Is There Such a Thing as “Future Dangerousness”? Examining Capital Sentencing Jurisprudence in India After Anil Anthony

2019 ◽  
Vol 22 (2) ◽  
pp. 200-222
Author(s):  
Megha Hemant Mehta
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
Burden Of Proof ◽  
The United States ◽  
Death Sentence ◽  
Capital Sentencing ◽  
Future Dangerousness ◽  
Supreme Court Of India ◽  
The Supreme Court

The Supreme Court of India in Bachan Singh v. State of Punjab, listed “future dangerousness” of the accused as one of the factors the court must consider when awarding the death sentence. The burden of proof lies on the State to prove the same. This standard has been inconsistently applied in Indian capital sentencing jurisprudence. In Anil Anthony, the most recent decision on this issue, the Supreme Court held that determination of future dangerousness cannot be based on the facts of the case. However, in earlier decisions such as Gurdev Singh, the court concluded that the brutality of the crime ruled out the possibility of reform. This article argues, drawing on a comparative analysis with the United States, that though future dangerousness is an inevitable “fact in issue” for judges, the evidence that may be adduced does not meet the standards required for the imposition of the death penalty. Thus, future dangerousness as a determining factor during sentencing is a ground for challenging the constitutionality of the death penalty itself. In the interim, Anil Anthony is a better standard to apply, as compared to both Bachan Singh and Gurdev Singh, in principle as well as in practice.

Penological Justifications as Sentencing Factors in Death Penalty Sentencing

2021 ◽  
pp. 227740172097285
Author(s):  
Anup Surendranath ◽  
Neetika Vishwanath ◽  
Preeti Pratishruti Dash
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
The Other ◽  
Death Sentence ◽  
Life Imprisonment ◽  
The Core ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The One ◽  
Core Framework

When the Supreme Court of India upheld the constitutionality of the death penalty in Bachan Singh v. State of Punjab in 1980, it also laid down a sentencing framework for subsequent sentencing courts, guiding them in deciding between life imprisonment and the death penalty. This framework, popularly known as the ‘rarest of rare’ framework, was focused on individualised punishment. However, subsequent judgments have strayed away from Bachan Singh’s core framework, and the use of penological justifications as sentencing factors has contributed significantly to this deviation. This article argues that it is not within the mandate of sentencing judges to invoke penological theories as separate sentencing factors in individual cases when deciding between life imprisonment and the death sentence. The article begins by distinguishing between the penological justifications used to retain the death penalty in Bachan Singh and those underlying the sentencing framework developed in the judgment. It then examines subsequent judgments to trace the manner in which the capital sentencing framework was shaped to be crime-centric through the use of penological ideas like ‘collective conscience’ and deterrence. Examining the implications of penological justifications occupying a dominant place in death penalty sentencing, the article examines the broader concerns about the lack of clarity with sentencing goals. The failure in individual cases to distinguish between penological justifications as sentencing factors determining punishment, on the one hand, and viewing them as consequences arising out of an individualised sentencing process, on the other, lies at the core of the critique in this article.

scholarly journals Forty Years of Death: The Past, Present, and Future of the Death Penalty in South Carolina (Still Arbitrary after All These Years)

2018 ◽  
Author(s):  
John H. Blume ◽  
Lyndsey S. Vann
Keyword(s):  
South Carolina ◽  
Supreme Court ◽  
Gender Bias ◽  
Death Penalty ◽  
Capital Punishment ◽  
The United States ◽  
The Past ◽  
The Supreme Court ◽  
And Gender ◽  
Looking Back

11 Duke Journal of Constitutional Law & Public Policy 183 (2016)Forty years ago, the Supreme Court of the United States deemed constitutional new death penalty laws intended to minimize the arbitrariness which led the Court to invalidate all capital sentencing statutes four years earlier in Furman v. Georgia. Over the last four decades the Court has — time and again — attempted to regulate the “machinery of death.” Looking back over the Court’s work, many observers, including two current Supreme Court justices, have questioned whether the modern death penalty has lived up to expectations set by the Court in the 1970s or if, despite 40 years of labor, the American death penalty continues to be administered in an unconstitutionally arbitrary manner. This Article presents data from South Carolina’s forty-year experiment with capital punishment and concludes that the administration of the death penalty in that state is still riddled with error and infected with racial and gender bias. It is — in short — still arbitrary after all these years. The authors maintain that the only true cure it to abolish South Carolina’s death penalty, although they do argue that lesser steps including additional safeguards and procedure may limit, but will not eliminate, some of the arbitrariness and bias which are present in the current imposition of South Carolina’s most extreme punishment.

Francis Karioko Muruatetu v. Republic

2018 ◽  
Vol 112 (4) ◽  
pp. 707-713
Author(s):  
Jacquelene Mwangi
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Death Penalty ◽  
Rule Of Law ◽  
Death Sentence ◽  
Bill Of Rights ◽  
The Rule Of Law ◽  
Trial Courts ◽  
The Supreme Court ◽  
Court Mandated

The decision of the Supreme Court of Kenya (Court) in Francis Karioko Muruatetu and Another v. Republic (Muruatetu), finding the mandatory nature of the death penalty unconstitutional, represents not only a victory for human rights in Africa but also the transformative capacity of contemporary constitutions in Africa and the growing assertiveness of African judiciaries. In the judgment, the Court held that the mandatory death penalty is “out of sync with the progressive Bill of Rights” in Kenya's 2010 Constitution (para. 64) and an affront to the rule of law. The Court also relied on global death penalty jurisprudence to find the mandatory death sentence “harsh, unjust and unfair” (para. 48). Consequently, the Court mandated that all trial courts conduct a pre-sentencing hearing to determine whether the death penalty is deserved. The Court's judgment could spell the end of the mandatory death penalty in Kenya after almost 120 years on the statute books.

Freedom of Communication in the US and Europe

ICL Journal ◽  
2013 ◽  
Vol 7 (2) ◽  
Author(s):  
Pedro Tenorio
Keyword(s):  
United States ◽  
Supreme Court ◽  
Freedom Of Expression ◽  
Burden Of Proof ◽  
Freedom Of Speech ◽  
The United States ◽  
Constitutional Court ◽  
The Press ◽  
The Supreme Court ◽  
The Us

AbstractThis paper compares the freedom of communication in the jurisprudence of the Supreme Court of the United States and the European Court of Human Rights, departing from the judgments of the Supreme Court of the United States. It is noted that there are differences, as specified herein. Regulatory texts invite to speak of two distinct models, though this may be a far-fetched statement. This paper makes the following concluding remarks: 1) There are many concepts of freedom of expression that are compatible with democracy; the one derived from the Sullivan Judgment in the US (and in Europe from the Lingens Judgment) is not the only one, although it is currently considered the most consist­ent with democracy. This point is not discussed here. 2) Major changes sometimes occur through seemingly small details. In this sense, the shift of the burden of proof in defama­tion cases (Sullivan) has created an earthquake in the legal regime governing the press. The Sullivan doctrine can be summarized as follows: first, errors are inevitable, as freedom of speech requires ‘breathing room’; second, the malice of those accused of defamation must be proven; third, it is necessary to prove the lack of veracity of the slanderer. This doctrine allows the press to play its role as the watchdog of freedom. 3) In Spain, the press also appears to play this role, thus requiring us to ask whether there is, or ever was, a Sullivan Judgment in Spanish jurisprudence. We tend to attribute the privileged position of the press in Spain to the fact that the Constitutional Court has given preferential consid­eration to freedom of speech when it is in conflict with honor, intimacy and self-image privacy. This preference is justified by its connection to democracy. Since the judgment of the Spanish Constitutional Court (STC hereafter) 6/1981 of 16 March, the Spanish Consti­tutional Court has stressed the importance of freedom of information for democracy, and since the STC 159/1986 of 16 December, the Constitutional Court has suggested the pref­erential position of freedom of expression. However, the incorporation of the Sullivan doc­trine into the Spanish system occurred through STC 6/1988 of 21 January, almost ten years after the passage of the Constitution into law.

scholarly journals Litigating in the Shadow of Innocence

2006 ◽  
Vol 68 (1) ◽  
Author(s):  
Lawrence C. Marshall
Keyword(s):  
United States ◽  
Criminal Justice ◽  
Supreme Court ◽  
Criminal Justice System ◽  
Death Penalty ◽  
Capital Punishment ◽  
Justice System ◽  
The United States ◽  
The Supreme Court

In 1976, the Supreme Court of the United States, allowing optimism to trump experience, accepted various states’ assurances that new death penalty procedures the states had then recently adopted would avoid the vices that had led the Court to strike down the death penalty in 1972. Now, some thirty years later, a body of evidence has developed demonstrating that this experiment has failed—that the problems of arbitrariness, racism and propensity to error are endemic to the criminal justice system (particularly with regard to capital punishment) and cannot be cured by what Justice Blackmun called “tinker[ing] with the machinery of death.” Despite the Court’s best intentions, the death penalty procedures of the 1980s and 1990s and the first half of this decade reflect little if any significant improvement over the condemned pre-1972 systems.

scholarly journals KENNEDY, KENNEDY, AND THE EIGHTH AMENDMENT: “STILL IN SEARCH OF A UNIFYING PRINCIPLE”?

2011 ◽  
Vol 73 (1) ◽  
Author(s):  
Susan Raeker-Jordan
Keyword(s):  
Death Penalty ◽  
Capital Punishment ◽  
Historical Analysis ◽  
United States Supreme Court ◽  
Case Law ◽  
The United States ◽  
Death Sentence ◽  
Eighth Amendment ◽  
Analytical Tools

In Kennedy v. Louisiana, the United States Supreme Court held unconstitutional a state law that provided for the imposition of death upon one convicted of raping, but not killing or attempting to kill, a child. Justice Anthony Kennedy wrote the opinion for the Court, in which the majority, employing various analytical tools, brought its "own judgment" to bear on the excessiveness, and therefore the constitutionality, of the death sentence under the Eighth Amendment's Cruel and Unusual Punishments Clause. In emphasizing the Court's use of its own judgment in making the determination of excessiveness or disproportionality, Justice Kennedy and the majority risked the same public and internal dissenting Court criticisms that accompanied previous death penalty opinions in which Court majorities and pluralities similarly employed their own judgments. In the sharp divide over these issues, critics have accused those jurists of disguising their personal views of morality as the doctrinal application of their "own judgment" on these questions. This article argues that despite the criticisms and despite the Court's statement that at least some of its capital punishment case law is "still in search of a unifying principle," there is a precedential thread unifying and justifying the Court's own assessment of excessiveness under the Eighth Amendment. Historical analysis of the Court's Eighth Amendment statements shows that the clear thread in the cases is respect for human dignity and restraint, which plays out through the Amendment's proportionality guarantee. The Court's application of that guarantee against excessiveness has, time and again, invoked the Court's own judgment, based on  contemporary knowledge of punishment, of punishment's goals, and about decency in punishment. This article argues that that approach is sound and historically rooted, and that the Court should continue to apply its own judgment about decency, excessiveness, and proportionality, despite criticisms from the Court's conservative members about personal predilections.

The Decline of the Judicial Override

2019 ◽  
Vol 15 (1) ◽  
pp. 539-557
Author(s):  
Michael L. Radelet ◽  
G. Ben Cohen
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
State Courts ◽  
Death Sentence ◽  
Death Sentences ◽  
Eighth Amendment ◽  
The Supreme Court ◽  
National Consensus ◽  
Key Questions

Since 1972, the Supreme Court has experimented with regulation of the death penalty, seeking the illusive goals of consistency, reliability, and fairness. In this century, the court held that the Sixth Amendment prohibited judges from making findings necessary to impose a death sentence. Separately, the court held that the Eighth Amendment safeguarded evolving standards of decency as measured by national consensus. In this article, we discuss the role of judges in death determinations, identifying jurisdictions that initially (post 1972) allowed judge sentencing and naming the individuals who today remain under judge-imposed death sentences. The decisions guaranteeing a jury determination have so far been applied only to cases that have not undergone initial review in state courts. Key questions remain unresolved, including whether the evolving standards of decency permit the execution of more than 100 individuals who were condemned to death by judges without a jury's death verdict before implementation of the rules that now require unanimous jury votes.

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