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Comparative Constitutional Law - the use of the death penalty thorough the world. Appunti scolastici Premium

Appunti di Comparative Constitutional Law sui seguenti argomenti: the history of the humankind is characterized by an inner need felt by every human being: being part of something, a community, a society. The cavemen, ours oldest ancestors, can be taken as example: they, spontaneously, in every part of the Earth and without any connections, began to aggregate themselves in small communities.

Esame di Comparative Constitutional Law docente Prof. G. Ferrari



State of Georgia v. Davis, 246 Ga. 761, 272 S.E.2.d 721 (1980).


Why such a change of course? There are several reasons that could be addressed to this issue. One

of the most important can be found analyzing the next case, that encompass one of the last

executions of the death penalty in 2011 and at the same time one of the most controversial one’s.

Troy Anthony Davis was born the Ninth of October 1968 in Savannah, Georgia. His father was a

Korean War Veteran Sheriff’s Deputy that left when David was very young; his mother was a

hospital worker. He had also a younger sister that was unfortunately afflicted by a rare illness that

left her paralyzed from the neck down. He spent most of his childhood taking care of his family.

Until, the fateful ninetieth of August, 1989, when an off-duty Savannah police Officer, Mark Allen

MacPhail, was shot and killed, while was working security for a Burger King. He was shot twice as

he rushed to the aid of a homeless man, Larry Young, who was being harassed and beaten. Once the

notice had been spread, dozens of officers combed the scene, searching for evidence that remained

elusive: no murder weapon and no DNA were found. Just two .38 caliber bullets casing, and vague

descriptions of a young black man in a white t-shirt who nobody recognized, made by some

witnesses, followed by a later-in-night confession made by Sylvester "Red" Coles, asserting that he

was the one who began the fight with the homeless man but that Troy was the one who shot and

killed the Police Officer. Almost instantaneously, "Wanted" posters went up all over Savannah,

portraying Troy Davis as a "cop killer". This is the beginning of the story that, after almost

twenty-one years of troubled process, will have his death as epilogue. After a pre-trial proceeding,

where he was found guilty also of another murder occurred sometime before the murder of MacPhail

and for assaulting Larry Young, he was brought to trial, in August 1991, where a Chatham County

jury sentenced his guiltiness and recommended for the death penalty, even though the murderer’s

weapon was never found, nor DNA’s match. The verdict was, for the most, due to seven


eyewitnesses called by the prosecution and two witnesses to whom Davis was claimed to have

confessed the murder. After the trial, in 1992, the first request for a new trial was denied and, in

1993, Georgia's Supreme Court upholds the conviction and the sentence. Subsequently, Davis'

lawyers filed an Appeal with the US Federal District Court, in 2001, with claims that key witnesses

at 1991 trial had recanted or backed off their testimony, some of them alleging had been coerced by

law enforcement personnel and implicated Sylvester "Red" Coles, who Davis contended was the

actual triggerman. In 2004, a Federal Judge in Savannah denied Habeas Corpus relief to him and

rejected all the other claims, as ineffective defense counsel, prosecutorial misconduct and unfair jury

selection, and in 2005 was set the first date of execution: the seventieth of July 2007. In September

2006 the 11th Circuit Court in Atlanta upheld this decision on Appeal saying that Davis failed to

substantively prove his innocence or show his original trial was constitutionally unfair. On the

sixteenth of July, one day before the date of execution, in a letter from his U.S. envoy, Pope Benedict

XVI noted problems with the evidence and asked Gov. Sonny Perdue to spare Davis' life, followed

by an appeal by Nobel Peace Prize winner Archbishop Desmond Tutu requesting a review of Troy’s

case. The same day, the Georgia State Board of Pardons and Paroles granted a 90-day stay. In August

2007, the Georgia Supreme Court granted Davis a discretionary Appeal for a new trial on the basis of

mistaken identity. But, in March 2008, by a 4-3 vote, the Georgia Supreme Court upheld Davis' death

sentence, rejecting his request for a hearing. In July 2008, Davis's lawyers filed a petition for a writ

of certiorari in the U.S. Supreme Court, seeking review of the Georgia Supreme Court decision and

arguing that the Eighth Amendment creates a substantive right of the innocent not to be executed.

However, the second execution date was scheduled for September 23, 2008, before the United States

Supreme Court decided whether to take up Davis's case. Moreover, the Georgia Supreme Court

refused to grant a stay of execution and the Board of Pardons and Paroles denied clemency, the last

decision condemned by Amnesty International and by the former President and Georgia Governor

Jimmy Carter that released a public letter in which he stated: "Executing Troy Davis without a real


examination of potentially exonerating evidence risks taking the life of an innocent man and would

be a grave miscarriage of justice". On September 23, 2008, the US Supreme Court issued a last

minute emergency stay less than two hours before Davis was due to be put to death. On October 14,

2008, the Supreme Court declined to hear Davis's petition and the third execution date was set for

October 27, 2008. On October 21, 2008, Davis's lawyers requested an emergency stay of the pending

execution, and three days later the 11th Circuit Court of Appeals issued a stay of execution to

consider a newly-filed federal Habeas petition. This time, beside the petition with 140,000 signatures

presented to the State Board of Pardons and Paroles, an appeal form the commutation of the sentence

was claimed by the European Union. Remaining useless the external appeals, oral arguments were

heard by a three-judge panel on December 9, 2008, in Atlanta and on April 16, 2009, the panel

denied Davis's application by a 2–1 majority. The two majority Judges rejected the petition, stating

that Davis's claims having been reviewed and rejected in the past, and that the recantations were not

persuasive, but the dissenting Judge expressed her belief that Davis might prove his innocence and

that it would have been wrong to execute him. After this decision, the 11th Circuit issued an order

extending the stay of execution for 30 days to allow Davis the opportunity to file the umpteenth

Habeas Corpus petition with the U.S. Supreme Court, requested on May 19, 2009. On August 17,

2009, the Supreme Court ordered the Savannah Federal District Court to receive testimony and make

findings of fact as to whether evidence that could not have been obtained at the time of trial clearly

would have established Davis' innocence. Between June 2010 and March 2011, the U.S. District

Judge William T. Moore Jr. convened hearing and heard two days of testimony and concluded with

the rejection of Davis’ claims, followed by the request of Appeal of Judge Moore’s ruling, declined

by the U.S. Supreme Court. On September 6, 2011, Georgia Department of Corrections set

September 21 as fourth and last execution date for Davis. A day before the execution, David faced

the last chance of salvation by requesting clemency to the Georgia Board of Pardons and Paroles that

was declined. The day of the execution the request for Appeal was also rejected by the Georgia


Supreme Court, putting the word end to the process. At 10:53 pm Davis’ execution began and he was

lastly declared dead at 11:08 pm.

In the end, Davis faced twenty-one year of conviction and hope for an eventual acquittal, after four

delayed execution dates. Guilty or not, no human being should be required to bear such a distress.

And, besides the final sentence, he, as all that have ever been and will be in his shoes, served a lot

more. Anyway, despite all that have been ruled in Coffin v. United States, (1895), stating the

‘presumption of innocence beyond any reasonable doubt’, that is the guiltiness of the alleged

criminal has to be proven by the prosecution so strongly that no reasonable person would have any

reasonable doubt about it, is that the case? Or, better, there will ever be a case in which no reasonable

doubt will be found left? It is axiomatic that the role of the Courts has to try to recreate the facts as

similar as possible to how it really happened, and there will always be some sort of doubt.

Italian’s version of Davis.


Using a comparative lens, now the case will be analyzed as if it had happened in another Country,

Italy. In Italy, the Constitution, approved on the Twenty-seventh of December 1947 and in force since

the First of January 1948, completely abolished the death penalty for all common military and civil

crimes during peacetime. In fact, the Article 27 expressly states its abolition and the presumption of

non-guiltiness: “. . . A defendant shall be considered not guilty until a final sentence has been

passed . . . Punishments may not be inhuman and shall aim at re-educating the convicted. Death

penalty is prohibited”. Moreover, the Article 575 of the Criminal Code establishes that “Whoever

causes the death of a human being is punishable by no less than twenty-one years in prison”.

Twenty-one years, then, will be the starting-point that the Italian Criminal Court, assuming that he

had been found guilty, should address to him, to which has to be added or detracted aggravating or

mitigating circumstances. The Italian Criminal Code provide as aggravating circumstance the murder


of a Police Officer in-duty, that would have modified the penalty in life imprisonment, but in this

case it cannot be applied because MacPhail was off-duty when it was murder. The verdict then would

have gone from twenty-one years to, at worst, life imprisonment with possibility of parole, plus the

deprivation of some rights that comes with this type of penalty, as the voting right, the ability to

exercise any public office and the ability to be employed in any governmental or para-statal position.

If this is not enough, the Italian Prison System give the possibility to all the convicted to have a

reduction of 45 days per semester of served conviction, that is the ‘anticipated liberation’, to whom

have proved the continued participation to ‘Rehabilitation Programs’, irrespective of the type of

penalty, in fact this can even be applied to life imprisonment. Is the prevision of the Article 27 of the

Italian Constitution that makes this possible, stating that the penalty has to aim to the re-education of

the offender, and that would mean that the original twenty-one years of conviction will be reduced by

more than five years.

Historical comparative evolution of death penalty.


The difference between sixteen years of conviction and the death penalty for the same crime is really

huge, as the differences of the two Countries in dealing with that issue. For a better comprehension it

is vital to analyze the story of the birth of their Constitutions and the core of the problem.

As has already been seen, in Italy this issue has been solved largely with the entrance in force of the

Constitution expressly prohibiting the use of the death penalty as a possible punishment.

Nevertheless its history has not been less tormented. After the unification of the Kingdom of Italy,

the new Parliament faced a really important debate about the criminal unification of the former

fragmented States, with a strong participation of the abolitionist party, until, in the 1889, entered in

force the Unified Criminal Code (also known as ‘Zanardelli Code’, in the name of the at that time

Minister of the Justice) in which the death penalty were abolished. Then, in the 1926, it would have


been re-admitted in the Italian Criminal Legislation, by the First Minister-Fascist Dictator Benito

Mussolini, because of all the attempts of murder that he was facing at the time, against everyone

whom would have attempted to the life of the Royal Family, Governors and against the State. Still

under the Fascist Regime, the new Criminal Code of the 1930 increased the number of crimes

against the State and re-introduced the death penalty for some lesser common crime. Finally, the

Fascist Government was beaten during the World War II and one of the first acts of the new

Government was the abolition of the capital punishment for all the crime provided by the Criminal

Code, stated for good in the Constitution of the Italian Republic. If not enough, another feature that

will prevent any possibility of new adoption of the death penalty not only in Italy, but also in all the

European Union, is the signature of the 2003’s Protocol No. 13 to the ‘Convention for the Protection

of Human Rights and Fundamental Freedoms’ concerning the abolition of the death penalty in all

circumstances. With this signature, every States of the Union committed themselves to definitely

abolish the capital punishment for all the crimes. It is important so see how strictly the first three

Articles of the Protocol are: Article 1 stating ‘the death penalty shall be abolished. No one shall be

condemned to such penalty or executed’; Article 2 stating ‘No derogation from the provisions of this

Protocol shall be made under Article 15 of the Convention’; Article 3 reporting ‘No reservation may

be made under Article 57 of the Convention in respect of the provisions of this Protocol’. This

structure is a well-done guarantee that the death penalty will be done for good.

The capital punishment in the U.S. Constitution is mentioned neither in the Articles nor in any

Amendment. After the Declaration of Independence on the Fourth of July 1776 from the Kingdom of

Great Britain, the Continental Congress drafted the ‘Article of Confederation and Perpetual Union’,

finished in 1777 and ratified by all the thirteen States in the late 1781. It was nothing but an

agreement among the thirteen founding States as a ‘Confederation of Sovereign States’ establishing

the United States and providing the foundation of the Government, include the development of


Congress, and the rules that will govern among them. Nothing was said about any individual rights.

Lately, during the American War of Independence, all the States realized all the weaknesses and the

unworkableness of the new Government and a new Constitution was adopted in 1789, replacing the

Article of Confederation. The Constitution provided a stronger organization and established rules and

the separate powers of the three branches of the Federal Government and had been followed by the

first Ten Constitutional Amendment, known as ‘Bill of Rights’ adopted in 1791, finally regulating the

rights of individuals. Again, nothing has been expressly said about the use of the death penalty, but

the Eighth Amendment provided that no ‘cruel and unusual punishment’ should be inflicted in the

territory of the U.S. This is the stronger handhold that can be used, form the Constitution, by the

Supreme Court of the United States in order to decide toward the capital punishment. When the issue

had been arose, the Supreme Court that, with a 4 year memorandum between 1972 and 1976,

eventually upheld the ‘non unconstitutionality’ of the capital punishment: in Furman v. Georgia

(1972) the Court required for a degree of consistency in the application of the death penalty, striking

down Federal and State capital punishment laws permitting wide discretion in its application but, in

the later Gregg v. Georgia (1976) it has been re-accepted due to the new law enacted by Georgia, that

has since become the model for Statutes in death penalty States. An important view in helping to

define the ambiguous Clause entailed in the Eight Amendment has been given in Furman by the

Justice Brennan, in his concurring opinion, where he individuated four principles that have to be

respected in order to define a punishment as constitutional: - a punishment must not, by its severity,

be degrading to human dignity, - must not be inflicted in wholly arbitrary fashion, - must not be

clearly and totally rejected throughout society, - must not be patently unnecessary. Unfortunately, it

seems that this principles has been used in a different way that the Justice had in mind. In fact, after

1976, numerous states have reinstated capital punishment in their statutes.

Different constitutional approach.

5. 12

In analyzing the historical differences between the two States, lots are the peculiar things that had

brought to the different outcomes. Despite both of the Countries had dictatorship before the

independence; they focused in different issues in writing their constitution, beginning with the State

organization: U.S. is a Federal Constitutional Republic, while Italy is a Democratic Republic. The

Founders of the U.S. Constitution polarized their central attention in establishing the separation of

powers, dividing the Government into three branches in order to make it more functional and

creating a republic, which allows the right of the citizens of vote and elect their representatives. In

fact, all the articles of U.S. Constitution are concerned about the creation of a well-organized central

system that will provide the citizens all that they will need for. Only in a second time, through the

framing of the ‘Bills of Rights’, that were included in the Constitution two years later, the Founders

decided to set some rules that would have limited the powers of the Government and protected rights

and liberties of individuals, such as freedom of religion, speech, petition, due process and the

prohibition of excessive bail and cruel or unusual punishment. It never went further, listing all the

alleged right that this broad principles entailed, leaving all the work to the Supreme Court. In

opposition, the framer of the Italian Constitution, written all at once and composed by a hundred and

thirty-nine Articles, focused in first place in stating the rights, liberties and duties of the citizens: the

first Article state that the ‘sovereignty belongs to the people and is exercised by the people in the

forms and within the limits of the Constitution’; the second Article is a recognition and a guarantee

of protection of ‘the inviolable rights of the person, both as an individual and in the social groups

where human personality is expressed’; the third Article recognize that ‘all citizens have equal social

dignity and are equal before the law, without distinction of sex, race, language, religion, political

opinion, personal and social conditions’ and thereon all the specific rights are gathered in four

different group of rights and duties: civil, ethical and social, economic and political. The part

concerned with the ‘Organization of the Republic’, establishing the roles and the powers of

Parliament, President of the Republic, Government and Judicial Branch, begins after the fifty-fifth


Article. This opposite view of setting their respective Constitution may have been born by the

different achievements and popular needs that, after the War, the Founders regarded as being more

important. Anyway, is likely that this kind of distinction is the basis of the further structural and

substantial differences.

Role and importance of the ‘human dignity’


Entering in the specific, the key concept has to be individuated in the role of ‘human dignity’. In the

Italian Constitution, as has been previously seen, the principle of ‘equal human dignity’ is placed at

the very beginning and had been intended as the core principle that would have been used in reading

all the other Articles and had, therefore, became the core component of Constitutional jurisprudence.

Same can be told for other European States, such as Germany, France, Spain, Portugal, and Hungary

and even for extra-European States, as Argentina, Canada and South Africa. All of those Countries

used the concept of human dignity in order to strike down the use of the death penalty and it has been

possible given the role given to this principle by their Constitution. Moreover, at some Interstate

level, is important to see that the ‘Universal Declaration of Human Rights’, adopted in 1948 begins

with a clause referring to the "inherent dignity" of human beings, and its first Article states: ‘all

human beings are born free and equal in rights and dignity’. The U.S. Constitution does not

specifically refer to human dignity, but there are some concepts in the text, as the protections of the

due process clause and the ban of cruel and unusual punishment and other concepts developed by the

U.S. Supreme Court. The first time that the phrase ‘human dignity’ had been used was in a dissenting

opinion made by Justice Murphy in Korematsu v. United States (1944), and, in the later Yamashita v.

Steyr where he wrote: ‘If we are ever to develop an orderly international community based upon a

recognition of human dignity it is of the utmost importance that the necessary punishment of those

guilty of atrocities be as free as possible from the ugly stigma of revenge and vindictiveness’. In both

cases, concerning American enemies during the World War II, he arose the problem of the place that





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Corso di laurea: Corso di laurea in giurisprudenza
A.A.: 2013-2014

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher danyxx89 di informazioni apprese con la frequenza delle lezioni di Comparative Constitutional Law e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Bocconi - Unibocconi o del prof Ferrari Giuseppe Franco.

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