Vol. 25 No. 2 (February 2015) pp. 31-35
THE GLOBAL DECLINE OF THE MANDATORY DEATH PENALTY: CONSTITUTIONAL JURISPRUDENCE AND LEGISLATIVE REFORM IN AFRICA, ASIA, AND THE CARIBBEAN by Andrew Novak. Burlington, VT: Ashgate Publishing Company. 2014. 182 pp. Cloth $113.95. ISBN: 9781472423252.
Reviewed by David T. Johnson, Professor of Sociology, University of Hawaii at Manoa. Email: firstname.lastname@example.org.
The historical trajectory of capital punishment is similar in many countries. Capital punishment once was used almost everywhere, targeted many kinds of offenses and offenders, and enjoyed unquestioned legitimacy, but in recent decades this institution has been undergoing a gradual process of “modification, diminution, and abolition” (Garland 2005 p. 355). The common features of decline include a reduced range of capital offenses and eligible offenders; the abolition of aggravated death sentences; the removal of executions from the public square; the adoption of technologies designed to speed death and reduce pain at the time of execution; the emergence of normative discourses challenging capital punishment; the appearance of divisions in public opinion about the propriety of capital punishment; the development of formal procedures and safeguards for administering the capital sanction; a sharp decrease in the frequency of executions; and in many but not all societies, a movement to partial and then complete abolition (Garland 2005; see also Garland 2010 ch.3-4). As of the end of 2013, about 70 percent of the world’s countries had abolished capital punishment, and only one country in nine carried out executions in that year.
Andrew Novak’s fine book on the global decline of mandatory capital punishment describes and explains another dimension of the death penalty’s diminution. In Africa, Asia, the Caribbean, and countries of the West, the death penalty used to be mandatory for murder and other serious crimes, but this punishment has been in rapid retreat since the 1970s. Novak focuses on the constitutional jurisprudence and legislative reform of mandatory capital punishment in the United States (chapter 2), India and Bangladesh (chapter 3), the countries of the Commonwealth Caribbean (chapter 4), Malaysia and Singapore (chapter 5), and man of the countries in Sub-Saharan and Southern Africa (chapters 6 and 7). In all, he analyzes mandatory death penalties in about 30 countries, making this work as broad as it is deep. One theme running through the book is how historical similarities in law in the former British colonies enabled human rights litigation brought by a small number of lawyers (including Saul Lehrfreund, Parvais Jabbar, and the late Bernard Simons at the Death Penalty Project in London) to challenge mandatory death penalties in wide variety of jurisdictions.
Although mandatory capital punishment was never popular in the United States and had mostly died out by the early 20th century (p. 20), the beginning of the end of this sanction occurred in this country. In FURMAN V. GEORGIA (1972), the U.S. Supreme Court held that capital punishment violated the U.S. Constitution because it was administered in ways that were arbitrary and, therefore, “cruel and unusual.” FURMAN prompted many American states to revise their capital statutes by addressing the shortcomings the Court had condemned. Four years later in WOODSON V. NORTH CAROLINA (1976) and the companion case STANISLAUS ROBERTS V. LOUISIANA (1976), the U.S. Supreme Court invalidated [*35] mandatory death penalties for murder while upholding in GREGG V. GEORGIA (1976) the newly enacted death penalty statutes of Georgia, Florida, and Texas, which gave juries discretion to decide who should be sentenced to death and guidance about how to exercise that discretion. In effect, the GREGG case resurrected American capital punishment while the WOODSON and ROBERTS decisions buried mandatory application of this sanction. As Justice Potter Stewart wrote in WOODSON:
“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 member of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.”
Today, nearly four decades later, WOODSON’S holding that mandatory capital punishment is excessive and arbitrary is “cited and followed worldwide for the proposition that a mandatory death sentence may be too harsh for a crime given the individual circumstances of the offense, making such a disproportionate sentence unconstitutionally cruel and degrading” (p. 9).
The U.S. Supreme Court’s approach to capital punishment first extended its reach to South Asia. In 1980, India’s Supreme Court held that capital punishment must be reserved for the “rarest of the rare” crimes (BACHAN SINGH V. STATE OF PUNJAB), and three years later it held that mandatory death sentences are unconstitutional (MITHU V. STATE OF PUNJAB). Thereafter, India’s death penalty jurisprudence had “an outsized impact on neighboring Bangladesh,” where the High Court struck down mandatory capital punishment in 2010 by “following the persuasive decisions of the Supreme Court of India” (p. 44). Bangladesh’s High Court held that when the legislature prescribes mandatory capital punishment, “the hands of the court are tied” and the “court becomes a simple rubberstamp of the legislature” (BANGLADESH LEGAL AID AND SERVICES TRUST (SUKAR ALI) V. BANGLADESH), and it ruled that this is impermissible under the country’s Constitution. Through the influence of these developments in India and Bangladesh, Sri Lanka has also modified its mandatory death provisions (p. 46).
Novak calls the abolition of mandatory capital punishment in the Commonwealth Caribbean “a successful experiment” (p. 47). Until the 20th century, British colonizers frequently used capital punishment in the Caribbean, especially against slaves in the plantation economy. The death penalty was mandatory following conviction for a capital crime, though slaveholders could petition the governor for pardon or reprieve on a slave’s behalf. As states in the Caribbean secured their independence in the 1960s, 1970s, and early 1980s, crime rose rapidly, leading to calls for more frequent use of capital punishment. But that did not occur. Instead, human rights activists achieved “striking success” through an “incrementalist litigation strategy” (p. 72) aimed at total abolition. These activists brought cases before the United Nations Human Rights Committee and the Inter-American Human Rights System, thereby building a large body of death penalty [*32] jurisprudence based on international treaty obligations. As a result, the mandatory death penalty for murder is prohibited in nearly every country in this region, and executions are rare events. Saint Kitts and Nevis carried out one execution in 2008 (the first in the Americas outside the United States since 2003), but in every other country in this region at least ten years have passed since a judicial execution occurred. Public opinion research in the Caribbean shows high levels of support for capital punishment (89 percent in 2011) but weak support for mandatory death sentences for murder (26 percent). Restricting the scope and scale of capital punishment in the Caribbean has also come at a cost, for these reforms have had the appearance of being externally imposed by Britain, the former colonial master. One consequence is the creation of a new Caribbean Court of Justice to serve as the regional court of final appeal in place of the Privy Council, though so far the new Court has conformed to previous judgments.
Mandatory capital punishment has almost disappeared in the Americas, South Asia, and the Caribbean, but it survives in “the holdouts” of Malaysia and Singapore, which also retain mandatory judicial caning. On the surface, these two nations seem to have several barriers to death penalty reform, from cultures of law and order and statist constitutions with weak protections for fundamental rights, to isolation from international human rights treaties and inactive civil societies. Nonetheless, in both Malaysia and Singapore the mandatory death penalty is in “sharp decline” following constitutional challenges to it, especially for drug offenses (p. 75). In this sense, even “the holdouts” are losing their hold on mandatory capital punishment. Novak predicts they may well align themselves with the rest of the Commonwealth by restricting the death penalty to the rarest cases and by developing sentencing schemes that permit individualized decision-making in capital cases (p. 97). Novak also compares Malaysia and Singapore with Hong Kong, which abolished capital punishment in 1993 and last carried out an execution in 1966 (the year after Britain abolished the death penalty for ordinary crimes). This comparison suggests the limits of “Asian values” arguments in support of capital punishment. After abolition in Hong Kong—and after Hong Kong’s return to the Chinese mainland in 1997 under the PRC’s “one country, two systems” policy—there has been little enthusiasm for resurrecting the death penalty. Thus, cultural ties to capital punishment have had little visibility in a jurisdiction that seems as culturally “Asian” as Malaysia and Singapore (Johnson and Zimring 2009 p. 372). In addition, Hong Kong and Singapore experienced remarkably similar homicide declines between 1980 and 2010 despite extremely different death penalty policies (Hong Kong did not execute anyone during this period while Singapore had one of the world’s most aggressive execution policies). In this sense, Singapore’s “exuberant claims” about deterrence through the death penalty seem overstated (p. 93).
Novak’s final two foci are the countries of Sub-Saharan Africa and Southern Africa. The near-extinction of mandatory capital punishment in the Commonwealth Caribbean has had its greatest impact in the East African countries of Kenya, Uganda, and Malawi, “which have similar legacies of British colonial criminal justice and postcolonial constitutions that recognize due process rights and prohibitions on cruel and degrading punishment” (p. 99). Constitutional challenges to mandatory capital punishment are also planned or pending in Nigeria, Sierra Leone, Tanzania, and Zambia. With one notable exception (Ghana), Commonwealth Africa seems to be following “the emerging global consensus [*33] that not all murders are equally heinous and deserving of death, that the right to a fair trial includes a right to a sentencing hearing, and that a disproportionately harsh sentence is cruel and degrading punishment” (p. 123). In these nations, the trend toward abolition of mandatory capital punishment has been led by a small network of anti-death penalty activists in London and by their partners on the ground in common law Africa.
In Southern Africa, too, litigation to mitigate the harshness of the common law’s system of mandatory capital punishment has helped inject judicial discretion into sentencing schemes in South Africa and several neighboring nations where the traditional application of the doctrine of “extenuating circumstances” required a convicted murderer to show (by a preponderance of the evidence) that circumstances existed at the time of the crime that reduced his or her moral blameworthiness—otherwise he or she would be sentenced to death (p. 126). In effect, this doctrine functioned as a rebuttable presumption in favor of death and as a hybrid between a mandatory death penalty and a discretionary one (p. 161). The erosion of the doctrine of extenuating circumstances in Southern Africa resulted not from a single constitutional challenge (though the MAKWANYANE decision by South Africa’s Constitutional Court in 1995 was exemplary), but from dozens of individual appeals, including some from the small legal systems of Swaziland, Lesotho, Namibia, and Botswana. Ultimately, the replacement of the doctrine of extenuating circumstances with discretionary death sentencing “fits the larger continent-wide trend toward individualized sentencing discretion in capital cases” (p. 161). It also means that Southern Africa’s death penalty regimes “now operate closer to conformity with international human rights norms” (p. 162).
This book is deeply researched, well written, original, and insightful. It makes a major contribution to scholarship showing the death penalty’s downward trajectory, and in a short concluding chapter it also suggests three broad implications that follow from the study. First, the abolition of mandatory capital punishment could make mandatory life imprisonment vulnerable, especially where no provision is made for parole (p. 164). Second, the spread of discretionary schemes for deciding criminal punishment creates serious challenges for consistency in sentencing, which different jurisdictions are addressing in different ways (p. 165). Third, the decline of mandatory capital punishment tends to reduce the role of executive clemency by shifting discretion away from the executive to judges in the sentencing phase of trial (p. 166). These are interesting connections, and I wish they had been explored in more detail. I also wish Novak had related his impressive field research to some areas of scholarship that could have enriched his analysis. For example, his focus on the crucial role played by a small group of anti-death penalty litigators would have been enhanced by considering academic works on “cause lawyering” (Sarat and Scheingold 2006). Similarly, his focus on transnational trends in death penalty jurisprudence may have been strengthened by considering theories about “how claims spread” (Best 2001). And his focus on discretion in criminal sentencing might have been improved by paying more attention to the critical role that prosecutors play in death penalty systems (Hor 2013). But if this book does not explain everything about the global decline of the mandatory death penalty, it does provide the most persuasive and comprehensive account that can be found. It is an impressive achievement, and I hope it will be widely read. [*34]
Best, Joel, editor. 2001. HOW CLAIMS SPREAD: CROSS-NATIONAL DIFFUSION OF SOCIAL PROBLEMS. New York: Aldine de Gruyter.
Garland, David. 2005. “Capital Punishment and American Culture.” PUNISHMENT & SOCIETY Vol. 7, No.4 (October), pp. 347-376.
Garland, David. 2010. PECULIAR INSTITUTION: AMERICA’S DEATH PENALTY IN AN AGE OF ABOLITION. Cambridge, MA: The Belknap Press of Harvard University Press.
Hor, Michael. 2013. “Singapore’s Death Penalty: The Beginning of the End?” In Roger Hood and Surya Deva, editors. CONFRONTING CAPITAL PUNISHMENT IN ASIA: HUMAN RIGHTS, POLITICS, AND PUBLIC OPINION. New York: Oxford University Press, pp. 141-167.
Johnson, David T., and Franklin E. Zimring. 2009. THE NEXT FRONTIER: NATIONAL DEVELOPMENT, POLITICAL CHANGE, AND THE DEATH PENALTY IN ASIA. New York: Oxford University Press.
Sarat, Austin, and Stuart Scheingold, editors. 2006. CAUSE LAWYERS AND SOCIAL MOVEMENts. Palo Alto, CA: Stanford University Press.
GREGG V. GEORGIA, 428 U.S. 153 (1976).
FURMAN V. GEORGIA, 408 U.S. 238 (1972).
STANISLAUS ROBERTS V. LOUISIANA, 431 U.S. 633 (1976).
WOODSON V. NORTH CAROLINA, 428 U.S. 280 (1976).
© Copyright 2014 by the author, David T. Johnson.