The Global Decline of the Mandatory Death Penalty

Constitutional Jurisprudence and Legislative Reform in Africa, Asia, and the Caribbean

Andrew Novak

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317030270
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Historically, at English common law, the death penalty was mandatory for the crime of murder and other violent felonies. Over the last three decades, however, many former British colonies have reformed their capital punishment regimes to permit judicial sentencing discretion, including consideration of mitigating factors. Applying a comparative analysis to the law of capital punishment, Novak examines the constitutional jurisprudence and resulting legislative reform in the Caribbean, Sub-Saharan Africa, and South and Southeast Asia, focusing on the rapid retreat of the mandatory death penalty in the Commonwealth over the last thirty years. The coordinated mandatory death penalty challenges - which have had the consequence of greatly reducing the world's death row population - represent a case study of how a small group of lawyers can sponsor human rights litigation that incorporates international human rights law into domestic constitutional jurisprudence, ultimately harmonizing criminal justice regimes across borders. This book is essential reading for anyone interested in the study and development of human rights and capital punishment, as well as those exploring the contours of comparative criminal justice.

Chapter 1
Introduction: The Mandatory Death Penalty in Historical and Comparative Perspective

A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.

Justice Potter Stewart, Woodson v. North Carolina (1976)¹

To deny the offender the opportunity, before sentence is passed, to seek to persuade the court that in all the circumstances to condemn him to death would be disproportionate and inappropriate is to treat him as no human being should be treated and thus to deny his basic humanity …

Lord Bingham of Cornhill, Reyes v. Queen (2002)²

The death penalty is in rapid and irreversible retreat everywhere in the English-speaking world, even in the most intransigent holdouts like Texas and Singapore.³ The common law mandatory death sentence, automatic upon conviction for homicide or a small number of other serious felonies, has declined even faster than this, to the point of extinction in the Commonwealth. The penalty simplifies the sentencing process for the resource-constrained legal systems of the developing world, but it works a harsh justice. By sweeping in mercy killing with sadistic killing and cold-blooded murder with heat-of-passion murder, the mandatory death penalty shifts sentencing discretion from a trial judge to an executive or a mercy committee that grants clemency or pardon in troublesome cases but fails to reduce all risk of arbitrariness or mistake.⁴ In short a mandatory death regime overpunishes in a world in which the death penalty, as the ultimate expression of state power, must be treated with great care.

Because postcolonial independence constitutions generally contain fundamental rights provisions that include due process rights and a prohibition on cruel and degrading punishment, they possess uniform constitutional vulnerabilities that make collateral attacks on the death penalty possible.⁵ Human rights litigation against the mandatory nature of the death penalty has succeeded in the establishment of discretionary capital punishment regimes throughout the English-speaking Caribbean; in the African countries of Kenya, Malawi, and Uganda; and in India and Bangladesh.⁶ Because of similarities in the criminal justice systems that Commonwealth countries inherited from Great Britain, courts across the English-speaking world, including the United States, “share” death penalty jurisprudence by citing to one another and building a corpus of comparative case law that has successfully restricted the application of the death penalty.⁷

In practice, there are three ways to mitigate the harshness of the mandatory death penalty for murder. The first is to separate the crime of murder into two offenses, capital murder and non-capital murder, and retain the mandatory death sentence for only a small range of particularly heinous crimes. This is the system devised by Great Britain’s Homicide Act of 1957 after the Royal Commission on Capital Punishment concluded that the “outstanding defect of the law of murder is that it provides a single punishment for a crime widely varying in culpability.”⁸ The Homicide Act limited the mandatory death penalty to special cases of aggravated murder, such as murder of a law enforcement officer or murder performed in the course of theft, by shooting or explosion, or while resisting arrest or escaping custody. All other murders fell outside the scope of mandatory death, which proved unsatisfactory as murders otherwise widely regarded as heinous, such as the sexual or sadistic murders of children, were considered “less serious,” fueling pressure for eventual abolition of the death penalty for homicide in 1965.⁹ More recently, other Commonwealth jurisdictions, notably Singapore in its sweeping legislative reform of 2012, have experimented with this alternative.

The other two ways in which the mandatory death penalty may be replaced by a more parsimonious regime require allocating sentencing discretion to the trial judge to determine whether the individual circumstances of the offense warrants the punishment of death. One option is to require the judge to articulate a specific aggravating factor in the case that places the murder in a special category of seriousness. This is the prevailing system in the United States after Woodson v. North Carolina and India after Mithu v. State of Punjab, which found mandatory death sentences unconstitutional and replaced them with pure discretionary death regimes.¹⁰ The other alternative is the opposite, to require a judge to articulate a specific mitigating factor that removes the case from the category of seriousness warranting death. This is the regime ushered in by the Criminal Procedure and Evidence (Amendment) Act of 1935 in apartheid South Africa, which had the consequence of turning a mandatory death sentence into a rebuttable presumption in favor of death.¹¹ Known as the “doctrine of extenuating circumstances,” this alternative passed into the law of other Southern African countries and to the South Pacific nation of Papua New Guinea.

Of these three options, the second one has become by far the dominant model in the common law world because it both resolves the underlying dilemma created by a mandatory death sentence and because it accords with the international trend toward limiting use of the death penalty to only the “most serious crimes.”¹² The first option creating a narrow class of mandatory capital offenses greatly reduces the scope of problematic cases because it inherently requires an aggravating factor for the death penalty’s imposition. However, by failing to consider individual circumstances of the offense or the offender, this narrows the fundamental flaw of a mandatory death regime without completely resolving it, as some offenders guilty of even the most aggravated offenses may still have mitigating factors in their specific cases. Similarly, the third option, a presumption in favor of death as established by the doctrine of extenuating circumstances in Southern Africa, does not accord with the emerging global consensus that the death penalty should be limited to the rarest of the rare and the worst of the worst. Requiring a defendant to show why he or she should not be executed lacks the analytical clarity of a pure discretionary death penalty and places an extra burden on defense counsel.

The Origins of the Common Law Mandatory Death Penalty

Historically, at English common law the death penalty was mandatory upon conviction, a punishment that passed to the Empire and was retained in many colonies after independence.¹³ Capital punishment reached its zenith in England during the 1700s with the decline of transportation to a penal colony as a criminal sanction, which in turn led to increased mercy and pardon requests from the gallows and squalid and overcrowded conditions in the gaol.¹⁴ Beginning after the English Revolution, the cabinet was required to confirm every capital case by considering each condemned prisoner for reprieve or pardon, and on what conditions. After a final decision, only a petition made to the king for mercy through the secretary of state was available to the prisoner.¹⁵ During the 1780s, as many as 56% of capital condemned prisoners were hanged, a “judicial carnage” of numbers that were unprecedented before then and unsustainable after. The proportion of pardons simply had to increase to prevent public unrest at the bloodshed, and more complex mercy procedures developed in which the Recorder of London, the head judicial administrative officer for the city, consulted with the home secretary in every case.¹⁶ This process was the precursor to the advisory committee on the prerogative of mercy that was installed in British colonies where it remains in many Commonwealth constitutions today.

Pardons were common; about half of those condemned to death during the eighteenth century were not sent to the gallows. It may be that mercy was ultimately a political decision. “Petitions were most effective from great men, and the common course was for a plea to be passed up through increasingly higher levels of the social scale, between men bound together by the links of patronage and obligation.”¹⁷ Many mercy petitions were written by gentlemen on behalf of their laborers. Indeed, the pardon “put the principle instrument of legal terror—the gallows—directly in the hands of those who held power,” simultaneously appearing impartial “acts of grace,” while reinforcing class division and patronage to special interests.¹⁸ In general, however, the grounds for pardon—for the young, the old, the mentally and physically infirm, the potentially reformable and re-employable, the poor, those with strong character references, those who were potentially innocent, and those who committed no violence or deception—conformed to “a set of broadly held social ideals about how justice should work.”¹⁹

Most of those hanged at the gallows in Tyburn in London during the seventeenth and eighteenth centuries were guilty of property crimes, as they violated the sacred social contract of respect for private property.²⁰ In this sense, executions represented—to a far greater degree than in the modern era—the infliction of the ultimate punishment of death on lower, economically disadvantaged classes by upper landed classes. By the turn of the nineteenth century, executions for juveniles declined to zero as a result of prosecutions based on downgraded (non-capital) charges, increasingly restive juries, and robust executive clemency.²¹ By contrast, persons in their late teenage years and twenties were the most likely to receive the death sentence and the least likely to receive a reprieve. Men were more than twice as likely to be sentenced to death as women, and twice as likely to be transported to the penal colonies; by the second half of the eighteenth century, courts were very reluctant to sentence women to the gallows.²² By the time colonial penal codes were drafted in the late nineteenth century, they uniformly included exceptions for juveniles and pregnant women from the scope of capital punishment.

The most obvious change to sentencing policy between 1740 and 1820 was the decline of physical and often publicly inflicted punishments such as whipping and branding, and the rise of imprisonment.²³ Like punishments generally, executions were elaborate symbols of state...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• A Note on Sources
• About the Author
• Acknowledgments
• 1 Introduction: The Mandatory Death Penalty in Historical and Comparative Perspective
• 2 An Excessive and Arbitrary Punishment: The Mandatory Death Penalty and Discretion in the United States of America
• 3 Restricting the Death Penalty to the “Rarest of the Rare”: The Origins of a Discretionary Death Penalty in India and Bangladesh
• 4 A Successful Experiment: The Abolition of the Mandatory Death Penalty in the Commonwealth Caribbean
• 5 The Holdouts: The Survival of the Mandatory Death Penalty in Malaysia and Singapore
• 6 The New Frontier: Constitutional Challenges to the Mandatory Death Penalty in Sub-Saharan Africa
• 7 The Doctrine of Extenuating Circumstances: The Rise of Judicial Sentencing Discretion in Southern Africa
• 8 Conclusion: After the Mandatory Death Penalty
• Index
• Table of Authorities