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

Comparative constitutional law (Prof. Borrows): The differences in approaching the regulation of the death penalty

Daniele Ruggiero

Summary:

• Introduction.
• State of Georgia v. Davis, 246 Ga. 761, 272 S.E.2.d 721 (1980).
• Italian’s version of Davis.
• Historical comparative evolution of death penalty.
• Different constitutional approach.
• Role and importance of the ‘human dignity’.
• Human dignity in other death penalty’s States users.
• Conclusion.

Introduction

From its very beginning, the history of humankind is characterized by an inner need felt by every human being: being part of something, a community, a society. The cavemen, our oldest ancestors, can be taken as an example: they, spontaneously, in every part of the Earth and without any connections, began to aggregate themselves in small communities. Why does it happen? As every inner need of humans, there is no absolute answer, but the self-preservation instinct can be taken as the leading reason.

Anyway, the more the time passed, the more civilized those communities became, until they developed into more sophisticated societies. The latter category entailed a more complex organization than the former, going beyond the division of the roles between children, males, females, and elders. In fact, the core of the new societies was the creation of an upper central organization that would take care of the community as a whole and that would represent the general will.

This can be easily reassumed in the main concept of the theory of the ‘social contract’, as Jean-Jacques Rousseau wrote in his masterpiece study, ‘Of The Social Contract, Or Principles of Political Right’ (1762): “The heart of the idea of the social contract may be stated simply: Each of us places his person and authority under the supreme direction of the general will, and the group receives each individual as an indivisible part of the whole...”.

This is the evolution that, eventually, had led to the concept of State and to the creation of the current ‘legal system’. It is proper with the use of this last tool that the State will express its leading role, showing how to reach and keep the ‘common good’, a process that will usually take into account what the majority of the citizen seek for, not leaving out some protection for the minorities.

Furthermore, in the latest centuries, all the wars and all the usurpation of powers brought to the birth of the most powerful representation of the ‘social contract’: the Constitution, in which it is usually specified how the State will work, the division of the powers, and the fundamental principles that will govern and that will be respected above all the others by everyone, State included.

One of the utmost achievements that the State has to aim for is the prevention of injuries. The citizens want to feel secure to live in the territory that is under the jurisdiction of the State they had given the power to reign on. In order to do that, the State has to specify what it is allowed to them to do and what is forbidden, also providing the right punishment for not respecting the law.

One branch of the legal system, the Criminal Law System for instance, is concerned about this issue and has been articulated in order to prevent crimes, sanctioning what is prohibited and relating a penalty for the prohibition. The formula used in this field is ‘whatever is not prohibited by the law, is legal’. In fact, you cannot be punished for a crime that has not been previously defined as a crime and be addressed to a penalty that has not been previously related to that crime.

There are several limits and goals that have to be taken into account in this sensitive sector. But the most peculiar and difficult part is defining the penalty that has to be addressed to the committed crime. The oldest rule that governed a large part of the history was what the ancient Roman aphorism ‘oculum pro oculo, dentem pro dente’, that is paying the same injury that has been caused.

Nowadays, the evolution of this concept guides to the theory of ‘retribution’, in which the penalty has to be proportionate and reasonable to the severity of the committed crime, taking into account all the circumstances and all the actual or predictable results of the offending behavior. Another important concept is the ‘marginal deterrence’, meaning that the more severe crimes have to be punished more strongly than the lesser crimes and that a series of crimes should be punished harder than a single crime of the same kind, in order to avoid the criminal’s benefits from committing additional crimes.

The worst and hardest penalty that a man can afford is the death penalty. The capital penalty, in fact, has always been used as the punishment for the ‘capital crimes’, the most despicable ones. But was the original ‘social contract’ intended to give the State the power to decide above the life and the death of their citizens? Probably it was in the past era, where the conception of justice and fairness and the acknowledgment of all the rights that had to be granted to all the individuals were more precarious than now.

Despite the fact that in some manner there has always been a disregard for this type of punishment throughout history, nowadays, this disregard becomes a true fight against it. Historically, one of the most important supporters of the abolition of the death penalty that contributed to the actual abolition in several European States was Cesare Beccaria. He argued in his famous book ‘On Crime and Punishment’ (1764) that capital punishment was neither useful as a deterrent nor was it necessary or ethically appropriate for the State to take the life of any of its citizens because it would have been a contradiction to prohibit an action that the State itself would eventually have repeated.

With the coming of the Constitutions, most of the current Countries have found that the primary reason why the death penalty should be abolished in the fundamental principles: in some Constitutions it has been expressly provided, in others it has been drawn out from other clauses, such as the right to live and the prohibition to inflict cruel and inhuman punishment, and in other cases it has been stated by the Supreme or Constitutional Court.

Today, based on the ‘2011 Report on the death penalty’ of Amnesty International, ninety-six States have abolished the death penalty for all the crimes, in nine it is still used for war crimes, thirty-five of them did not use it in the last ten years or have an international commitment to not execute, for a total of a hundred and forty Countries out of a hundred and ninety-eight. And, each year, the number is increasing. These are all evidences that the perception of the community, all over the world, toward the death penalty is changing and that sooner, probably, it will be banned in the entire world. Anyway, there are still States, 58 exactly, in which the final sentence is promptly still used.

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 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 guilt 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...