therefore points to a likely information and knowledge gap on the part of the community members and key players in the administration of criminal justice. It also suggests a likely weak implementation of the provisions of the Act. There is therefore need for sensitization and implementation of the provisions of the Victim Protection Act. 6.0 REVIEWING THE REALM OF DEATH PENALTY Findings and Experiences from various researches, including the public debate reveal areas that require focus in a review of the management of the death penalty. 1. Point of arrest activities including Charge Sheet, Victim services, out of court settlement, unreported and reported crimes, etc. Congestions in the prison are symptomatic of dysfunctional criminal justice system. Those who end up in prisons begin their journey at the point of arrest. Studies conducted in Kenyan prisons show that many people in prisons may be victims of abuse of power by enforcement officers - arbitrary arrest, confinement and incarceration. Studies of police performance in Kenya shows nearly two-thirds of the felony criminal cases are innocent men and women framed for crimes that did not commit. In some instances, arresting officers may frame poor people who may have limited formal education in order to conclude investigations quickly and have people go through courts on the basis of a mere accusation, simply for being in the wrong place at the wrong time, or even for being unable to pay bribes to a corrupt officer. 2. Efficacy and adequacy of prosecution process including case management, pretrial delays, monthly lockup rate, plea bargains, etc. Delays in accessing justice for people who come in contact with the criminal justice system, may lead prolonged pre-trial confinement, unfair trials that result in imprisonment of sometimes very innocent people who may overstay on remand. 16 P a g e

17 A 2013 baseline survey by the Independent Policing Oversight Authority (IPOA) found out that in nearly 2 out of every 3 felony cases examined that went to full trial, police never gathered enough evidence to charge (let alone convict) the accused person with a crime 5. In 2012, the IJM team and partners estimated that 15-30% of prisoners awaiting trial in Nairobi s Industrial Remand Prison alone may be victims of police abuse 6. Without access to legal recourse many such persons end up being defenseless victims of police abuse of power and waste away in jails for years. Such sudden, arbitrary imprisonment leads to unnecessary congestions in the Kenyan prisons. 3. Behind bar schooling, behind bar working, crime and violence prevention. The durations in prison is a time during which the inmate s labour could be tapped for the benefit of his/her upkeep while in custody, their resettlement and reintegration in case of future release on pardon and for their dependants maintenance and victim compensation in a programme of enhanced Prisoners Earnings. 4. Life sentence with durations Life sentence durations need to take into consideration such aspects like rehabilitation and reformation, age at which criminality tendencies tend to reduce with increased age and terminal illnesses. All these could address prison congestion and unnecessary expenditure on prisoners who are no longer a serious threat to society. 5. Sensitizations on and implementation of the Victim Protection Act It is recommended that members of the community/public and other state and nonstate actors be sensitized on the provisions of the Victim Protection Act with regard to victim services. The agency (or agencies) responsible for implementation of the Act requires adequate facilitation to deliver the required services to victims of capital offences. 5 IPOA 2013 Baseline Survey: 6 International Justice Mission, Kenya. 17 P a g e

18 6. Redefining capital offences From the sentiments received in Public Debates and the research study, it is clear that there is need to review the management of capital offences particularly those under sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code. The following factors may be considered in such reviews: 1. the age of the convicted criminal prisoner at the time of the commission of the offence; 2. the circumstances surrounding the commission of the offence; 3. whether the person, for whose benefit the petition is made, is a first offender; 4. the nature and seriousness of the offence; 5. the personal circumstances of the offender at the time of making the petition, including mental and physical health and any disabilities; 6. the interest of the State and community; 7. the official recommendations and reports from the State organ or department responsible for correctional services; 7. Alternative sentencing for Death Penalty From the foregoing, the way forward appears to be a limitation of the scope of the death penalty, prescription of alternative sentences to some of the offences that currently attract the death penalty, apply the death penalty for the most serious crimes and similarly prefer determinate sentences in place of the prescriptive life sentence. 18 P a g e