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

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

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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

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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.

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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

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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’

6.

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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human dignity should have in the American contest and implicitly suggested that dignity was, if not

an exclusively American value, a feature of the national identity of Americans and intended it in the

Kantian interpretation, that is it is a person’s inherent autonomy, integrity, and right to be respected

by the others, Government included. Furthermore, he made another interesting point: the respect and

recognition of the human dignity, as well as his protection, would have increased the amount of

credibility and the U.S. reputation internationally, because the principle had become a threshold

expectation among a lot of Nations. This is an evidence of role of the already discussed international

influence. Anyway, after Justice Murphy’s statement, other cases were used for the recognition of the

right of dignity, the most important being Trop v. Dulles (1958