Ch. 01-International Human Rights by NYU Law Center for Human Rights and Global Justice

Chapter 1. Human Rights Concepts and Discourse

This introductory chapter assumes no special knowledge about the foundations or content of rights, human rights and international human rights. Rather it is meant to spur thoughts about a range of issues that later chapters examine.

The two sections of the chapter explore some fundamental questions from complementary perspectives. Section A involves using media reports to explore current and pressing human rights issues. In many of the relevant situations, courts are likely to have played at best a marginal role.

In Section B, by contrast, the focus is on the way that courts from different states address and argue about alleged violations of rights. The section explores challenges to the legality of capital punishment under state laws and in light of developing international human rights law. These materials illustrate the growing attention by national courts to foreign law, whether constitutional, statutory, or judicial, to learn how other countries reason and decide about the permissibility of capital punishment (and many other issues). Those inquiries lead us to what is often described as the special situation of the United States with respect to human rights (and other ﬁelds), that involves so-called U.S. exceptionalism or unilateralism.

A. GLOBAL SNAPSHOTS

One way for teachers to introduce the issues dealt with in this book is to identify a range of current media reports describing some of the diverse human rights problems that the world confronts, and ask students to identify how they think human rights might be implicated. When reading such reports, consider the following questions:

• What is the source of the rules or standards under which governmental, inter-governmental and nongovernmental organizations evaluate and criticize a state?

• What different roles do the types of organizations referred to in these reports seem to play?

• How would you identify the alleged human rights violation in each story? Is it clear from each story that (if the reported facts are true) there has been a violation?

• In addition to the rights of individuals, are there cases that implicate the rights of groups?

• Are (international) human rights violations committed only by states, or are corporations, nongovernmental forces, and individuals also accused of such violations?

• What steps, if any, seem to be, or perhaps could be, taken to bring an end to the violations?

B. HUMAN RIGHTS DISCOURSE: CAPITAL PUNISHMENT

Section A drew attention to media accounts to illustrate the range of issues implicated in human rights doctrine and discourse. For the most part, the role of courts is likely to have been limited.

Section 1 below differs in several respects. It examines one broad issue, capital punishment, either in general or with respect to a particular category of criminal defendants. And it examines some illustrative judicial decisions to explore the argument of courts, and the evolving character of human rights discourse in the hands of courts, those most ‘legal’ of institutions. It is important to bear in mind that much of the invocation of rights and many of the arguments in these decisions are phenomena of the last seventy or so years. Many of the international institutions to which these courts refer simply did not exist before then and such extensive consideration by courts of case law from other jurisdictions was rare.

Section 2 considers the degree to which these courts and other national and international organs (parliaments, UN or regional bodies) form part of a global framework of interaction and discourse. Among the questions raised are the following: do many national courts look to international law, or to the law in foreign states, whether judicial or legislative or constitutional in form, as part of their inquiry and research into a concrete human rights issue? Do they ask (even if not formally bound by a treaty or customary law): what does international law have to say about this, or what do other states have to say about this? In a broader sense, to what extent can we say that some form of world community is developing among the judiciaries or legislatures

of many states with respect to human rights issues, at least with respect to interest in what other states are saying about common issues?

Section 3 takes a look at the United States, and at the critical and sceptical stance that it has taken for many years towards international law and decisions of other states on controverted human rights issues. This stance goes by many terms that carry different shades of meaning, such as ‘unilateralism’, or ‘exceptionalism’. Sections 1 and 2 provide pertinent background for the readings about and inquiry into these terms. Indeed, Section B in its entirety raises questions that reappear and continue to be troubling in later chapters of this book.

1. The Rapidly Changing Law on Capital Punishment

In 1965 only 25 countries had abolished the death penalty, and by 1998 only 35 countries had done so. But by 2020 the abolitionist movement had been so influential that only 54 out of some 190 countries imposed death sentences, and only 18 actually carried them out. One factor in such dramatic progress was a series of international treaties requiring states to abolish the death penalty. They include the 1989 Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) (90 states parties in 2024), the 1990 Protocol to the American Convention on Human Rights to Abolish the Death Penalty (13 states); and Protocols 6 (1983) and 13 (2002) to the European Convention on Human Rights (46 and 44 states respectively).

Amnesty International tracks the number of people executed around the world each year. For 2022 it recorded 883 executions (up from 579 in 2021) in 20 countries, with the most executions taking place in China, Iran, Saudi Arabia, and Egypt. China is believed to execute thousands each year, but the data are classified as a state secret. North Korea and Vietnam are also considered to have high executions rates, but are also very secretive.1

In 2004, the Chinese Government told the UN that abolition of the death penalty ‘must proceed in pace with the respective stages in the development of a society; if it is decided to abolish the death penalty before a society has reached the necessary level of development, this may cause a number of social problems … . Each country should decide whether to retain or abolish the death sentence on the basis of its own actual circumstances and the aspirations of its people. (UN Doc. E/CN.4/2004/7/Add.1 (24 March 2004), para. 69. Soon thereafter, China greatly limited the range of crimes for which the death penalty can be imposed, and gave the Supreme Court oversight of all death sentences.

In 2007 the UN General Assembly adopted a heavily contested resolution calling for a global ‘moratorium on executions with a view to abolishing the death penalty’. 104 states supported the resolution. By 2022 the biennial resolution garnered 125 votes in favor, 37 against and 22 abstaining (Res. 77/222).

The Nuremberg and related trials after the Second World War imposed the death sentence on certain defendants. But the maximum penalty for persons convicted of war crimes, crimes against humanity, or genocide by the International Criminal Tribunals created by the UN Security Council for the Former Yugoslavia and for Rwanda, or by the International Criminal Court, is life imprisonment, and in practice the various courts have sought to develop global norms that are less punitive than most national jurisdictions.

Arguments about Justiﬁcations for Continuing or Abolishing the Death Penalty

For centuries, philosophers, religious ﬁgures, law enforcement agencies, defence counsel, criminologists, and the general public have argued about this issue from many different perspectives. To take one early example, Cesare Beccaria wrote in An Essay on Crimes and Punishments (1764), chapter XXVIII:

What right … have men to cut the throats of their fellow-creatures? Certainly not that on which the sovereignty and laws are founded. … Did anyone ever give to others the right of taking away his life? …

1 Amnesty International, Death Sentences and Executions 2022 (2023).

[The death penalty is] a war of a whole nation against a citizen, whose destruction they consider as necessary or useful to the general good. …

The death of a citizen cannot be necessary but in one case. When, though deprived of his liberty, he has such power and connections as may endanger the security of the nation; when his existence may produce a dangerous revolution in the established form of government. …

[T]he punishment of death has never prevented determined men from injuring society …

It is not the intenseness of the pain that has the greatest effect on the mind, but its continuance … .

In response to especially heinous or sensational crimes, demands to reinstate the death penalty are often heard. Just as retentionists value the principle of ‘an eye for an eye’ in response to atrocious crimes, so too have abolitionists tended to treat the death penalty as a litmus test for humane policies across the board.

The South African judicial decision below, issued at the very start of the post-apartheid regime, rehearses many of the leading contemporary arguments. Advocates and courts cast those arguments both in terms of justice and fairness, and in instrumental terms that take into account the effects/consequences of capital punishment on the incidence of crime and other matters. The arguments often fall within the broadly invoked categories of retribution, fairness (including the issue of discrimination) and deterrence. This is followed by a Kenyan case that shows a more reticent bench nonetheless relying on international precedents to eliminate the mandatory death penalty. Finally, consideration is given to a recent resurgence of judicial support for the death penalty in India, primarily in response to very serious sexual crimes.

STATE V. MAKWANYANE

CONSTITUTIONAL COURT OF THE REPUBLIC OF SOUTH AFRICA, CASE NO. CCT/3/94, [1995] 1 LRC 269

[The two appellants were convicted of murder, and sentenced to death by the Witwatersrand Local Division of the Supreme Court. The Appellate Division postponed hearing of the appeals against the death sentence until the new, post-apartheid Constitutional Court decided the question of its constitutionality under the transitional 1993 Constitution. The eleven individual opinions of the Justices of the Constitutional Court were unanimous in holding that the death sentence was unconstitutional, but focused on different constitutional provisions and arguments. The excerpts below are from the opinion of Chief Justice Chaskalson.]

Relevant provisions of the Constitution

[7] The Constitution

... provides a historic bridge between the past of a deeply divided society characterised by strife, conﬂict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.

It is a transitional constitution but one which itself establishes a new order in South Africa; an order in which human rights and democracy are entrenched and in which the Constitution:

... shall be the supreme law of the Republic and any law or act inconsistent with its provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution, be of no force and effect to the extent of the inconsistency.

[8] Chapter Three of the Constitution sets out the fundamental rights to which every person is entitled under the Constitution and also contains provisions dealing with the way in which the Chapter is to be interpreted by the Courts. It does not deal speciﬁcally with the death penalty, but in section 11(2), it prohibits ‘cruel, inhuman or degrading treatment or punishment’ ...

...

[10] ... [S]ection 11(2) of the Constitution must not be construed in isolation, but in its context, which includes the history and background to the adoption of the Constitution, other provisions of the Constitution itself and, in particular, the provisions of Chapter Three of which it is part. It must also be construed in a way which secures for ‘individuals the full measure’ of its protection. Rights with which section 11(2) is associated in Chapter Three of the Constitution, and which are of particular importance to a decision on the constitutionality of the death penalty are included in section 9, ‘every person shall have the right to life’, section 10, ‘every person shall have the right to respect for and protection of his or her dignity’, and section 8, ‘every person shall have the right to equality before the law and to equal protection of the law’. Punishment must meet the requirements of sections 8, 9 and 10; and this is so, whether these sections are treated as giving meaning to Section 11(2) or as prescribing separate and independent standards with which all punishments must comply.

[11] Mr. Bizos, who represented the South African government at the hearing of this matter, informed us that the government accepts that the death penalty is a cruel, inhuman and degrading punishment and that it should be declared unconstitutional. The Attorney General of the Witwatersrand, whose ofﬁce is independent of the government, took a different view, and contended that the death penalty is a necessary and acceptable form of punishment and that it is not cruel, inhuman or degrading within the meaning of section 11(2) ... .

...

[27] The principal arguments advanced by counsel for the accused in support of their contention that the imposition of the death penalty for murder is a ‘cruel, inhuman or degrading punishment’, were that the death sentence is an affront to human dignity, is inconsistent with the unqualiﬁed right to life entrenched in the Constitution, cannot be corrected in case of error or enforced in a manner that is not arbitrary, and that it negates the essential content of the right to life and the other rights that ﬂow from it. The Attorney General argued that the death penalty is recognised as a legitimate form of punishment in many parts of the world, it is a deterrent to violent crime, it meets society’s need for adequate retribution for heinous offences, and it is regarded by South African society as an acceptable form of punishment ... .

International and foreign comparative law

[33] ... The movement away from the death penalty gained momentum during the second half of the present century with the growth of the abolitionist movement. In some countries it is now prohibited in all circumstances, in some it is prohibited save in times of war, and in most countries that have retained it as a penalty for crime, its use has been restricted to extreme cases. …

[34] ... The international and foreign authorities are of value because they analyze arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution, which states:

In interpreting the provisions of this Chapter a court of law shall promote the values which underlie an open and democratic society based on freedom and equality and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this Chapter, and may have regard to comparable foreign case law.

[35] ... In the context of section 35(1), public international law would include non-binding as well as binding law. They may both be used under the section as tools of interpretation. International agreements and customary international law accordingly provide a framework within which Chapter Three can be evaluated and understood, and for that purpose, decisions of tribunals dealing with comparable instruments, such as the United Nations Committee on Human Rights, the Inter-American Commission on Human Rights, the InterAmerican Court of Human Rights, the European Commission on Human Rights, and the European Court of Human Rights, and in appropriate cases, reports of specialized agencies such as the International Labour Organization may provide guidance as to the correct interpretation of particular provisions of Chapter Three.

[36] Capital punishment is not prohibited by public international law, and this is a factor that has to be taken into account in deciding whether it is cruel, inhuman or degrading punishment within the meaning of section

11(2). International human rights agreements differ, however, from our Constitution in that where the right to life is expressed in unqualiﬁed terms they either deal speciﬁcally with the death sentence, or authorize exceptions to be made to the right to life by law ... .

[40] ... From the beginning, the United States Constitution recognized capital punishment as lawful. The Fifth Amendment (adopted in 1791) refers in specific terms to capital punishment and impliedly recognizes its validity. The Fourteenth Amendment (adopted in 1868) obliges the states, not to ‘deprive any person of life, liberty, or property, without due process of law’ and it too impliedly recognizes the right of the states to make laws for such purposes. The argument that capital punishment is unconstitutional was based on the Eighth Amendment, which prohibits cruel and unusual punishment ... . [In a brief discussion of U.S. constitutional law, the Court noted that the federal constitutionality of capital punishment was affirmed, subject to conditions stated, in Gregg v. Georgia, 428 U.S. 153 (1976).]

[43] ... Mr Trengove contended on behalf of the accused that the imprecise language of section 277, and the unbounded discretion vested by it in the Courts, make its provisions unconstitutional.

[45] Under our court system questions of guilt and innocence, and the proper sentence to be imposed on those found guilty of crimes, are not decided by juries. In capital cases, where it is likely that the death sentence may be imposed, judges sit with two assessors who have an equal vote with the judge on the issue of guilt and on any mitigating or aggravating factors relevant to sentence; but sentencing is the prerogative of the judge alone. The Criminal Procedure Act allows a full right of appeal to persons sentenced to death … .

[46] Mitigating and aggravating factors must be identiﬁed by the Court, bearing in mind that the onus is on the State to prove beyond reasonable doubt the existence of aggravating factors, and to negative beyond reasonable doubt the presence of any mitigating factors relied on by the accused. Due regard must be paid to the personal circumstances and subjective factors which might have inﬂuenced the accused person’s conduct, and these factors must then be weighed up with the main objects of punishment, which have been held to be: deterrence, prevention, reformation, and retribution. In this process ‘[e]very relevant consideration should receive the most scrupulous care and reasoned attention’, and the death sentence should only be imposed in the most exceptional cases, where there is no reasonable prospect of reformation and the objects of punishment would not be properly achieved by any other sentence.

[47] There seems to me to be little difference between the guided discretion required for the death sentence in the United States, and the criteria laid down by the Appellate Division for the imposition of the death sentence

[48] The argument that the imposition of the death sentence under section 277 is arbitrary and capricious does not, however, end there. It also focuses on what is alleged to be the arbitrariness inherent in the application of section 277 in practice. Of the thousands of persons put on trial for murder, only a very small percentage are sentenced to death by a trial court, and of those, a large number escape the ultimate penalty on appeal. At every stage of the process there is an element of chance. The outcome may be dependent upon factors such as the way the case is investigated by the police, the way the case is presented by the prosecutor, how effectively the accused is defended, the personality and particular attitude to capital punishment of the trial judge and, if the matter goes on appeal, the particular judges who are selected to hear the case. Race and poverty are also alleged to be factors.

[49] Most accused facing a possible death sentence are unable to afford legal assistance, and are defended under the pro deo system. The defending counsel is more often than not young and inexperienced, frequently of a different race to his or her client, and if this is the case, usually has to consult through an interpreter. Pro deo counsel are paid only a nominal fee for the defence, and generally lack the ﬁnancial resources and the infrastructural support to undertake the necessary investigations and research, to employ expert witnesses to give advice, including advice on matters relevant to sentence, to assemble witnesses, to bargain with the prosecution, and generally to conduct an effective defence. Accused persons who have the money to do so, are able to retain experienced attorneys and counsel, who are paid to undertake the necessary investigations and research, and as a result they are less likely to be sentenced to death than persons similarly placed who are unable to pay for such services.

...

[54] The differences that exist between rich and poor, between good and bad prosecutions, between good and bad defence, between severe and lenient judges, between judges who favour capital punishment and those who do not, and the subjective attitudes that might be brought into play by factors such as race and class, may in similar ways affect any case that comes before the courts, and is almost certainly present to some degree in all court systems... . Imperfection inherent in criminal trials means that error cannot be excluded; it also means that persons similarly placed may not necessarily receive similar punishment. This needs to be acknowledged ... ...

[56] ... The acceptance by a majority of the United States Supreme Court of the proposition that capital punishment is not per se unconstitutional, but that in certain circumstances it may be arbitrary, and thus unconstitutional, has led to endless litigation. Considerable expense and interminable delays result from the exceptionally-high standard of procedural fairness set by the United States courts in attempting to avoid arbitrary decisions. The difficulties that have been experienced in following this path ... persuade me that we should not follow this route.

The right to dignity

[57] Although the United States Constitution does not contain a speciﬁc guarantee of human dignity, it has been accepted by the United States Supreme Court that the concept of human dignity is at the core of the prohibition of ‘cruel and unusual punishment’ by the Eighth and Fourteenth Amendments ... .

[58] Under our constitutional order the right to human dignity is speciﬁcally guaranteed. It can only be limited by legislation which passes the stringent test of being ‘necessary’ ... .

[59] In Germany, the Federal Constitutional Court has stressed this aspect of punishment.

Respect for human dignity especially requires the prohibition of cruel, inhuman, and degrading punishments. [The state] cannot turn the offender into an object of crime prevention to the detriment of his constitutionally protected right to social worth and respect.

[60] That capital punishment constitutes a serious impairment of human dignity has also been recognized by judgments of the Canadian Supreme Court. [In Kindler v Canada (1992) 6 CRR (2d) SC 4, involving murder, three] of the seven judges who heard the cases expressed the opinion that the death penalty was cruel and unusual:

It is the supreme indignity to the individual, the ultimate corporal punishment, the ﬁnal and complete lobotomy and the absolute and irrevocable castration. [It is] the ultimate desecration of human dignity.

[61] Three other judges [concluded that] the death penalty cannot, except in exceptional circumstances, be justiﬁed … .

The International Covenant on Civil and Political Right

[63] [The two defendants in Kindler v Canada,] Ng and Kindler took their cases to the [UN] Human Rights Committee, contending that Canada had breached its obligations under the International Covenant on Civil and Political Rights. Once again, there was a division of opinion within the tribunal. In [Ng v. Canada, Communication No. 469/1991, 5 Nov. 1993] it was said:

The Committee is aware that, by deﬁnition, every execution of a sentence of death may be considered to constitute cruel and inhuman treatment within the meaning of article 7 of the covenant.

[64] There was no dissent from that statement. But [Article 6 of] the International Covenant contains provisions permitting, with some qualiﬁcations, the imposition of capital punishment for the most serious crimes. In view

of these provisions, the majority of the Committee were of the opinion that the extradition of fugitives to a country which enforces the death sentence in accordance with the requirements of the International Covenant, should not be regarded as a breach of the obligations of the extraditing country ... .

[The opinion considered the decision by the European Court of Human Rights in Soering v. United Kingdom (1989) 11 EHRR 439, involving the question whether the United Kingdom would violate the provisions on inhuman and degrading treatment or punishment in Article 3 of the Convention, by extraditing a fugitive to the United States to face murder charges that were subject to capital punishment. In the circumstances, including the experience of ‘death row’ in the U.S. prisons and possible extradition of the fugitive by the United Kingdom for trial in another country that had abolished the death sentence, the European Court concluded that extradition to the United States would violate Article 3.

The opinion next examined a 1980 decision of the Indian Supreme Court holding that capital punishment did not violate the Indian Constitution. It distinguished the Indian decision partly by emphasizing the different wording of relevant provisions in the Constitutions of the two countries].

The right to life

[80] The unqualiﬁed right to life vested in every person by section 9 of our Constitution is another factor crucially relevant to the question whether the death sentence is cruel, inhuman or degrading punishment within the meaning of section 11(2) of our Constitution. In this respect our Constitution differs materially from the Constitutions of the United States and India. It also differs materially from the European Convention and the International Covenant. Yet in the cases decided under these constitutions and treaties there were judges who dissented and held that notwithstanding the speciﬁc language of the constitution or instrument concerned, capital punishment should not be permitted.

[83] An individual’s right to life has been described as ‘[t]he most fundamental of all human rights’, and was dealt with in that way in the judgments of the Hungarian Constitutional Court declaring capital punishment to be unconstitutional ... . ...

Public opinion

[87] ... It was disputed whether public opinion, properly informed of the different considerations, would in fact favour the death penalty. I am, however, prepared to assume that it does and that the majority of South Africans agree that the death sentence should be imposed in extreme cases of murder. The question before us, however, is not what the majority of South Africans believe a proper sentence for murder should be. It is whether the Constitution allows the sentence.

[88] Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution... . The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalized people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected.

... Cruel, inhuman and degrading punishment

[94] Proportionality is an ingredient to be taken into account in deciding whether a penalty is cruel, inhuman or degrading. No Court would today uphold the constitutionality of a statute that makes the death sentence a

competent sentence for the cutting down of trees or the killing of deer, which were capital offences in England in the 18th Century. But murder is not to be equated with such ‘offences’. The wilful taking of an innocent life calls for a severe penalty, and there are many countries which still retain the death penalty as a sentencing option for such cases. Disparity between the crime and the penalty is not the only ingredient of proportionality; factors such as the enormity and irredeemable character of the death sentence in circumstances where neither error nor arbitrariness can be excluded, the expense and difficulty of addressing the disparities which exist in practice between accused persons facing similar charges, and which are due to factors such as race, poverty, and ignorance, and the other subjective factors which have been mentioned, are also factors that can and should be taken into account in dealing with this issue. It may possibly be that none alone would be sufficient under our Constitution to justify a finding that the death sentence is cruel, inhuman or degrading. But these factors are not to be evaluated in isolation. They must be taken together, and in order to decide whether the threshold set by section 11(2) has been crossed they must be evaluated with other relevant factors, including the two fundamental rights on which the accused rely, the right to dignity and the right to life.

[95] The carrying out of the death sentence destroys life, which is protected without reservation under section 9 of our Constitution, it annihilates human dignity which is protected under section 10, elements of arbitrariness are present in its enforcement and it is irremediable. Taking these factors into account, as well as the assumption that I have made in regard to public opinion in South Africa, and giving the words of section 11(2) the broader meaning to which they are entitled at this stage of the enquiry, rather than a narrow meaning, I am satisﬁed that in the context of our Constitution the death penalty is indeed a cruel, inhuman and degrading punishment.

Section 33 and limitation of rights

[98] Section 33(1) of the Constitution provides, in part, that: The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation (a) shall be permissible only to the extent that it is (i) reasonable; and (ii) justiﬁable in an open and democratic society based on freedom and equality; and (b) shall not negate the essential content of the right in question.

[99] Section 33(1)(b) goes on to provide that the limitation of certain rights, including the rights referred to in section 10 and section 11 ‘shall, in addition to being reasonable as required in paragraph (a)(I), also be necessary’.

[100] Our Constitution deals with the limitation of rights through a general limitations clause... . [T]his calls for a ‘two-stage’ approach, in which a broad rather than a narrow interpretation is given to the fundamental rights enshrined in Chapter Three, and limitations have to be justiﬁed through the application of section 33. In this it differs from the Constitution of the United States, which does not contain a limitation clause, as a result of which courts in that country have been obliged to ﬁnd limits to constitutional rights through a narrow interpretation of the rights themselves. Although the ‘two-stage’ approach may often produce the same result as the ‘one-stage’ approach, this will not always be the case.

[102] Under our Constitution, ... [the question] is whether the inﬂiction of death as a punishment for murder has been shown to be both reasonable and necessary, and to be consistent with the other requirements of section 33 ... .

[106] Although there is a rational connection between capital punishment and the purpose for which it is prescribed, the elements of arbitrariness, unfairness and irrationality in the imposition of the penalty, are factors that would have to be taken into account in the application of the ﬁrst component of this test. As far as the second component is concerned, the fact that a severe punishment in the form of life imprisonment is available as an alternative sentence, would be relevant to the question whether the death sentence impairs the right as little as possible.

...

Deterrence

[116] The Attorney General attached considerable weight to the need for a deterrent to violent crime. He argued that the countries which had abolished the death penalty were on the whole developed and peaceful countries in which other penalties might be sufﬁcient deterrents. We had not reached that stage of development, he said. If in years to come we did so, we could do away with the death penalty. Parliament could decide when that time has come ... .

[117] ... Without law, individuals in society have no rights. The level of violent crime in our country has reached alarming proportions. It poses a threat to the transition to democracy, and the creation of development opportunities for all, which are primary goals of the Constitution ... .

...

[119] The cause of the high incidence of violent crime cannot simply be attributed to the failure to carry out the death sentences imposed by the courts ... .

[120] Homelessness, unemployment, poverty and the frustration consequent upon such conditions are other causes of the crime wave ... .

[121] We would be deluding ourselves if we were to believe that the execution of the few persons sentenced to death during this period, and of a comparatively few other people each year from now onwards will provide the solution to the unacceptably high rate of crime ... .

[122] The greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is presently lacking in our criminal justice system; and it is at this level and through addressing the causes of crime that the State must seek to combat lawlessness.

Retribution

[129] Retribution is one of the objects of punishment, but it carries less weight than deterrence. The righteous anger of family and friends of the murder victim, reinforced by the public abhorrence of vile crimes, is easily translated into a call for vengeance. But capital punishment is not the only way that society has of expressing its moral outrage at the crime that has been committed. We have long outgrown the literal application of the biblical injunction of ‘an eye for an eye, and a tooth for a tooth’. Punishment must to some extent be commensurate with the offence, but there is no requirement that it be equivalent or identical to it... . A very long prison sentence is also a way of expressing outrage and visiting retribution upon the criminal.

Conclusion

[144] The rights to life and dignity are the most important of all human rights, and the source of all other personal rights in Chapter Three. … And this must be demonstrated by the State in everything that it does, including the way it punishes criminals ...

[146] ... Taking [all the described] factors into account, as well as the elements of arbitrariness and the possibility of error in enforcing the death penalty, the clear and convincing case that is required to justify the death sentence as a penalty for murder, has not been made out. The requirements of section 33(1) have accordingly not been satisﬁed, and it follows that the provisions of section 277(1)(a) of the Criminal Procedure Act, 1977 must be held to be inconsistent with section 11(2) of the Constitution

FRANCIS KARIOKO MURUATETU V. REPUBLIC SUPREME COURT OF KENYA [2017] EKLR

[The two petitioners were convicted of murder and sentenced to death pursuant to Section 204 of the Penal Code which states that ‘any person convicted of murder shall be sentenced to death’. Before the Supreme Court they challenged the constitutionality of the mandatory death penalty that removes all judicial discretion in sentencing.2 In 2023, 158 people were reportedly on death row, but no executions had occurred since 1987.]

E. ISSUES FOR DETERMINATION

[25] … [T]he following issues [arise] for determination:

a) Whether the mandatory nature of the death penalty provided for in the Penal Code under section 204 is unconstitutional …

F. ANALYSIS

[The Court observed that it would not consider the constitutionality of the death sentence, since the issue did not arise in this appeal.]

i.Violationoftherighttofairtrial

[27] … [T]he constitutionality of the mandatory nature of the death penalty has engaged many court in various jurisdiction globally. It is the major issue in this appeal. It has also engaged the High Court and the Court of Appeal in many cases in this country resulting in divergent opinions. It started with the Mutiso case … in which the Court of Appeal opined that as it denied an accused person right to fair trial [and was thus] arbitrary and unconstitutional. … [The] Court observed that:

“… section 204 of the Penal Code which provides for a mandatory death sentence is antithetical to the Constitutional provisions on protection against inhuman or degrading punishment or treatment and fair trial. … We declare Section 204 … to the extent it provides that the death penalty is the only sentence in respect of the crime of murder is inconsistent with the letter and spirit of the Constitution …”.

[28] That remained the position until the Mwaura case in which the Court of Appeal changed it holding that by the use of the word ‘shall’ Section 204 of the Penal Code was couched in mandatory terms leaving the court with no discretion but to impose the death penalty. …

[Various lower courts subsequently followed this approach.]

[30] … Some Kenyan courts have even observed that mitigating factors in such cases were at best, superfluous in terms of the sentence provided. It therefore serves no purpose for the trial judges to hear mitigating factors from convicts in such cases.

[31] On the international arena, however, most jurisdictions have declared not only the mandatory but also the discretionary death penalty unconstitutional. In Roberts v. Louisiana, 431 U.S. 633 (1977) a Louisiana statute provided for the mandatory imposition of the death sentence. Upon challenge, the US Supreme Court declared it unconstitutional since the statute allowed for no consideration of particularized mitigating factors in deciding whether the death sentence should be imposed. In [Reyes v. the Queen (2002)], the Privy Council was of the view that a statutory provision that denied the offender an opportunity to persuade the Court why the death sentence should not be passed, denied such an offender his basic humanity. And in Spence v The Queen; Hughes v the Queen (Spence & Hughes) (unreported, 2 April 2001) where the constitutionality of the mandatory death sentence for the offence of murder was challenged, the Privy Council held that such sentence did not take into account that

2 See L. Chenwi, ‘The Downfall of the Mandatory Death Penalty in Kenya’, 63 J. Af. L. (2019) 25.

persons convicted of murder could have committed the crime with varying degrees of gravity and culpability. In the words of Byron CJ:

“In order to be exercised in a rational and non-arbitrary manner, the sentencing discretion should be guided by legislative or judicially-prescribed principles and standards, and should be subject to effective judicial review, all with a view to ensuring that the death penalty is imposed in only the most exceptional and appropriate circumstances. There should be a requirement for individualized sentencing in implementing the death penalty.”

[32] Two Indian decisions also merit mention. In Mithu v State of Punjab, … 1980, the Indian Supreme Court held that “a law that disallowed mitigation and denied a judicial officer discretion in sentencing was harsh, unfair and just” while in Bachan Singh v The State of Punjab … [1980], it was held that “It is only if the offense is of an exceptionally depraved and heinous character, and constitutes on account of its design and manner of its execution a source of grave danger to the society at large, the Court may impose the death sentence.”

[33] The UN …Human Rights Committee has also had occasion to consider the mandatory death penalty. In case of Eversley Thomson v St. Vincent, Communication No. 806/ 1998U.N. Doc. CCPR/70/806/1998 (2000), it stated that such sentence constituted a violation of Article 26 of the Covenant, since the mandatory nature of the death sentence did not allow the judge to impose a lesser sentence taking into account any mitigating circumstances and denied the offender the most fundamental of right, the right to life, without considering whether this exceptional form of punishment was appropriate in the circumstances of his or her case.

Interrogating Section 204 of the Penal Code

[35] To determine the [constitutionality of Section 204 of the Penal Code], it is imperative to consider certain constitutional provisions in relation to the above section. [The court then made reference to: Article 19 (3) (a) which provides that the rights contained in the Bill of Rights “belong to each and every individual and are not granted by the State;” Article 20 stating that the Bill of Rights “applies to all law and binds all state organs and all persons”; Article 28 recognizing every person’s inherent dignity; Article 48 mandating “the State to ensure justice for all persons”; Article 50 (1) providing that “Every person has a right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or if appropriate another independent and impartial tribunal or body”; and Article 50 (2) according every accused person the right to a fair trial, including the right “if convicted, to appeal to, or apply for review by, a higher court as prescribed by Law.”

[38] Kenya is a signatory to the International Covenant on Civil and Political Rights (ICCPR) since May 1972.

[39] The [UN] Commission on Human Rights has recommended the abolition of the death sentence as a mandatory sentence in … Resolution 2005/59 [urging] all States that still maintain the death penalty:

‘…(d) Not to impose the death penalty for any but the most serious crimes …;

…

… (f) To ensure also that the notion of “most serious crimes” does not go beyond intentional crimes with lethal or extremely grave consequences and that the death penalty is not imposed for non-violent acts such as financial crimes, religious practice or expression of conscience and sexual relations between consenting adults nor as a mandatory sentence.’

[40] These … provisions … bring to the fore a number of principles. Firstly, the rights and fundamental freedoms belong to each individual. Secondly, the bill of rights applies to all law and binds all persons. Thirdly, all persons have inherent dignity which must be respected and protected. Fourthly, the State must ensure access to justice to all. Fifthly, every person is entitled to a fair hearing and lastly, the right to a fair trial is non-derogable. For Section 204 of the Penal Code to stand, it must be in accord with these provisions.

[41] It is evident that the trial process does not stop at convicting the accused. … [T]he principle of fair trial must be accorded to the sentencing stage too.

[42] Pursuant to [the] Laws of Kenya, mitigation is a part of the trial process. … Section 329 of the Criminal Procedure Code provides:

The court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed.

[43] Therefore, … the Court ought to take into account the evidence, the nature of the offence and the circumstances of the case in order to arrive at an appropriate sentence. It is not lost on us that these provisions are couched in permissive terms. However, the Court of Appeal has consistently reiterated on the need for noting down mitigating factors. Not only because they might affect the sentence but also for futuristic endeavors such as when the appeal is placed before another body for clemency. …

[45] [W]hat Section 204 the Penal Code is essentially saying to a convict is that he or she cannot be heard on why, in all the circumstances of his or her case, the death sentence should not be imposed on him or her … . [W]e cannot decipher the possible rationale for this provision. We think that a person facing the death sentence is most deserving to be heard in mitigation because of the finality of the sentence.

[46] We are of the view that mitigation is an important congruent element of fair trial. The fact that mitigation is not expressly mentioned as a right in the Constitution does not deprive it of its necessity and essence in the fair trial process. In any case, the rights pertaining to fair trial of an accused pursuant to Article 50(2) of the Constitution are not exhaustive.

[47] Indeed the right to fair trial is not just a fundamental right. It is one of the inalienable rights enshrined in Article 10 of the Universal Declaration of Human Rights, and in … Article 25(c) of the Constitution … . … The right to fair trial is one of the cornerstones of a just and democratic society, without which the Rule of Law and public faith in the justice system would inevitably collapse.

[48] Section 204 of the Penal Code deprives the Court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial … .

…

[51] The dignity of the person is ignored if the death sentence, which is final and irrevocable is imposed without the individual having any chance to mitigate. We say so because we cannot shut our eyes to the distinct possibility of the differing culpability of different murderers. … To our minds a formal equal penalty for unequally wicked crimes and criminals is not in keeping with the tenets of fair trial.

[54] A fair trial has many facets, and includes mitigation and, the right to appeal or apply for review by a higher Court as prescribed by law. …

[55] [Michael Edwards] petitioned the Inter-American Commission on Human Rights. He challenged the mandatory death penalty on the basis, inter alia, that his rights to equality before the law and a fair trial enshrined in the American Declaration of the Rights and Duties of Man had been violated. The Commission held at paragraph 137:

“ ... Moreover, by reason of its compulsory and automatic application, a mandatory death sentence cannot be the subject of review by a higher court. Once a mandatory sentence is imposed, all that remains for a higher court to review is whether the defendant was found guilty of the crime for which the sentence is mandated.”

[56] [Based on the decision of the Inter-American Commission on Human Rights in Edwards v The Bahamas (Report No. 48/01, 4th April 2001) [we consider] that Section 204 violates Article 50 (2) (q) of the Constitution

as convicts under it are denied the right to have their sentence reviewed by a higher Court – their appeal is in essence limited to conviction only. …

[58] [A]ny law or procedure which when executed culminates in termination of life, ought to be just, fair and reasonable. As a result, due process is made possible by a procedure which allows the Court to assess the appropriateness of the death penalty in relation to the circumstances of the offender and the offence. We are of the view that the mandatory nature of this penalty runs counter to constitutional guarantees enshrining respect for the rule of law.

[65] A generous and purposive interpretation is to be given to constitutional provisions that protect human rights. …

…

[67] It is to be noted that the mandatory nature of the death sentence provided for under Section 204 of the Penal Code long predates any international agreements for the protection of Human Rights. … [I]t is indeed a colonial relic that has no place in Kenya today. …

[69] Consequently, we find that Section 204 of the Penal Code is inconsistent with the Constitution and invalid … For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment.

QUESTION

What are the advantages and disadvantages of basing opposition to the death penalty on (i) the rule of law, (ii) the prohibition of cruel, inhuman, or degrading punishment, or (iii) human dignity?

2. The Death Penalty in India

The case of India illustrates a different trajectory from that in South Africa and Kenya. The death penalty dates back to colonial times and, despite many challenges to its legality, it continues to be applied for a variety of crimes. Juveniles and those suffering serious mental illness or insanity are not subject to execution. In practice, relatively few convicted prisoners have actually been executed. For example, in 2016, India imposed 136 new death sentences, had 397 prisoners on death row, and carried out no executions. In the same year, the Supreme Court confirmed the imposition of the death penalty in none of the seven cases it considered. Out of 1,810 death sentences imposed between 2000 and 2014, only four people had been executed as of 2016, and 95 per cent of the sentences had been overturned or commuted by higher courts. A third of death sentences given by trial courts resulted in acquittals at a later stage.3

Economic vulnerability and a lack of education are hallmarks of those on death row. The National Law University’s Death Penalty in India Report found that, of 385 persons on death row nationwide in 2016, almost two-thirds belonged to the ‘backward classes,’ religious minorities, Dalits and Adivasis. The same number were classified as economically vulnerable sections and over 80 per cent of them had not completed school. A large majority of them had been tortured in custody; less than half could understand legal proceedings; and nearly 70 per cent of them said they hardly had any interaction with their lawyers when their cases were in the higher courts. Only 8 per cent had a prior criminal conviction and 25 per cent were juveniles or very young at the time of the offence. Some 77 per cent said that they had never met their lawyers out of court, and that their interactions in court were ‘perfunctory’. Legal aid lawyers were said to have tried to extort money from the families of death-row prisoners, and threatened not to turn up for hearings unless they were paid.

In 2021, the number of prisoners on death row increased by 21 per cent from 2020. The Supreme Court, however, did not confirm any sentences and applied demanding scrutiny in assessing lower court decisions.

3 National Law University, Death Penalty in India: Annual Statistics Report 2016 (March 2017).

Sexual offences accounted for 54 per cent of all death penalty sentences.4 In 2015, the Law Commission of India had proposed the abolition of the death penalty in a phased manner, beginning by limiting it to terrorismrelated offences.

The Nirbhaya Gang-rape Case

At 9.30 pm on December 16, 2012, a 23-year-old physiotherapy student named Jyoti Singh (originally given the pseudonym of ‘Nirbhaya’ to protect her identity), and her male companion, were waiting at a bus stop, after having seen a movie. An off-duty charter bus stopped and they boarded. When the man objected that a different route had been taken and the lights in the bus turned off, a fight broke out. The man was severely beaten, the woman was brutally gang-raped by the six occupants of the bus, including being sexually assaulted with an iron rod, their possessions were stolen, they were thrown out of the bus half naked and the bus attempted to run them over. They were found at 11 p.m. by a passerby and taken to hospital. The victim remained in a critical condition until her death on December 29, in Singapore where she had been taken for further treatment.

In response to the incident, massive protests erupted throughout India, and police used water cannons, teargas, and baton charges to control crowds. Metro stations and roads were closed and a limited curfew was imposed. The leader of the parliamentary opposition called for the rapists to be hanged and the Chief Minister of Delhi referred to the city as India’s ‘rape capital’.

On December 23, 2012, the Government appointed a committee headed by former Chief Justice J. S. Verma, to recommend amendments to the criminal law to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women. It reported one month later, after receiving over 80,000 submissions from civil society. It made wide-ranging recommendations for reform, but it recommended a maximum penalty of life imprisonment for rape, based on considerable evidence that the death penalty did not deter serious crimes.

The committee proposed including new offences relating to stalking, voyeurism and intentional touching, higher penalties for rape and a definition of gang rape in the law. It advocated the punishment of marital rape, as well as gender sensitization measures and police and electoral reforms.5

Of the original six defendants, one was tried and sentenced as a juvenile. One committed suicide while awaiting trial, and the remaining four were convicted and sentenced to death in September 2013. Following the rejection of an appeal to the Supreme Court, the four convicted men were hanged on 20 March 2020.

MUKESH & ANR. V. STATE FOR NCT OF DELHI & ORS. SUPREME COURT OF INDIA (2017) 6 SCC 1

DIPAK MISRA, J. [FOR HIMSELF AND ASHOK BHUSHAN, J.]

331. … [In Bachan Singh v. State of Punjab (1980) 2 SCC 684], the Court held thus:

“(a) The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. …

(b) While considering the question of sentence … the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence.”

332. [The Court took note of a list of aggravating circumstances proposed by counsel but concluded that] we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other.”

4 Project 39A, Death Penalty in India, Annual Statistics Report 2021 (2022) 7.

5 ‘Nirbhaya gangrape case 2012: A look at what all has happened over the years,’ Indian Express, May 5, 2017.

333. Thereafter, the Court referred to the suggestions pertaining to mitigating circumstances:

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. …

(5) … [T]he accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective ……

334. In the said case, the Court has also held thus:

“… A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

335. In [Machhi Singh and Ors. v. State of Punjab (1983) 3 SCC 470], a three-Judge Bench has explained the concept of ‘rarest of the rare cases’ by observing thus:

“The reasons why the community as a whole does not endorse the humanistic approach reflected in ‘death sentence-in-no-case’ doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of ‘reverence for life’ principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realised that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection.”

336. Thereafter, the Court [added that the death penalty may be imposed] ‘in the rarest of rare cases’ when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.”

337. [In Macchi Singh], stress was laid on certain aspects, namely, the manner of commission of the murder, the motive for commission of the murder, anti-social or socially abhorrent nature of the crime, magnitude of the crime and personality of the victim of murder.

338. [The Court concluded that] …

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.”

356. It is necessary to state here that in the instant case, the brutal, barbaric and diabolic nature of the crime is evincible from the acts committed by the accused persons, … . [T]he gross sadistic and beastly instinctual pleasures came to the forefront when they, after ravishing her, thought it to be just a matter of routine to throw her along with her friend out of the bus and crush them. The casual manner with which she was treated and the devilish manner in which they played with her identity and dignity is humanly inconceivable. It sounds like a story from a different world where humanity has been treated with irreverence. The appetite for sex, the hunger for violence, the position of the empowered and the attitude of perversity, to say the least, are bound to shock the collective conscience which knows not what to do. It is manifest that the wanton lust, the servility to absolutely unchained carnal desire and slavery to the loathsome beastiality of passion ruled the mindset of the

appellants to commit a crime which can summon with immediacy “tsunami” of shock in the mind of the collective and destroy the civilised marrows of the milieu in entirety.

357. When we cautiously, consciously and anxiously weigh the aggravating circumstances and the mitigating factors, we are compelled to arrive at the singular conclusion that the aggravating circumstances outweigh the mitigating circumstances …. Therefore, we conclude and hold that the High Court has correctly confirmed the death penalty … .

R. BANUMATHI, J. [CONCURRING]

[1.] … I entirely agree with the reasoning [and conclusions above]. However, in view of the … role of Judiciary in addressing crime against women, I would prefer to give my additional reasoning for concurrence.

146. … The present case clearly comes within the category of ‘rarest of rare case’ … . … If the dreadfulness displayed by the accused in committing the gang-rape, unnatural sex, insertion of iron rod in the private parts of the victim does not fall in the ‘rarest of rare category’, then one may wonder what else would fall in that category. …

147. The incident of gang-rape … causes ripples in the conscience of society and serious doubts are raised as to whether we really live in a civilized society and whether both men and women feel the same sense of liberty and freedom … . [A]n unknown sense of insecurity and helplessness grabs the entire society, women in particular, and the only succour people look for, is the State to take command of the situation and remedy it effectively.

148. The statistics of National Crime Records Bureau … show that despite the progress made by women in education and in various fields and changes brought in ideas of women’s rights, respect for women is on the decline and crimes against women are on the increase. … [I]t becomes important to ensure that gender justice does not remain only on paper.

149. We have a responsibility to set good values and guidance for posterity. … Crime against women not only affects women’s self esteem and dignity but also degrades the pace of societal development. I hope that this gruesome incident … will be an eye-opener for a mass movement “to end violence against women” and “respect for women and her dignity” and sensitizing public at large on gender justice. … The battle for gender justice can be won only with strict implementation of legislative provisions, sensitization of public, taking other proactive steps at all levels for combating violence against women and ensuring widespread attitudinal changes and comprehensive change in the existing mind set. …

RESPONSES TO THE NIRBHAYA CASE6

In an article titled ‘Justice?: Why Death Penalty is a Weak Response to Structural Violence’ posted on the Youth Ki Awaaz website on 25 March 20207, a contributor with the username pinjratod highlighted the gendered and other structural assumptions that underpin reactions to sexual violence and demands for the death penalty to be imposed:

… Though this execution is using the trope of women’s safety and rights, we need to understand that the popular outrage against rape in this case and generally in society is often rooted not so much in respecting the bodily integrity of women but the notions of honour and chastity of women. This chastity is seen to be ‘defiled’ by the act of rape. Rape is, therefore, exceptionalised and produces greater outrage than other acts of violence on women, which may be equally brutal and life-threatening.

6 See generally B. Rajan, D. Kundu, and S. Sarkar, ‘Rape, Popular Culture, and Nirbhaya: A Study of India’s Daughter and Delhi Crime’, J. Commun. Inq (2022)

7 Available at https://www.youthkiawaaz.com/2020/03/justice-is-not-retribution-oppose-the-death-penalty-in-the-name-of-womens-security/

Therefore, during the public outrage in 2012, feminist voices asking for understanding and dealing with the structural nature of sexual violence on women were drowned by the clamour of demands for the death penalty, castration, etc. To satisfy this sense of public outrage or ‘collective conscience’, a death sentence was pronounced for the convicts, which was justified by the kind brutality meted out to the victim.

The demand for the death penalty for the rape convicts operates on the principle of externalising the problem of sexual violence in our everyday structures and lives and locates it on a handful of convicts identified in the most publicised and brutal rape cases. As if, on exterminating these convicts can rid us of the problem of rape altogether.

Yet rape continues unabated and only becomes more brutal. Are such exemplary punishments not just a Band-Aid for a larger structural problem done to ease public rage over an issue or to reaffirm public faith in the State that refuses to take any effective structural measures for ensuring safety and well being of women?

… [T]he crime which is considered worthy of being treated as ‘rarest of the rare’ is constituted more by social and political exigencies than by any real response to pain and brutality inflicted.

Demands for death penalty are seldom made if the perpetrators are from socially and politically powerful backgrounds and more often enjoy state impunity … . …

The Muslim lorry driver, the security guard or the migrant worker becomes the “other”, the villain from whom the women need to be protected completely glossing over the statistical evidence that in most cases of sexual violence the perpetrators are known to the victims.

An earlier editorial addressing the acquittal of six men, sentenced to death in a separate case, opined on the legal errors and faulty evidence that are endemic in court cases awarding the death penalty, and on the extent to which capital sentences fall disproportionately on the dispossessed:

ECONOMIC AND POLITICAL WEEKLY, DEADLY ERRORS IN JUDGMENT VOL. 54, NO. 11 (16 MARCH 2019)

… [T]he Supreme Court has set aside its own judgment that had confirmed the conviction of and death penalty for the accused in Ankush Maruthi Shinde v State of Maharashtra

The litany of deadly horrors in this case is long. A poverty-stricken family is set upon by unknown assailants who rob, assault, and murder them over the course of one horrific night. The police … concoct an entirely false case against six innocent men, only because they belong to a “criminal tribe.” No actual evidence is unearthed to link them to the scene of the crime or their remote involvement in the matter. “Eyewitnesses” repeatedly change their statements as the circumstance warrants. Yet, shockingly, the trial court, the high court, and the Supreme Court confirm their convictions on the basis of this thin and unreliable “evidence.”

The men are on death row for more than a decade, living solitary, tortured, and pitiable lives in jails. … When three of them find their death sentences commuted by the Bombay High Court, the Supreme Court overturns such commutation and awards the death penalty without hearing them at all. The Supreme Court then dismisses their review petitions without an open court hearing.

It was only when the curative petition in the Supreme Court was placed before a totally different bench and the “error” was discovered that the wheels of justice finally began to turn. … In the end, the Supreme Court has acquitted all the accused, directed the state of Maharashtra to pay compensation to them, and attempted to hold the police accountable for this callous lapse. What it has not done is offer any sort of mea culpa for its own failings in this case.

While the Supreme Court is fond of justifying the death penalty on the grounds that it must be applied only in the “rarest of rare cases” and after carefully weighing all mitigating and aggravating factors in a case, in reality it has been happy to discard the law at the drop of a hat. The judgment awarding the death penalty to the convicts in the “Nirbhaya” case, for example, is long on impassioned rhetoric and short on the law when it comes to awarding the death penalty. …

… [I]t is safe to assume that a large number of such death penalties have been awarded by the courts in cases with grievously faulty trials.

And, yet, this hardly seems to inform bloodthirsty calls in the public for increasing the imposition of death penalty by the courts. Politicians of all stripes are happy to accede to these demands, which are ignorant or unconcerned about the vagaries of a broken criminal justice system that only ends up creating more victims than punishing any hardened criminals. …

With the criminal justice system being what it is, it is hard to see the death penalty as anything but an institutionalised form of murder, one that unerringly chooses its victims from the oppressed and disenfranchised sections of society. …

3. Drugs and the Death Penalty

In 2018, the ICCPR Committee adopted General Comment No. 36 on the right to life. Article 6 of the ICCPR provides, inter alia, that: ‘1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.’; ‘2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes …’; and ‘5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.’ The relevant part of the Committee’s analysis follows:

33. … Given the anomalous nature of regulating the application of the death penalty in an instrument enshrining the right to life, the contents of paragraph 2 have to be narrowly construed.

34. … States parties that have abolished the death penalty cannot deport, extradite or otherwise transfer persons to a country in which they are facing criminal charges that carry the death penalty, unless credible and effective assurances against the imposition of the death penalty have been obtained. …

35. The term “the most serious crimes” must be read restrictively and appertain only to crimes of extreme gravity involving intentional killing. Crimes not resulting directly and intentionally in death, such as attempted murder, corruption and other economic and political crimes, armed robbery, piracy, abduction, drug and sexual offences, although serious in nature, can never serve as the basis, within the framework of article 6, for the imposition of the death penalty. In the same vein, a limited degree of involvement or of complicity in the commission of even the most serious crimes, such as providing the physical means for the commission of murder, cannot justify the imposition of the death penalty. …

36. Under no circumstances can the death penalty ever be applied as a sanction against conduct the very criminalization of which violates the Covenant,

including adultery, homosexuality, apostasy, establishing political opposition groups or offending a head of State. …

In 2022, the UN reported that at least 35 states and territories retained the death penalty for drug-related offences (UN Doc. A/77/274 (2022)) and Amnesty International noted that 325 people were executed for drug-related offences in 2022, or 37% of known global executions. There were 255 in Iran, 57 in Saudi Arabia and 11 in Singapore.

Eight out of eleven Southeast Asian countries retain the death penalty for drug offences, although the majority do not generally carry it out. The most common arguments in favour of it are that it succeeds as a deterrent and that public opinion demands it. British entrepreneur, Richard Branson, described Singapore’s April 2022 execution of a Malaysian man who had attempted to smuggle the equivalent of three tablespoons of heroin, as ‘a serious stain on Singapore’s reputation’. Critics alleged, and the government denied, that the man had learning difficulties. A story in The Guardian (Rebecca Ratcliffe, ‘Richard Branson refuses Singapore invitation to debate death penalty’, 31 October 2022) reported that Branson was subsequently invited by the Ministry of Home Affairs to debate the Minister live on television.

The Ministry was quoted as saying that, while Branson’s views may be widely held in the UK, ‘we do not accept that Mr. Branson or others in the west are entitled to impose their values on other societies. Nor do we believe that a country that prosecuted two wars in China in the 19th century to force the Chinese to accept opium imports has any moral right to lecture Asians on drugs’. It added that its ‘priority is to protect Singapore and Singaporeans from the scourge of drugs’.

Branson declined the offer, saying that: ‘[a] television debate – limited in time and scope, always at risk of prioritising personalities over issues – cannot do the complexity of the death penalty any service. It reduces nuanced discourse to soundbites, turns serious debate into spectacle.’ Instead, he called on the government to engage Singaporean activists and human rights lawyers in such a debate, rather than ignoring or harassing them. The story noted that following the execution, ‘more than 400 people turned out for a rare protest in April at Speakers’ Corner at Hong Lim Park, the only place where demonstrations are permitted in Singapore, to call for executions to be halted.’ It added that ‘[a]t least 10 death row inmates have since been executed. Death penalty cases are rarely reported in any detail in Singapore’s tightly controlled media.’

A survey of public opinion in Singapore, reported in Wing-Cheong Chan et al., ‘How Strong Is Public Support for the Death Penalty in Singapore?’, 13 Asian Criminology (2018) 91, at 101 concluded that:

… Singaporeans apparently favoured the death penalty despite admitting that they knew very little about it, [were] not interested in it and could not give an accurate estimate of the number of persons executed. …

… There was a much lower support for the death penalty when respondents were faced with scenarios of cases all of which would have merited the mandatory sentence under the current Singapore law than the proportion who said they favoured it in the abstract. This was particularly so for drug trafficking and firearm offences. This finding is consistent with surveys in other places which also showed that support for the death penalty dropped when respondents were given alternative sentencing options …

Another analysis, focused on Vietnam, concluded that although the government had made a number of incremental changes to move closer to the goal of abolition of the death penalty for drug offences, abolition remained far away. Noting that the number of people executed each year remains a state secret, the authors called on Vietnam to ‘make its statistics and data on the death penalty publicly available and accessible’ and to facilitate both national and international discourse. The latter would ‘give the impression of a responsible nation trying to bring its legislation in line with universally recognised standards.’ They also called for ‘a nationwide survey on drug control measures in relation to three capital drug crimes’ since existing surveys are outdated and do not focus on the death penalty (Tien Duc Nguyen and Thu Thuy Thi Tran, ‘The Limits of Vietnam’s Incrementalism towards the Abolition of Capital Punishment for Drug Offenses’, Asian J. Comp. L (2022) 1).

QUESTIONS

1. What weight should courts accord to public opinion in relation to the imposition of the death penalty? Compare the approaches in Makwanyane and Mukesh. How important is transparency and informed public debate?

2. Does the concept of the ‘rarest of the rare’ provide a meaningful safeguard against the arbitrary imposition of the death penalty?

3. Is the Human Rights Committee’s interpretation of ‘the most serious crimes’ too strict? Should weight be given to different value systems in that context?

4. The Death Penalty in the United States

In 2021, 18 people were sentenced to death. Five states (Alabama, Mississippi, Missouri, Oklahoma and Texas) and the federal government carried out 11 executions in 2021, the fewest since 1988. The federal executions included persons with severe mental illness, intellectual disability, and unexamined evidence of innocence. At the state level, all but one of those executed had significant impairments such as serious mental illness; brain injury or damage; an IQ in the intellectually disabled range; or chronic serious childhood trauma, neglect and abuse.

The majority of those sentenced to death in 2021 (10 of 18, 55.6 per cent) were Black or Latinx; 56 per cent of those executed (6 of 11) were Black. 83.3 per cent of the death sentences and half of the executions involving Black men were for interracial offenses, as were three of the four new death sentences imposed on Latino defendants. Since 1972, 186 wrongfully-convicted people have been exonerated from death row, amounting to one exoneration for every 8.3 executions.8

The following opinion of the U.S. Supreme Court makes clear how dramatically the United States differs from most other states.

ROPER V. SIMMONS

SUPREME COURT OF THE UNITED STATES, 543 U.S. 551 (2005)

OPINION OF JUSTICE KENNEDY FOR THE COURT:

This case requires us to address ... whether it is permissible under the Eighth and Fourteenth Amendments to the Constitution of the United States to execute a juvenile offender who was older than 15 but younger than 18 when he committed a capital crime. In Stanford v. Kentucky, 492 U.S. 361 (1989), a divided Court rejected the proposition that the Constitution bars capital punishment for juvenile offenders in this age group. We reconsider the question.

[Simmons committed murder at age 17 when a junior (the penultimate year) in secondary school. He was sentenced to death when he was 18. The murder was callous and premeditated. At trial, the judge instructed the jury that it could consider Simmons’s age as a mitigating factor in sentencing. The jury recommended the death penalty, which the trial judge imposed. The Missouri Supreme Court afﬁrmed.]

After these proceedings in Simmons’ case had run their course, this Court held that the Eighth and Fourteenth Amendments prohibit the execution of a mentally retarded person. Atkins v. Virginia, 536 U.S. 304 (2002). Simmons ﬁled a new petition for state postconviction relief, arguing that the reasoning of Atkins established

8 Death Penalty Information Center, The Death Penalty in 2021: Year End Report (2022).

that the Constitution prohibits the execution of a juvenile who was under 18 when the crime was committed. [The Missouri Supreme Court agreed, and resentenced Simmons to ‘life imprisonment without eligibility for probation, parole, or release except by act of the Governor’.]

The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The provision is applicable to the States through the Fourteenth Amendment. As the Court explained in Atkins, the Eighth Amendment guarantees individuals the right not to be subjected to excessive sanctions. The right flows from the basic “precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” 536 U.S. at 311. By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.

The prohibition against “cruel and unusual punishments,” like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this framework we have established the propriety and afﬁrmed the necessity of referring to “the evolving standards of decency that mark the progress of a maturing society” to determine which punishments are so disproportionate as to be cruel and unusual. Trop v. Dulles, 356 U.S. 86, 100–101 (1958) (plurality opinion).

In Thompson v. Oklahoma, 487 U.S. 815 (1988), a plurality of the Court determined that our standards of decency do not permit the execution of any offender under the age of 16 at the time of the crime. The plurality opinion explained that no death penalty State that had given express consideration to a minimum age for the death penalty had set the age lower than 16. The plurality also observed that “[t]he conclusion that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense is consistent with the views that have been expressed by respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community.” The opinion further noted that juries imposed the death penalty on offenders under 16 with exceeding rarity; the last execution of an offender for a crime committed under the age of 16 had been carried out in 1948, 40 years prior.

Bringing its independent judgment to bear on the permissibility of the death penalty for a 15-year-old offender, the Thompson plurality stressed that “[t]he reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.” According to the plurality, the lesser culpability of offenders under 16 made the death penalty inappropriate as a form of retribution, while the low likelihood that offenders under 16 engaged in “the kind of cost-beneﬁt analysis that attaches any weight to the possibility of execution” made the death penalty ineffective as a means of deterrence ... .

The next year, in Stanford v. Kentucky [supra], the Court, over a dissenting opinion joined by four Justices, referred to contemporary standards of decency in this country and concluded the Eighth and Fourteenth Amendments did not proscribe the execution of juvenile offenders over 15 but under 18. The Court noted that 22 of the 37 death penalty States permitted the death penalty for 16-year-old offenders, and, among these 37 States, 25 permitted it for 17-year-old offenders. These numbers, in the Court’s view, indicated there was no national consensus “sufﬁcient to label a particular punishment cruel and unusual.” ...

The same day the Court decided Stanford, it held that the Eighth Amendment did not mandate a categorical exemption from the death penalty for the mentally retarded. Penry v. Lynaugh, 492 U.S. 302 (1989). In reaching this conclusion it stressed that only two States had enacted laws banning the imposition of the death penalty on a mentally retarded person convicted of a capital offense. According to the Court, “the two state statutes prohibiting execution of the mentally retarded, even when added to the 14 States that have rejected capital punishment completely, [did] not provide sufﬁcient evidence at present of a national consensus.”

Three Terms ago the subject was reconsidered in Atkins. We held that standards of decency have evolved since Penry and now demonstrate that the execution of the mentally retarded is cruel and unusual punishment. The Court noted objective indicia of society’s standards, as expressed in legislative enactments and state practice with respect to executions of the mentally retarded. When Atkins was decided only a minority of States

permitted the practice, and even in those States it was rare. On the basis of these indicia the Court determined that executing mentally retarded offenders “has become truly unusual, and it is fair to say that a national consensus has developed against it.”

... The Atkins Court ... returned to the rule, established in decisions predating Stanford, that “the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Mental retardation, the Court said, diminishes personal culpability even if the offender can distinguish right from wrong. The impairments of mentally retarded offenders make it less defensible to impose the death penalty as retribution for past crimes and less likely that the death penalty will have a real deterrent effect ... .

...

III

A

The evidence of national consensus against the death penalty for juveniles is similar, and in some respects parallel, to the evidence Atkins held sufﬁcient to demonstrate a national consensus against the death penalty for the mentally retarded. When Atkins was decided, 30 States prohibited the death penalty for the mentally retarded. This number comprised 12 that had abandoned the death penalty altogether, and 18 that maintained it but excluded the mentally retarded from its reach. By a similar calculation in this case, 30 States prohibit the juvenile death penalty, comprising 12 that have rejected the death penalty altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach. Atkins emphasized that even in the 20 States without formal prohibition, the practice of executing the mentally retarded was infrequent... . In the present case, too, even in the 20 States without a formal prohibition on executing juveniles, the practice is infrequent ... .

... Impressive in Atkins was the rate of abolition of the death penalty for the mentally retarded. Sixteen States that permitted the execution of the mentally retarded at the time of Penry [supra] had prohibited the practice by the time we heard Atkins. By contrast, the rate of change in reducing the incidence of the juvenile death penalty, or in taking speciﬁc steps to abolish it, has been slower. Five States that allowed the juvenile death penalty at the time of Stanford have abandoned it in the intervening 15 years four through legislative enactments and one through judicial decisions.

Though less dramatic ... we still consider the change from Stanford to this case to be signiﬁcant... . [T]he same consistency of direction of change has been demonstrated ... .

BA majority of States have rejected the imposition of the death penalty on juvenile offenders under 18, and we now hold this is required by the Eighth Amendment.

Because the death penalty is the most severe punishment, the Eighth Amendment applies to it with special force... . Capital punishment must be limited to those offenders who commit “a narrow category of the most serious crimes” and whose extreme culpability makes them “the most deserving of execution.” This principle is implemented throughout the capital sentencing process ... .

Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.” ... It has been noted that “adolescents are overrepresented statistically in virtually every category of reckless behavior.” ...

The second area of difference is that juveniles are more vulnerable or susceptible to negative inﬂuences and outside pressures, including peer pressure... .

The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less ﬁxed.

... The reality that juveniles still struggle to deﬁne their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deﬁciencies will be reformed ... .

Once the diminished culpability of juveniles is recognized, it is evident that the penological justiﬁcations for the death penalty apply to them with lesser force than to adults ... .

As for deterrence, it is unclear whether the death penalty has a signiﬁcant or even measurable deterrent effect on juveniles, as counsel for the petitioner acknowledged at oral argument... . [I]t is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person.

Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules... . The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest.

IV

Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court’s decision in Trop [supra], the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment ...

... Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18. … Parallel prohibitions are contained in other significant international covenants. See [ICCPR], Art. 6(5), 999 U.N.T.S., at 175 (prohibiting capital punishment for anyone under 18 at the time of offense) (signed and ratified by the United States subject to a reservation regarding Article 6(5) ... .

... [O]nly seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Since then each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice. In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty.

… [T]he United Kingdom abolished the juvenile death penalty before [the UN] covenants came into being. The United Kingdom’s experience bears particular relevance here in light of the historic ties between our countries and in light of the Eighth Amendment’s own origins. The Amendment was modeled on a parallel provision in the English Declaration of Rights of 1689, which provided: “[E]xcessive Bail ought not to be required nor excessive Fines imposed; nor cruel and unusuall Punishments inﬂicted.” ...

It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty... . The opinion of the world community, while not controlling our outcome, does provide respected and signiﬁcant conﬁrmation for our own conclusions.

… It does not lessen our ﬁdelity to the Constitution or our pride in its origins to acknowledge that the express afﬁrmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

…

JUSTICE O’CONNOR (DISSENTING)

… [T]he evidence of an international consensus does not alter my determination that the Eighth Amendment does not, at this time, forbid capital punishment of 17-year-old murderers in all cases.

Nevertheless, I disagree with Justice Scalia’s contention that foreign and international law have no place in our Eighth Amendment jurisprudence. Over the course of nearly half a century, the Court has consistently referred to foreign and international law as relevant to its assessment of evolving standards of decency. This inquiry reflects the special character of the Eighth Amendment, which, as the Court has long held, draws its meaning directly from the maturing values of civilized society... . But this Nation’s evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries. On the contrary, we should not be surprised to find congruence between domestic and international values, especially where the international community has reached clear agreement expressed in international law or in the domestic laws of individual countries that a particular form of punishment is inconsistent with fundamental human rights. At least, the existence of an international consensus of this nature can serve to confirm the reasonableness of a consonant and genuine American consensus. The instant case presents no such domestic consensus, however ... . ...

JUSTICE SCALIA (WITH WHOM THE CHIEF JUSTICE AND JUSTICE THOMAS JOIN, DISSENTING)

Though the views of our own citizens are essentially irrelevant to the Court’s decision today, the views of other countries and the so-called international community take center stage.

More fundamentally, however, the basic premise of the Court’s argument that American law should conform to the laws of the rest of the world ought to be rejected out of hand. In fact the Court itself does not believe it. In many signiﬁcant respects the laws of most other countries differ from our law including not only such explicit provisions of our Constitution as the right to jury trial and grand jury indictment, but even many interpretations of the Constitution prescribed by this Court itself. The Court-pronounced exclusionary rule, for example, is distinctively American ... .

... I do not believe that approval by “other nations and peoples” should buttress our commitment to American principles any more than (what should logically follow) disapproval by “other nations and peoples” should weaken that commitment. More importantly, however, the Court’s statement flatly misdescribes what is going on here. Foreign sources are cited today, not to underscore our “fidelity” to the Constitution, our “pride in its origins,” and “our own [American] heritage.” To the contrary, they are cited to set aside the centuries-old American practice a practice still engaged in by a large majority of the relevant States of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty. What these foreign sources “affirm,” rather than repudiate, is the Justices’ own notion of how the world ought to be, and their diktat that it shall be so henceforth in America ... .

Justice Scalia’s argument, reiterated in many other contexts, has drawn strong criticism. The Supreme Court has, over the course of many decades, referred to foreign law and no objection was raised until 1988. But Jeremy Waldron, in ‘Foreign Law and the Modern Ius Gentium’, in M. Andenas and D. Fairgrieve (eds.), Courts and Comparative Law (2015) 550, has also pointed out that ‘the Supreme Court in Roper failed to articulate any general ideas or standards by which its use of foreign law might be evaluated.’ His own analysis acknowledges that ‘[n]o crisp or precise litmus test defines the sort of international consensus that makes up ius gentium [the law of nations] on any particular subject.’ Because interpretation thus inevitably plays an important role, cherry-picking of favorable foreign cases is always a risk. But, for Waldron, it depends on how law is understood:

The real contrast between those who oppose and those who defend the use of foreign law in American legal reasoning is not that jurists in the first group are parochial and the second cosmopolitan. It is rather this contrast between law as will and law as reason. Those who approach the law as a matter of will do not see any reason why expressions of will elsewhere in the world should affect our expressions of will in America. But those who see law as a matter of reason may well be willing to approach it in a scientific spirit that relies not just on our own reasoning but on some rational relation between what we are wrestling with and what others have figured out.

In the same volume, Thomas Graziano, in ‘Is it Legitimate and Beneficial for Judges to Compare?’ (at 26) lists several other commonly invoked arguments against the use of foreign law. They include: (i) foreign law lacks democratic legitimacy; (ii) invoking foreign law undermines the intrinsic coherence of any given national legal system; (iii) courts weigh a range of factors that are specific to the national situation and the resulting decisions are not readily transferable; (iv) ‘legal science’ is a distinctively national science; and (v) judges lack adequate knowledge of foreign law and foreign languages.

Based on a survey of the practice of courts, particularly supreme courts, Graziano identifies the following uses of a comparative approach (at 52):

• in order to demonstrate that the domestic law is fully in line with modern international trends;

• to complement the historical method of interpretation of domestic law;

• to discover and demonstrate the diversity of solutions from which the courts may choose;

• to benefit from experiences made abroad and to avoid reinventing the wheel again and again;

• to sharpen one’s own understanding of certain legal problems and to compare the national solution with differing foreign solutions in order to highlight the particularities of the domestic law;

• to counter arguments that a given solution will lead to harmful or disastrous results;

• to find legal support for a value judgment by the court; and finally,

• to justify changes to domestic case law or to confront new problems, introduce new institutions or remedies.

In his Hamlin Lectures, Lord Bingham, former Lord Chief Justice of England and Wales (Thomas Bingham, Widening Horizons: The Influence of Comparative Law and International Law on Domestic Law (2010) 6), commented that ‘[i]n no other field of intellectual endeavor – be it science, medicine, philosophy, literature, architecture, art, music, engineering or sociology – would ideas or insights be rejected simply because they were of foreign origin … [I]t would be strange if in this field alone practitioners and academics were obliged to ignore developments elsewhere, or at least to regard them as of no practical consequence. Such an approach can only impoverish our law; it cannot enrich it.’ Bingham concluded his lectures (at 83) by quoting Nobel laureate Amartya Sen: ‘Even though contemporary attacks on intellectual globalisation tend to come not only from traditional isolationists but also from modern separatists, we have to recognize that our global civilization is a world heritage – not just a collection of disparate local cultures.’

QUESTIONS

1. How would you explain the contrast between the reluctance of most U.S. Supreme Court justices to invoke international standards or foreign judgments and the apparent enthusiasm of courts in South Africa, Kenya and elsewhere to do so?9

2. How do you react to the idea that ﬁnding ‘consensus’ is very helpful or indispensable to concluding that capital punishment is unconstitutional in a given context? Why are the 50 states the appropriate accounting units (as opposed, say, to the total population in states going one or the other way on the issue)? How large a majority (of states, population, etc.) constitutes a consensus? Is not a trend over a few decades more compelling than the ‘consensus’ at a given moment? Why should consensus be decisive for a justice who follows a different approach to the question of constitutionality?

Racial and Cultural Underpinnings of the Death Penalty

The materials that follow are designed to put the death penalty debate in a broader perspective. Carol Steiker and Jordan Steiker trace the deep role played by racism in the American context, and David Garland asks why the death penalty has been so enduring when so few people are ever actually executed in the United States. Finally, Austin Sarat compares U.S. policy in this area with European approaches. But first, the Death Penalty Information Center’s report, Facts about the Death Penalty (April 10, 2024) takes an instrumentalist approach, in the hope that those who might otherwise support the death penalty will conclude that it is simply too costly:

• Capital trials cost more than non-capital cases because of higher costs for prosecution and defense lawyers; time consuming pre-trial investigation; lengthy jury selection process for death-qualification; enhanced security requirements; longer trials because of bifurcated proceedings; solitary confinement incarceration; and necessary appeals to ensure fairness.

• An economic analysis of independent research studies completed in 15 death penalty states from 2001-2017 found that the average difference in case-level costs for seeking the death penalty was just over $700,000. …

• Oklahoma capital cases cost, on average, 3.2 times more than non-capital cases.

• Defense costs for death penalty trials in Kansas averaged about $400,000 per case, compared to $100,000 per case when the death penalty was not sought.

• A study in California revealed that the cost of the death penalty in the state has been over $4 billion since 1978. …

• A report by the Administrative Office of the U.S. Courts in 2010 found that seeking a federal death sentence costs 8 times more than seeking a life sentence.

A historical perspective on the role of race is provided by Carol S. Steiker and Jordan M. Steiker, in ‘The Rise, Fall, and Afterlife of the Death Penalty in the United States’, 3 Annual Rev. Criminol. (2020) 299 at 304:

Capital punishment in the antebellum South was an essential part of maintaining the slave economy … Whereas the vast majority of whites executed in the antebellum South were punished for murder, blacks were also frequently executed for rape, slave revolt, attempted murder, burglary, and arson. Owners of executed slaves were compensated by

9 For a comparison of the United States and South Africa, see M. Ndulo, ‘International and Foreign Law in Domestic Constitutional Law’, in A. L. Cantillo, et al (eds.), Constitutionalism: Old Dilemmas, New Insights (2021) 373.

the state to discourage shielding their slaves from the harsh, racialized criminal justice system.

Following the adoption of the Fourteenth Amendment in 1868, lynching replaced official executions in many Southern states. Reduced resort to lynching in the early twentieth century led to an increase in official executions, although the distinction between the two phenomena was sometimes blurred. Steiker and Steiker note that mobs sometimes assembled ‘at the court-house steps, or even in the courtroom, insisting on the swift declaration of a death sentence … . These “legal lynchings” prompted the Supreme Court to begin to regulate state capital systems.’

An important advocacy role was played by the National Association for the Advancement of Colored People, founded in 1909 by W. E. B. Du Bois and others. Its Legal Defense Fund (LDF), created in 1939, played a major role in linking the death penalty to racial discrimination and in bringing cases to the Supreme Court. In Furman v. Georgia (1972), the court held that under certain circumstances the death penalty could violate the Eighth Amendment prohibition of cruel and unusual punishment. After a temporary national moratorium, followed by significant reforms at the state level, the court effectively reinstated the death penalty in Gregg v. Georgia (1976) which held that it could be an appropriate punishment for murder. In Coker v. Georgia (1977), the imposition of a death sentence for rape was found to violate the Eighth Amendment.

In 1983 the Baldus study,10 , commissioned by the NAACP, examined over 2,000 murder cases since the Furman decision in 1972. use of the death penalty. It found that cases involving white victims were at least four times more likely to generate death sentences than cases with minority victims. In McCleskey v. Kemp (1987), the court accepted the study’s methodological soundness but rejected the argument that system-wide racial discrimination, rather than case-specific discrimination, was sufficient to warrant relief. According to Steiker and Steiker:

McCleskey is a remarkable decision in acknowledging the presence of racial disparities and suggesting that they are not susceptible to judicial remediation. McCleskey’s legacy remains contested. Although it possibly strengthened the political case against the death penalty by highlighting the failure of legislatures and courts to curtail its discriminatory administration, the decision may reflect a broader reluctance to engage the death penalty on racial terms, thereby contributing to a diminished role for race in contemporary abolitionist discourse.

Since McCleskey, the Supreme Court has focused on more discrete instances of alleged racial discrimination and misconduct. …

Racial discrimination appears to permeate all phases of capital litigation, including investigation, charging decisions, jury selection, and sentencing. Such discrimination appears to influence not only which inmates are sentenced to death but also which are actually executed. …

In a 2020 update, Scott Phillips and Justin Marceau, in ‘Whom the State Kills’, 55 Harv. Civ. Rights-Civ. Lib. L. Rev (2020) 585, supplemented the sentencing data in Baldus’s study with their own original execution data. They concluded that ‘the overall execution rate is substantially greater for defendants convicted of killing a white victim than for those convicted of killing a Black victim. Specifically, 2.26% (22/972) of the defendants who were convicted of killing a white victim were ultimately executed, compared to just 0.13% (2/1503) of the defendants convicted of killing a Black victim. Thus, the overall execution rate is a staggering seventeen times greater for defendants convicted of killing a white victim’.

Various authors have sought to explain why the death penalty has survived in the United States when most of its peer countries have long since abolished it. Consider this analysis by David Garland, in Peculiar Institution: America’s Death Penalty in an Age of Abolition (2010):

10 David Baldus, Charles Pulaski, and George Woodworth, ‘Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience’, 74 J. Crim. Law & Criminology (1983) 661.

The American capital punishment system has not survived into the twenty-first century because death sentences are more necessary or more functional in the United States than elsewhere. …

[The survival of the death penalty in America] has little to do with its instrumental value for governmental or penal purposes and everything to do with the institutional difficulty of securing abolition in the face of majority public opinion. But … the institution has been used by groups and actors who have seized the opportunities that it provides to advance their interests or meet their needs. These actors have taken the death penalty and made it work for them, using it sometimes to express their sense of justice, sometimes to enhance their power, their profit, and their casual pleasure.

… The day-to-day uses of the American death penalty are grounded in the microphysics of local politics of group relations and status competition, professional rivalry and ambition, and the venal give-and-take of political exchange rather than being connected to the great ends of state. …

The system of capital punishment that exists in America today is primarily a communication system. … [The system] is about mounting campaigns, taking polls, passing laws, bringing charges, bargaining pleas, imposing sentences, and rehearing cases. It is about threats rather than deeds, anticipated deaths rather than actual executions. …

Capital punishment in America today operates primarily on the plane of the imaginary, and the great majority of its deaths are imagined ones. But the political and economic effects of these grim fantasies are no less real for being imagined. In American criminal sentencing, the availability of the death penalty permits very lengthy sentences of imprisonment, even life imprisonment without parole, to appear comparatively humane, thereby contributing to the nation’s extraordinary rates of imprisonment. In the American political system and in the entertainment zone of popular culture, talk about death permits symbolic acts, exchanges, and representations that are used by groups and individuals in their pursuit of power, profit, and pleasure. That the death penalty is increasingly declaratory and discursive makes it no less powerful in its political, legal, and cultural effects. Nor is it any less lethal for the more than twelve hundred men and women who have been put to their deaths since executions resumed three decades ago.

Focusing on U.S. exceptionalism more broadly, the same author, David Garland, in ‘Penal Controls and Social Controls: Toward a Theory of American Penal Exceptionalism’, 22 Punishment & Society (2020) 321, at 336, explains why America is characterized by exceptional levels of both violence and disorder and of punishment:

… [Structural] reasons … make social policy programs less likely than penal responses. Social policy interventions are generally more long-term and more expensive even if they would work out cheaper in the end and their impact upon crime is less targeted and less direct. Given powerful resistance to taxation, Republican opposition to social spending, the short-termism of election cycles, popular hostility toward ex-prisoners and people on welfare, and a division of political power that allows numerous opportunities to veto controversial legislation, American governments are generally predisposed to reject preventative social investments and rely instead upon post facto responses. Given this settled disposition, efforts to mount social interventions often require novel forms of expertise, personnel, and agencies and a willingness to engage in long-term investment and institution-building on the part of government. In contrast, there is a ready-made resort to police, prosecution, and imprisonment that makes penal control the path of least resistance. Political barriers are lower too, since proposals to increase punishments rarely meet with organized opposition.

… [There is thus a] settled political preference for penal rather than social measures, especially where poor minorities are concerned. But I want to suggest that the resort to penal controls is also determined by limits of state capacity: that America’s ultra-liberal political economy has produced a welfare state that is much less expansive and much less enabling. That, as compared to other nations, the US state (at the national, state, and local levels) has a more limited capacity for remedial social action. …

… America’s meagre welfare state is less well equipped with the kinds of soft power the social services, personnel, infrastructure, and capacity for positive, co-ordinated action that other nations use to deal with crime and disorders. As a consequence, it lacks social reach and effectiveness. When American politicians, policy-makers, and judicial actors are faced with urgent demands to stem the tide of criminal violence, they have fewer options at their disposal and those they have are mostly repressive. As a result, American criminal justice is charged with tasks that other nations allocate to social service agencies. Jails are America’s biggest mental health facilities a task for which they are singularly ill-suited. And America’s police relatively ill-trained as they are are expected to manage the social and health problems of poor communities in addition to the work of law enforcement.

AUSTIN SARAT, THE DEATH PENALTY ON THE BALLOT: AMERICAN DEMOCRACY AND THE FATE OF CAPITAL PUNISHMENT (2019)

… Over the course of the twentieth and into the twenty-ﬁrst centuries, death penalty ballot campaigns [at the state level in the US] served to mobilize affect, appeal to group thinking, and stoke fears. Images of capital punishment and its role in society have been carefully crafted and marketed, and voters have repeatedly been asked to choose sides on one of America’s most charged and divisive issues.

The European Comparison

Putting important public policy questions, like whether to retain or abolish the death penalty, on the ballot exempliﬁes what James Whitman calls the “weakness” of the American state in comparison with European states.11 Those states, he says, are both “relatively powerful and autonomous ... They are autonomous in the sense that they are steered by bureaucracies that are relatively immune from the vagaries of public opinion.” The strength of the state allowed nations like Germany and France to abolish capital punishment when a majority of their citizens continued to support it. Describing abolition in those countries, Whitman observes that “government actors initiate abolition and slowly bring public opinion around.”

In Germany, the post-war “Basic Law” (Grundgesetz), ratified in 1949, contained Article 102, a simple fourword article that in English reads “capital punishment is abolished.” This constitutional provision reflected Germany’s “revulsion at the large number of death sentences carried out in the last few years” and symbolized the state’s commitment to distancing itself from the atrocities of the Holocaust. Since its enactment, there have been numerous attempts to reinstate capital punishment. One, which occurred when the Deutsche Partei filed a motion to reintroduce capital punishment in 1952, illustrates the way German political leaders think about their role in the face of public agitation to restore the death penalty. Thomas Dehler of the Free Democratic Party urged government officials to ignore the German people’s preference for capital punishment. As Dehler put it, “one fails to recognize the true meaning of democracy when one believes that the parliament is the executor of the people’s will.” Elected representatives, he argued, were required to demonstrate “greater insight, understanding, and responsibility than the great mass of citizens” and were called upon to respect human dignity, uphold a modern justice system, and firmly reject the contempt for human life previously exhibited by the Nazi Party.

In France, after a series of highly publicized brutal crimes fueled an increased fear of crime and pushed public sentiment in favor of capital punishment in the 1970s, abolitionists claimed that ending capital punishment was

11 J. Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe (2003) 13–14.

the “next urgent step in the march of human progress.” Spearheaded by legal scholar and activist Robert Badinter and by François Mitterand, France’s president and leader of the Socialist Party, the French Parliament voted to end the death penalty in September 1981 by a vote of 333 to 117. In 2007 the French Constitution was amended to say, “No one can be sentenced to death.” As historian Robert A. Nye observes, “The abolition of capital punishment in France was accomplished as a coup d’etat by a political and intellectual elite against the clearly established sentiments of the vast majority of the public.”

While European political elites “had the legal capacity and political opportunity to pass laws that abolished ... (the death penalty) once and for all,” America’s political system divides and fragments power and prevents such uniform action. The vulnerability of the American state, Whitman argues, is particularly consequential in the domain of crime and punishment, where the public tends to be more punitive in its dispositions than state ofﬁcials and elites. The death penalty persists in the United States because lawmakers responsible for criminal justice policy are much more responsive to the public than are their counterparts in Europe and because the public plays a larger role in legislating about capital punishment.

What sets America apart, Whitman argues, “is the relatively easy translation of majority sentiment into policy.” When courts, legislators, or executives have been willing to face the political consequences of trying to abolish the death penalty, the public used initiative and referendum processes, like those in California, Nebraska, and Oklahoma in 2016, to parry those efforts. European “voters can exercise only gradual inﬂuence over the broad outlines of criminal justice policy, by voting for different political parties”; Americans can use initiatives and referenda to pass criminal laws as direct legislation. …

Life Without Parole

One of the unintended consequences of the abolition of the death penalty has been the increased popularity of life without parole (LWOP) sentences. Every state in the USA, except Alaska, permits LWOP as a possible sentence. In Graham v. Florida, 130 S. Ct. 2011 (2010) the US Supreme Court held that the sentence of life without parole for a non-homicide offense committed by a juvenile violated the Eighth Amendment’s prohibition against cruel and unusual punishments. In Miller v. Alabama and Jackson v. Hobbs, 132 S.Ct. 2455 (2012) this was extended to apply to convictions for all offences, including homicide.

As countries like India and China come under increased pressure to reduce or eliminate capital punishment, there has been a marked increase in the number of LWOP sentences.12 And even countries that do not provide for such sentences per se use surrogates such as imposing ten cumulative life sentences. Between 2000 and 2014 there was an 80 percent rise in life sentences globally. In the U.S. the number increased by almost 70 percent, to 56,000, between 2003 and 2020. One in 7 people in U.S. prisons is serving a life sentence, either life without parole (LWOP), life with parole (LWP) or virtual life (50 years or more), totaling 203,865 people, according to The Sentencing Project, No End in Sight: America’s Enduring Reliance on Life Imprisonment (2021). Over two-thirds of those serving life sentences are people of color.

12 See generally, Dirk van Zyl Smit and Catherine Appleton, Life Imprisonment: A Global Human Rights Analysis (2019).

Ch. 01-International Human Rights

I ntern ational Human Rights

PHILIP

ALSTON

PART A: INTRODUCTION TO THE INTERNATIONAL HUMAN RIGHTS REGIME

Chapter 1. Human Rights Concepts and Discourse

A. GLOBAL SNAPSHOTS

B. HUMAN RIGHTS DISCOURSE: CAPITAL PUNISHMENT

1. The Rapidly Changing Law on Capital Punishment

Arguments about Justiﬁcations for Continuing or Abolishing the Death Penalty

STATE V. MAKWANYANE

The right to dignity

The right to life

Public opinion

Section 33 and limitation of rights

Deterrence

Retribution

Conclusion

E. ISSUES FOR DETERMINATION

F. ANALYSIS

i.Violationoftherighttofairtrial

QUESTION

2. The Death Penalty in India

The Nirbhaya Gang-rape Case

R. BANUMATHI, J. [CONCURRING]

RESPONSES TO THE NIRBHAYA CASE6

3. Drugs and the Death Penalty

QUESTIONS

4. The Death Penalty in the United States

III

A

IV

QUESTIONS

Racial and Cultural Underpinnings of the Death Penalty

AUSTIN SARAT, THE DEATH PENALTY ON THE BALLOT: AMERICAN DEMOCRACY AND THE FATE OF CAPITAL PUNISHMENT (2019)

The European Comparison

Life Without Parole