Mandatory Death Penalty
There are at least 29 countries that maintain a “mandatory” death penalty for specified offenses. Those countries are: Afghanistan, Brunei, Congo, Equatorial Guinea, Guinea, Guyana, Iran, Jordan, Kuwait, Libya, Madagascar, Malaysia, Mauritania, Myanmar, Niger, Nigeria, Pakistan, Palestinian Authority, Qatar, Saudi Arabia, Singapore, Sri Lanka, Sudan, Syria, Tanzania, Trinidad, United Arab Emirates, Yemen and Zambia. A mandatory sentencing scheme is one where the imposition of a death sentence is automatic upon conviction of a crime. The court (or other sentencing authority) retains no discretion to take into account the facts of the offense or the characteristics of each individual offender; instead, each offender is sentenced to death regardless of any mitigating circumstances that may apply. For instance, in countries that have the mandatory death penalty for drug trafficking, a court would not be permitted to consider a defendant’s lack of criminal record or the desperate circumstances that may have contributed to his decision to traffic in narcotics before imposing sentence.
In an additional eight countries (Barbados, Botswana, Ghana, Kenya, Laos, the Maldives, Somalia, and South Sudan), our research indicates that the mandatory death penalty may be authorized under some circumstances. In some of these countries, such as Kenya, it seems clear that the mandatory death penalty for all offenses is unconstitutional, but the courts have not yet answered this question definitively. In addition, Botswana, Lesotho, and Zimbabwe have adopted legislation that mandates the imposition of a death sentence unless extenuating circumstances apply. While this may restrict the courts’ review of mitigating evidence, we do not consider the application of the death penalty pursuant to these laws to be “mandatory” since the courts are free to consider at least some mitigating circumstances. (Botswana also appears to provide for the mandatory death penalty for the crime of piracy, without consideration of extenuating circumstances).
The mandatory death penalty is on the decline, largely as a result of judicial challenges to its application. Since 2000, at least eighteen nations have discarded the mandatory death penalty. National tribunals in the Americas, India, and Sub-Saharan Africa have concluded that the mandatory death penalty is unconstitutionally arbitrary and/or inhumane, and some have determined that it violates the right to life, the right to due process, and separation of powers principles.
In 1976, the United States Supreme Court was one of the first courts to strike down the mandatory death penalty, holding that the practice was both arbitrary and inhumane in violation of the Eighth Amendment to the U.S. Constitution. Woodson v. North Carolina, 428 U.S. 280 (1976). The Court emphasized that “the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense” during capital sentencing. Id. at 304. In 1983, India’s Supreme Court likewise held that the mandatory death sentence was unconstitutional. Mithu v. State of Punjab, 1983 SCR (2) 690, Supreme Court of India, 1983. The Indian court stressed that “[t]he legislature cannot make relevant circumstances irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death.” Id. at 704. The gravity of an offense “furnishes the guideline for punishment,” and if applied without regard to the circumstances of the offense and offender, the death penalty is irrational. Id. at 704-705.
Beginning in 2000, a series of cases decided by the Judicial Committee of the Privy Council (JCPC) and the Eastern Caribbean Court of Appeal struck down the mandatory death penalty in a number of Caribbean countries; the death penalty was repealed by statute in others. As a result, the only Caribbean country that retains the mandatory death penalty is Trinidad and Tobago. Three African countries – Uganda, Malawi and Kenya – have likewise rejected the mandatory death penalty, albeit for slightly different reasons. In Malawi, the High Court struck down the mandatory death penalty as unconstitutional because, as a disproportionate penalty, it results in inhumane treatment, and because, as an unreviewable sentence, it violates the rights to a fair trial and access to justice. Kafantayeni v. Malawi, Constitutional Case No. 12 of 2005, High Court of Malawi, Apr. 27, 2007. In Uganda, the Supreme Court found that prohibiting discretion when life is on the line violates equal protection, because it indiscriminately treats all serious crimes or offenders as equally grave or culpable, and because it discriminates between death-eligible defendants and non-death eligible defendants, who are granted the right to present mitigating factors in their defense. Furthermore, the court found that the mandatory death penalty violates the principle of the separation of powers, by allowing Parliament to tie the hands of the judiciary in executing its function to administer justice. Attorney General v. Kigula, Criminal Appeal No. 3 of 2006, Supreme Court of Uganda, Jan. 21, 2009 (reviewing and confirming Kigula v. Attorney General, Constitutional Petition No. 6 of 2003, Constitutional Court of Uganda, Jun. 10, 2005). The impact of international law and of the momentum created by this line of cases is particularly clear in Kenya, where the Court of Appeal struck down the mandatory death penalty on the grounds that it was inhumane and violated the right to a fair trial, ultimately because of its undiscerning nature. Mutiso v. Republic, paras. 33-34, 36, Criminal Appeal No. 17 of 2008, Ct. of Appeal of Kenya, Jul. 30, 2010. The Court of Appeal cited at length from the reasoning in Kigula and the Privy Council’s Caribbean cases of Reyes and Hughes, observing that the laws analyzed in these decisions were “largely influenced by, and in some cases lifted word for word from international instruments which Kenya has ratified.” Id. at para. 32.
International tribunals have likewise condemned the mandatory death penalty. In a series of cases decided in 2000 and 2001, the Inter-American Commission on Human Rights found that the mandatory death penalty violated the right to life, the right to humane treatment or punishment, and the right to a fair trial. See Baptiste v. Grenada, Inter-American Comm. H.R., Report No. 38/00 (2000); McKenzie v. Jamaica, Case 12.023, Inter-American Comm. H.R., Report No. 41/00 (2000); Knights v. Grenada, Case 12.028, Inter-American Comm. H.R., Report No. 47/01 (2001); Edwards v. Bahamas, Case 12.067, Inter-Am. Comm. H.R., Report No. 4801 (2001). In Boyce v. Barbados, the Inter-American Court on Human Rights affirmed that laws that prohibit individualized sentencing are inherently arbitrary: “A lawfully sanctioned mandatory sentence of death may be arbitrary where the law fails to distinguish the possibility of different degrees of culpability of the offender and fails to individually consider the particular circumstances of the crime.” Boyce v. Barbados, Ser. C No. 169, paras. 57-63, Inter-American Court of Human Rights, Nov. 20, 2007. In Thompson v. St. Vincent and the Grenadines, the Human Rights Committee reached the same conclusion. Communication No. 806/1998, U.N. CCPR Human Rights Committee, U.N. Doc. CCPR/C/70/D/806/1998, Dec. 5, 2000.) And in Interights (Bosch) v. Botswana, the African Court on Human and People’s Rights recognized that courts were required to consider both the circumstances of the offense and the characteristics of the offender before imposing a death sentence. Communication 240/2001, African Court on Human and Peoples’ Rights, Nov. 2003.
A few countries, such as Singapore and Malaysia, have continued to uphold the mandatory death penalty in the face of repeated constitutional challenges. Singapore’s Court of Appeal has rejected arguments that the mandatory death penalty is unconstitutional on the basis that it bears a rational relation to the social objective of reducing crime and deterring would-be offenders. See, e.g., Yong Vui Kong v. Public Prosecutor, Criminal Appeal No. 13 of 2008, Court of Appeal of Singapore, May 14, 2010.
Balson v. State, Appeal No. 26 of 2004, Judicial Committee of the Privy Council, Feb. 2, 2005.
Barry v. Queen, Criminal Appeals No. 5, 9 & 10 if 2004, ECSC Court of Appeal, May 14, 2007.
Bowe and Davis v. The Queen, Appeal No. 44 of 2005, Judicial Committee of the Privy Council, 2006.
Boyce v. Barbados, Ser. C 169, Inter-American Court of Human Rights, Nov. 20, 2007.
Cadogan v. Barbados, Ser. C No. 204, Inter-American Court of Human Rights, Sept. 24, 2009.
Fox v. The Queen, Privy Council Appeal no. 66 of 2000, Judicial Committee of the Privy Council, 2002.
Hughes and Spence v. Queen, Appeals No. 14 of 1997 and 20 of 1998, ECSC Court of Appeals, Apr. 2, 2001, affirmed by Queen v. Hughes, Appeal No. 91 of 2001, Mar. 11, 2002.
Kafantayeni and Others v. Attorney General, Constitutional Case 12 of 2005, High Court, 2007.
Lambert Watson v. The Queen, Appeal No. 36 of 2003, Judicial Committee of the Privy Council, Jul. 7, 2004.
Mithu v. State of Punjab, 1983 SCR(2) 690, Supreme Court of India, 1983.
Mutiso v. Republic, Criminal Appeal No. 17 of 2008, Court of Appeal at Mombasa, Jul. 30, 2010.
Raxcacó-Reyes v. Guatemala, Series C No. 133, Inter-Am. Ct. of Human Rights, Sep. 15, 2005.
Reyes v. The Queen, 2 App. Cas. 235 (P.C.), Judicial committee of the Privy Council, 2002.
Susan Kigula & 416 Others, Constitutional Petition No. 6 of 2003, Constitutional Court of Uganda at Kampala, Jun. 10, 2005, affirmed by Attorney General v. Susan Kigula & 417 Others, Constitutional Appeal No. 03 of 2006, Supreme Court of Uganda at Mengo, Jan. 21, 2009.
Trimmingham v. Queen, Criminal Appeal No. 32 of 2004, ECSC Ct. of Appeal, Oct. 13, 2005.
Woodson v. North Carolina, 428 U.S. 280 (1976).
Roger Hood & Florence Seemungal, A Penalty Without Legitimacy: The Mandatory Death Penalty in Trinidad and Tobago, http://www.deathpenaltyproject.org/assets/7/original/09.08.10_Trinidad_Publication.pdf?1259080068, Mar. 7, 2009.
Saul Lehrfreund, International Legal Trends and the Mandatory Death Penalty in the Commonwealth Caribbean, Oxford University Commonwealth Law Journal, Vol. 1, Issue 2 (Winter 2001).
Andrew Novak, The Decline of the Mandatory Death Penalty in Common Law Africa: Constitutional Challenges and Comparative Jurisprudence in Malawi and Uganda, Loyola Journal of Public Interest Law, Vol. 11, p. 19 (2009).
Andrew Novak, Guilty of Murder with Extenuating Circumtances: Transparency and the Mandatory Death Penalty in Botswana, Boston University International Law Journal, Vol. 27 p. 173 (2009).
Brian Tittemore, The Mandatory Death Penalty in the Commonwealth Caribbean and the Inter-American Human Rights System: An Evolution in the Development and Implementation of International Human Rights Protections,William & Mary Bill of Rights Journal, Vol. 13, Issue 2 (Dec. 2004).
Last updated on January 25, 2012