Conviction for ganja prevented US schooling
A young Caymanian man who was told a year ago that he would not able to continue his university studies in the United States because of a ganja conviction has received a gubernatorial pardon.
The conditional pardon, issued by Cayman Islands Governor Duncan Taylor on 16 April, was granted to Anthony Devin Berry of Bodden Town “for the purpose of affording you an opportunity to resume your interrupted studies and with all other rights and privileges associated therewith”.
Mr. Berry was convicted in Summary Court on 13 December, 2010, of consumption of ganja, for which he received a $500 fine.
That rather minor criminal conviction paled in comparison to its effect on Mr. Berry’s life when he got off a plane in Texas to start his second semester at school and was turned around by US authorities. Last year, Mr. Berry’s attorney, James Austin-Smith, stated that the young man was refused a student visa and was told he would be permanently ineligible because of the 2010 conviction for ganja.
“He was a silly, arrogant boy, but that’s not who he is now,” Mr. Austin-Smith told the Court of Appeal in March 2012.
The Caymanian Compass contacted Mr. Berry on Tuesday about the pardon, but he declined to comment on the matter.
According to section 39 of the Cayman Islands Constitution Order, 2009, the governor may grant pardons to any person convicted of any offence in the islands.
The pardon can consist of a respite for a period from the sentence given by a court, substitute a less severe form of punishment or remit a part of or the entire sentence.
In granting such a pardon, the governor must consult with the Committee on the Prerogative of Mercy, which includes the attorney general and the chief medical officer of the Health Services Authority.
“The impact of his punishment was, in the governor’s view, disproportionate,” said Tom Hines, a staffer in the governor’s office. “It meant, in effect, that he couldn’t complete his studies.”
Mr. Berry was given a second chance to erase the ganja conviction, according to appeal court Justice Abdullah Conteh. Justice Conteh said in March 2012 that Mr. Berry, while his case was before the Summary Court, had refused to enter the Drug Rehabilitation Court programme. If he had done so, as another individual accused in the ganja case had done, he would have been free and clear, the judge said.
The judges also referred to the sentencing notes of Magistrate Nova Hall. She had said that probation would normally have been the appropriate way to deal with Berry’s rehabilitation. However, the report prepared by the probation officer described him as “nonchalant”. It said he had missed appointments, did not show any remorse, and tested positive for ganja twice, including once just prior to sentence.
Magistrate Hall said she saw “no effort” by Mr. Berry to be rehabilitated and she found no basis for not recording a conviction.
Court president Sir John Chadwick said Mr. Berry’s attitude toward ganja consumption was not uncommon among his generation and there was nothing before the court to suggest his attitude had changed. He continued, “The law is the law and you can’t decide at age 18 that it doesn’t apply to you because it’s a silly law anyway.”
Mr. Berry had only one semester left to go at the Universal Technical Institute in Houston when he was refused a US student visa.
Case inspired legislator
Bodden Town representative Dwayne Seymour said last year that too many young people in the Cayman Islands are paying too high a price for their first criminal offences and has previously referenced Mr. Berry’s case as an example.
“Criminal records often prevent them from finding work, particularly as more people vie for a smaller pool of positions,” Mr. Seymour told the Legislative Assembly as he introduced a private members motion that seeks to change the Rehabilitation of Offenders Law in November.
Mr. Seymour said he was seeking legislation in the Cayman Islands similar to that proposed in 2009 by US Congressman Charlie Rangel.
Mr. Rangel’s Second Chance for Offenders Act permits the expunging [or clearing] of records for individuals convicted of a first, non-violent offence as long as they fulfil all requirements of the sentence set by a court, remain free from dependency or abuse of alcohol and controlled substances for a minimum of one year, obtain a high school diploma or equivalent and complete at least one year of community service.
Mr. Seymour proposed that some or all of those measures could form any part of a bill Cayman lawmakers might enact.
“It’s not just a situation where we’re saying ‘you made a mistake, no problem. We will expunge this, go make another mistake’,” Mr. Seymour said.
“Sometimes offences are left on record for five years, seven years depending on what it is. We don’t want a person to wait for five years or seven years to find employment again. We’re talking about offences that you don’t even go to prison for.”
The existing Rehabilitation of Offenders Law (1998 Revision) makes provision for convictions that are treated as “spent” in certain criminal cases. Any obligation required of the offender to disclose the details of a conviction is removed when that conviction is considered “spent”.
Sentences excluded from rehabilitation include those with a prison term of more than 30 months.
Caymanian Compass journalist Carol Winker contributed to this report.