September 21, 2011
Constitutionality of the Death Penalty
Today, as many are considering the constitutionality and other legalities of the death penalty, specifically in the case of Troy Davis accompanied by doubts regarding his guilt and worldwide protests (pictured right) the decision of the Constitutional Court of South Africa in State v. Makwanyane might be relevant.
 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 [of the Constitution]. By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others. And this must be demonstrated by the State in everything that it does, including the way it punishes criminals. This is not achieved by objectifying murderers and putting them to death to serve as an example to others in the expectation that they might possibly be deterred thereby.
 In the balancing process the principal factors that have to be weighed are on the one hand the destruction of life and dignity that is a consequence of the implementation of the death sentence, the elements of arbitrariness and the possibility of error in the enforcement of capital punishment, and the existence of a severe alternative punishment (life imprisonment) and, on the other, the claim that the death sentence is a greater deterrent to murder, and will more effectively prevent its commission, than would a sentence of life imprisonment, and that there is a public demand for retributive justice to be imposed on murderers, which only the death sentence can meet.
 Retribution cannot be accorded the same weight under our Constitution as the rights to life and dignity, which are the most important of all the rights in Chapter Three. It has not been shown that the death sentence would be materially more effective to deter or prevent murder than the alternative sentence of life imprisonment would be. Taking these 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. In the circumstances, it is not necessary for me to consider whether the section would also be inconsistent with sections 8, 9 or 10 of the Constitution if they had been dealt with separately and not treated together as giving meaning to section 11(2).
Justice Ginsburg recently voiced her opposition to the death penalty, in a discussion at UC-Hastings School of Law. As reported by the San Francisco Chronicle last week,
The subject of capital punishment came up when Hastings Professor Joan Williams, who conducted the 90-minute question-and-answer session, asked the 78-year-old justice what she would like to accomplish in her remaining years on the court.
"I would probably go back to the day when the Supreme Court said the death penalty could not be administered with an even hand, but that's not likely to be an opportunity for me," Ginsburg said.
She was referring to the ruling in a 1972 Georgia case that overturned all state death penalty laws, which had allowed judges and juries to impose death for any murder. Four years later, the court upheld another Georgia law that prescribed death for specific categories of murder and gave guidance to juries, a model that California followed when it renewed capital punishment in 1977.
Ginsburg described review of impending executions as "a dreadful part of the business," and said she has chosen not to follow the path of the late Justices Thurgood Marshall and William Brennan - who declared in every capital case that they considered the death penalty unconstitutional - so that she could maintain a voice in the debate.
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