A number of countries prohibit the application of the death penalty for individuals over a certain age either at the time of the crime’s commission or at the time of sentencing.
Of the ninety-three countries in the world that retain the death penalty, ten explicitly prohibit the execution of an individual that has reached a certain age. The age differs by country, and ranges from 60 (Guatemala) to 80 (Taiwan). For instance, Belarus prohibits the execution of individuals over 65 years of age, Sudan’s and South Sudan’s constitutions prohibit executing persons over the age of 70, Tajikistan prohibits the execution of individuals over the age of 63, and Zimbabwe prohibits the execution of individuals over the age of 70. China prohibits the imposition of the death penalty for persons over the age of 75 at the time of sentencing, with an exception for cases of murder committed with “exceptional cruelty.”
National legislation excluding the elderly from capital punishment also differs on the point at which age should be calculated for purposes of the exclusion. Most countries with an age exclusion consider age at the time of sentencing to be determinative (Belarus, China, Sudan, South Sudan, Tajikistan and Zimbabwe). In Russia, persons over 65 at the time of “adjudication” (which could mean conviction or sentencing) cannot be sentenced to death. Under the American Convention on Human Rights, however, capital punishment may not be imposed on persons over 70 at the time the offense was committed. There are also a number of countries for which we could not determine whether the death penalty is prohibited based on age at the time of the commission of the offense, or age at the time of conviction, sentencing or execution (for example Guatemala, Taiwan).
Given that in many countries, persons under a death sentence may spend long years in prison (see the article on Death Row Phenomenon), computing age at sentencing versus at commission can have significant consequences. Considering age at the time of commission implies that the elderly have a diminished capacity to understand and control their actions, or as one commentator put it when the elderly exception law was passed in China, the elderly have “deteriorating IQ and judgment.” Focusing on age at the time of sentencing, on the other hand, responds to different concerns. The most important of these is that the death penalty is unnecessary as a specific deterrent to elderly people, who are unlikely to commit another crime in their lifetime if they are spared. Finally, excluding the elderly from capital punishment expresses values of respect for the longevity of elderly people.
In addition to the 10 countries with elderly exclusions written into their legislation, three countries (Dominica, Grenada, and Jamaica) are signatories to the American Convention on Human Rights, and as such are prohibited from executing persons who were over 70 years of age at the time the crime was committed. This brings to 13 the total number of countries whose laws preclude the execution of elderly persons. Our research could not confirm, however, whether the ACHR signatories implemented the age exclusion mandated by the treaty.
Additionally, one country, Qatar, while not having a specific exception for the elderly, prohibits executing persons held under a sentence of death for 30 years. This may function in practice like an age exclusion for the elderly, but it is also akin to legal provisions which attempt to limit the creation of a “death row phenomenon” by prohibiting the execution of persons who have remained on death row for long periods of time.
Finally, in India, a defendant’s advanced age is listed as a mitigating factor that courts should consider when determining whether capital punishment should be imposed. It is likely that an elderly person’s age is considered in mitigation in other countries as well, even in the absence of specific legislation.
The American Convention on Human Rights is the only international instrument that specifically prohibits the execution of the elderly. Article 4(5) provides that “Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women.” Other international instruments, such as the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the African Charter do not contain similar restrictions.1
Allen v. Ornoski, 435 F.3d 946, 9th Cir., 2006. In Allen v. Ornosky, the 9th Circuit ruled that executing Clarence Ray Allen, who was 76 and suffering from a host of medical ailments, would not be a cruel and unusual punishment violation of the 8th amendment to the U.S Constitution. The U.S. Supreme Court declined to review the case.2
Beijing Review, Should the Death Penalty Have an Age Ceiling? http://www.bjreview.com.cn/print/txt/2010-09/26/content_300472_2.htm, Beijing Review.com.cn, Sep. 30, 2010 (on the debate surrounding the age-exception legislation in China).
Frédéric Mégret, The Human Rights of Older Persons: A Growing Challenge, Hum. Rts. L. Rev., Vol. 11, p. 37, 2011 (on the aging of death row populations).
Diego Rodriguez-Pinzon & Claudia Martin, The International Human Rights Status of Elderly Persons, Am. U. Intl. L. Rev., Vol. 18, p. 915, 2003.
Last updated on December 20, 2011.
1 Diego Rodriguez-Pinzon & Claudia Martin, The International Human Rights Status of Elderly Persons, pp. 922-923, Am. U. Intl. L. Rev., Vol. 18, p. 915, 2003.
2 Allen v. Ornosky, 546 U.S. 1136, U.S. Supreme Ct., 2006.