Guatemalan Decision Striking Down Death Penalty May Affect Other States

A recent decision by the Guatemalan Constitutional Court may have implications for the application of the death penalty in Texas and other states where juries may recommend death sentences upon a finding that the defendant is likely to be a danger in the future.

Art. 132 of the Guatemalan Penal Code provides (rough translation) that “A murderer shall be punished by imprisonment from 25 to 50 years, however the death penalty may be applied instead of the maximum term of imprisonment if the facts and circumstances of the offense, its commission and motives, reveal that the defendant is especially dangerous.”

In February 2016, the Guatemalan Constitutional Court held that this violated Article 17 of the Constitution, which provides: “Those actions or omissions that are not characterized as crimes or misdemeanors [falta] or sanctioned by a law preceding their perpetration are not punishable.” In essence, this prohibits ex post facto laws.

The court reasoned that a penalty linked to “hypothetical future conduct” is invalid. It also observed that the concept of “future dangerousness” stems from positivist beliefs that a person’s “dangerousness” is biologically determined and therefore insurmountable. The court condemns this as an archaic concept that is antithetical to modern conceptions of human rights, according to which sanctions must be imposed on the basis of what the offender has actually done, not on the basis of who he is.

The court also found that language in the penal code that provided for an alternative sentence of life without parole violated Article 19 of the constitution, which requires that the objective of any criminal punishment is the rehabilitation and social re-adaptation of the offender.

Presumably, in the wake of this decision, Guatemalan courts may no longer impose death sentences for murder unless and until the penal code is re-written.