The Global Decline of the Mandatory Death Penalty
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THE GLOBAL DECLINE OF THE MANDATORY DEATH PENALTY 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. Novak provides a thorough comparative study of the movement away from the mandatory death penalty towards discretionary sentencing in Commonwealth countries, about which we know little. While much of the book deals with contemporary jurisprudence, legal analysis is discussed within an historical and sociological context that is informative and engaging. Carolyn Hoyle, University of Oxford, UK Professor Novak has made an enormous contribution to the eventual abolition of the death penalty, in an incisive study of one of the more insidious aspects of it: its mandatory nature in many states that still retain it. The rationale for the prohibition of mandatory sentences to death—so ably explained in these pages and famously embraced by the US Supreme Court in Woodson v. North Carolina—is quickly establishing itself as a rule of international human rights law. Juan E. Mendez, Washington College of Law, USA Even after formal abolition of the death penalty in the United Kingdom in the 1960s, the toxic legacy of mandatory execution was a threat to penal justice and human rights in many nations tied to the common law tradition. This book tells the story of the litigation and advocacy that has removed the ugly shadow of mandatory capital punishment from most common law nations. Franklin E. Zimring, University of California, Berkeley, USA To Dr. Alexandros Petersen The Global Decline of the Mandatory Death Penalty Constitutional Jurisprudence and Legislative Reform in Africa, Asia, and the Caribbean ANDREW NOVAK American University Washington College of Law, USA © Andrew Novak 2014 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Andrew Novak has asserted his right under the Copyright, Designs and Patents Act, 1988, to be identified as the author of this work. Published by Ashgate Publishing Limited Ashgate Publishing Company Wey Court East 110 Cherry Street Union Road Suite 3–1 Farnham Burlington, VT 05401–3818 Surrey, GU9 7PT USA England www.ashgate.com British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library The Library of Congress has cataloged the printed edition as follows: Novak, Andrew. The global decline of the mandatory death penalty : constitutional jurisprudence and legislative reform in Africa, Asia, and the Caribbean / by Andrew Novak. pages cm. – (Law, Justice and Power) Includes bibliographical references and index. ISBN 978–1–4724–2325–2 (hardback) – ISBN 978–1–4724–2326–9 (ebook) – ISBN 978–1–4724–2327–6 (epub) 1. Capital punishment. I. Title. K5104.N68 2014 364.66–dc23 2013043986 ISBN 9781472423252 (hbk) ISBN 9781472423269 (ebk – PDF) ISBN 9781472423276 (ebk – ePUB) V Printed in the United Kingdom by Henry Ling Limited, at the Dorset Press, Dorchester, DT1 1HD Contents A Note on Sources vii About the Author ix Acknowledgments xi 1 Introduction: The Mandatory Death Penalty in Historical and Comparative Perspective 1 2 An Excessive and Arbitrary Punishment: The Mandatory Death Penalty and Discretion in the United States of America 9 3 Restricting the Death Penalty to the “Rarest of the Rare”: The Origins of a Discretionary Death Penalty in India and Bangladesh 31 4 A Successful Experiment: The Abolition of the Mandatory Death Penalty in the Commonwealth Caribbean 47 5 The Holdouts: The Survival of the Mandatory Death Penalty in Malaysia and Singapore 73 6 The New Frontier: Constitutional Challenges to the Mandatory Death Penalty in Sub-Saharan Africa 99 7 The Doctrine of Extenuating Circumstances:The Rise of Judicial Sentencing Discretion in Southern Africa 125 8 Conclusion: After the Mandatory Death Penalty 163 Index 169 Table of Authorities 177 This page has been left blank intentionally A Note on Sources This book cites to case law in a wide variety of jurisdictions, each with its own peculiarities as to citation format and case reporting. While the book generally uses the logic of The Bluebook: A Uniform System of Citation, which prefers print reporter citations to medium- neutral citations, inevitably some variation exists as not all jurisdictions regularly publish court decisions.1 In order of preference, the book cites to print reporters, medium-neutral citations, docket numbers with identifying features of the case, and finally to internet citations. Print reporters are organized by volume and page number with the abbreviation for the reporter series. Medium-neutral citations instead are organized by year, a code for the court issuing the decision, and the sequential number of the decision as issued that year. Where a case or docket number must be used, citation is made to the full case name and any identifying information including the full date. In some jurisdictions, first names are used in case citations. This may be because of naming conventions in that jurisdiction (such as where the family name precedes the given name) or, alternatively, because some last names are extremely common. Because the Bluebook does not comprehensively include all of the world’s jurisdictions, the following additional abbreviations for print reporter and medium- neutral citations are used in this book: Print Reporter Abbreviations A.C. Appeals Cases (United Kingdom) A.H.R.L.R. African Human Rights Law Reports A.I.R. All India Reports All N.L.R. All Nigeria Law Reports All S.A. All South African Law Reports B.L.C. Bangladesh Law Chronicles B.L.D. Bangladesh Legal Decisions Bots.L.R. Botswana Law Reports Bz.L.R. Belize Law Reports C.C.C. Canadian Criminal Cases D.L.R. Dhaka Law Reports (Bangladesh) E.A.L.R. East African Law Reports E.H.R.R. European Human Rights Reports E.L.R. Eastern Districts Local Law Reports (South Africa) G.L.R. Ghana Law Reports H.K.C.F.A.R. Hong Kong Court of Final Appeal Reports K.L.R. Kenya Law Reports L.A.C. Lesotho Appeals Cases 1 See THE BLUEBOOK: A UNIFORM SYSTEM OF CItatION (Columbia Law Review Ass’n et al. eds., 19th ed. 2010). viii The Global Decline of the Mandatory Death Penalty L.L.R.-L.B. Lesotho Law Reports and Legal Bulletin L.R.C. Law Reports of the Commonwealth M.L.J. Malaya Law Journal O.P.D. Orange Free State Provincial Division Law Reports (South Africa) P.N.G.L.R. Papua New Guinea Law Reports R.L.R. Rhodesian Law Reports S.A. South African Law Reports S.A.C.R. South African Criminal Law Reports S.C.C. Supreme Court Cases (India) S.C.G.L.R. Supreme Court of Ghana Law Reports S.C.R. (India) Supreme Court Reports (India) S.C.R. (Can.) Supreme Court Reports (Canada) S.L.R. Singapore Law Reports Sri L.R. Sri Lankan Reports T.L.R. Tanzania Law Reports W.I.R. West Indies Reports W.L.R. Weekly Law Reports (England) Zam.L.R. Zambia Law Reports Zim.L.R. Zimbabwe Law Reports Court Abbreviations for Medium-Neutral Citations BNHC High Court of Brunei Darussalam BWCA Botswana Court of Appeal BWHC Botswana High Court CCJ Caribbean Court of Justice HKCA Hong Kong Court of Appeal HKCFI Hong Kong Court of First Instance LSCA Lesotho Court of Appeal LSHC Lesotho High Court MWHC Malawi High Court MYFC Malaysia Federal Court MYSSHC Malaysia High Court of Sabah and Sarawak NASC Namibia Supreme Court PGSC Papua New Guinea Supreme Court SGCA Singapore Court of Appeal SZCA Swaziland Court of Appeal SZHC Swaziland High Court UGCC Uganda Constitutional Court UGHC Uganda High Court UGSC Uganda Supreme Court UKPC Judicial Committee of the Privy Council ZMSC Zambia Supreme Court ZWHHC Zimbabwe High Court in Harare ZWSC Zimbabwe Supreme Court About the Author Andrew Novak is an adjunct professor of African law at American University Washington College of Law and an adjunct professor of criminology, law, and society at George Mason University, where he teaches international and comparative criminal justice. He received a Master of Science in African Politics from the London School of Oriental and African Studies and a Juris Doctor from Boston University School of Law. His articles on the death penalty in Sub-Saharan Africa have appeared in the Suffolk University Law Review, Loyola Journal of Public Interest Law, Richmond Journal of Global Law and Business, Indiana International and Comparative Law Review, Boston University International Law Journal, and the Cardozo Journal of Law, Ethics, and Public Policy among others. This page has been left blank intentionally Acknowledgments Research on this book has taken place across three continents over six years.