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Constitution of the US Death Penalty
In the twenty-first century, the United States have a remarkable policy on the law and practice of the death penalty concept. There is a continuing controversy about capital punishment because of the conflict between two inconsistent values, practices and traditions that can never coexist. Where practicing the death penalty is inconsistent with one fundamental tenet in the same time abolition of the system violates the beliefs of another cultural tradition.  The broad outlines of the criminal justice system are defined by the state and federal legislatures in the form of criminal or penal code such as Bill of Rights incorporated into the Constitution of the States in 1791 which provides different provisions on the death penalty through different amendments and are subject to review, revision and repeal by litigation to check their unconstitutionality over the fundamental rights of the individual.  The Fifth Amendment provides the requirement of due process of law for capital punishment. The fourteenth amendment contains the provision of “equal protection of the laws" and the eighth amendment provides for “cruel and unusual punishments".  Before these amendments, no serious approach was taken to challenge the constitutionality of the death penalty.  Only after these amendments the constitutional challenge has been mounted directly against the death penalty. 
The foremost implication that the Supreme Court considered the momentous question of the constitutionality of the death penalty came two years later, in the case of “Rudolph v. Alabama"  where the honourable Justice Mr. Goldberg questioned whether the death penalty was constitutionally permissible for the crime of rape. The views expressed in the case caught the attention of many opponents of the death penalty as a first step towards the restructuring of the death penalty provisions. subsequently, in 1967 the campaign regarding constitutionality broadened by securing a court order to suspend all executions in Florida, California and eventually in all the death penalty jurisdictions on the grounds that the death penalty system such as constitutionality of capital punishment for rape was effectively under the fundamental constitutional review by the federal courts. The initial challenges were wholly procedural, not only in regard to rape cases but also those sentenced to death for murder with reference to cases such as “Ralph v. Warden"  and “Witherspoon v. Illinois".  These cases set the phenomena for the momentous argument in 1971-72 over whether the death penalty violates the prohibition clause of “cruel and unusual punishments" of the Eighth amendment. In 1972, the California Supreme Court  considered the death penalty as a cruel or unusual punishment in violation of the state Constitution holding that it degrades and dehumanizes the individuals and society. 
Five months later, in “Furman v. Georgia,"  the Supreme Court considered the death penalty a violation of the Eighth and the Fourteenth amendments of the Constitution being “cruel and unusual punishment" and against the concept of “equal protection to all citizens under law."  In Georgia’s death penalty statute the Court ruled arbitrary sentencing could be negative consequence of the jury’s absolute discretion in imposing the death penalty which would further violate the “cruel and unusual" clause of the the Eighth Amendment.  Subsequently, in 1972, the Supreme Court declared forty death penalty statutes void, thereby commuting and suspending the death sentences of around six hundred death row inmates as existing statutes were no longer valid in the States.  Four years later, in 1976, when hundreds of 1972 death prisoners had been resentenced to life imprisonment, and most state legislatures had enacted new death penalty statutes in an effort to conform to the standards imposed by the Furman ruling, the Court faced the question “whether these statutes were constitutionally permissible."  Apart from these rulings, many other decisions as discussed in the following chapter played a vital rule in understanding and establishing the constitutionality of the death penalty in the United States.
3.2 Furman v. Georgia, 1972: the death penalty considered unconstitutional.
In the United States, death is the unique punishment, and the explanation for the uniqueness of death is its extreme severity.  To subject a person to unusually severe punishment is regarded as unacceptable by the society and a contradiction of humanity. Death is considered as an unusual severe punishment that is unusual in its pain, finality and its enormity. The decision to kill a human being is a clear denial of the executed person’s dignity and above all humanity. When compared to other punishments, the premeditated killing of convicted person is inimitably humiliating in all wits. 
In the landmark case of “Furman v. Georgia,"  the honourable jury analysed that the outstanding characteristic of the present practice of the death penalty in the United States was infrequent and unordinary punishment for any crime that requires a very clear non-arbitrary infliction and right to fair trial. Furthermore, it was also discussed that procedures in death cases, sanctions an arbitrary selection rather than resulting the execution in extreme cases. The court also held in “McGautha v. California"  that the right of the jury to decide whether to impose the death sentence or not is wholly unguided by standards governing that decision. Therefore, death penalty provisions and procedures are in this way not constructed to guard against the capricious selection of criminals for the implication of the death penalty. From the very beginning, the capital punishment has stirred acute public controversy.  The current rarity and progressive decline of the infliction of death demonstrates that society seriously questions the appropriateness of this unusual provision.
The United State’s principal emphasis is that death is an obligatory punishment because it acts as a deterrent to crime preventing capital offences much more efficiently than any other less harsh penalty. Proponents of this argument acknowledge that its legitimacy lies in the subsistence of the structure in which the death penalty is perpetually imposed. The present system does not satisfy this stipulation as a realistic individual contemplating a murder or rape is confronted with the least probability that he will be executed in the distant future. Moreover, the risk of death is remote and improbable.  The question is not whether death serves the supposed purposes of punishment and deterrence, but whether that serves more effectively than imprisonment or not. It is certainly doubtful that the infliction of death strengthens the community’s moral code. 
It can be argued that the punishment of death is unconstitutional and inconsistent with the principles of humanity, extreme severity, infrequency and public controversy. The verdict of “Furman v Georgia"  clearly demonstrates that non-arbitrarily inflicted, death is an unusually severe and degrading punishment as it violates the fundamental right of life.  Its rejection by contemporary social order is practically accepted stating that it does not in any way overrule the effectiveness of less severe punishment of imprisonment serving the concept of deterrence and keeping the criminal away from the society than that of capital punishment. 
3.3 The death penalty is not per se unconstitutional: Greeg v. Georgia 1976.
In the landmark case of “Greeg v. Georgia",  the Court reversed its earlier decision in 1976 in “Furman v. Georgia"  declaring the death penalty not unconstitutional and re-enacted the provision as constitutional and necessary punishment. The Georgia statute by a majority of seven to two declared the death penalty constitutional.  It retained capital punishment for six categories of crime i.e. murder, kidnapping for ransom or where the victim is harmed, robbery with arms, rape, incitement to rebellion or treason and hijacking of aircraft. In two other cases decided on the same day “Proffitt v. Florida"  and “Jurek v. Texas",  the Court gave its imprimatur to two other kinds of capital statutes. The decisions of these three cases settled the foreseeable future of the constitutionality of the death penalty in the United States declaring that it was not, per se, unconstitutional under the Eighth and Fourteenth Amendments. 
Georgia’s new death penalty statute proved to be a landmark step for most legislative re-enactments of the death penalty. There were three features that were paramount in the new Georgia’s system.  First was a two phase trial, wherein, the first phase was to settle the issue of the defendant’s guilt and the second was to settle the question of sentence of punishment. A statutory list of an “aggravating circumstances" and list of “mitigating circumstances" on the basis of which the jury would make its sentencing decision in each case was the second feature of the new death penalty statutes. The third feature was the automatic review of every death sentence and the underlying conviction by the state Supreme Court.  The new Georgia law also required the Supreme Court to evaluate each death sentence by proportionality review or with reference to what other Georgia trial courts were doing in other death penalty cases. 
The most discernible sign of society’s approval of capital punishment for murder is the legislative reaction to the pronouncement of the Furman’s case. The legislatures of at least 35 states enacted new death penalty statutes for at least some severe crimes resulting in the death of another person and making it mandatory for certain specified crimes.  It provides that the Eighth Amendment requires more than that a challenged punishment acceptable to contemporary society. The honourable Court also made it clear that the sanction imposed on the person should not be totally without penological justification that will result in the gratuitous infliction of suffering. 
It can be concluded that the statutory system of the death penalty that was re-enacted in the landmark case of “Gregg v. Georgia"  does not violate the constitutional provisions in any way keeping in view, that the death penalty serves two primary societal purposes, retaliation and preclusion of capital offences by impending criminals.  The concerns expressed in the case by the jury that the vigilantly drafted rulings that ensures that the sentencing authority is specified with sufficient evidence and supervision, the death penalty should be restricted from being inflicted in an irrational or erratic approach. 
3.4 Mandatory death penalties are unconstitutional: Woodson v. North Carolina 1976.
In “Woodson v. North Carolina",  decided on the same day as “Gregg v. Georgia",  declared some kinds of the death penalty statutes unconstitutional, thereby effectively putting limitations round the imposition and the future of capital punishment.  After considering the ruling of Furman in “State v. Waddell",  the Supreme Court of North Carolina held that the mandatory death penalty laws are valid. Following the Court’s decision, a new statute was enacted by the North Carolina General Assembly in 1974 making the death penalty mandatory for certain offences. 
The Court held in “Woodson v. North Carolina",  that the Eighth Amendment draws much of its implication from the developing principles of respect, civility and admiration for human rights. On the basis of this, the mandatory death penalty on conviction of murder was considered as unconstitutional. The state’s mandatory death penalty statutes cannot be applied constantly with the Eighth and the Fourteenth Amendments and constraints that the State’s authority to penalize the offender should be exercised within the restrictions of enlightened principles.  Its mandatory statutes provide no principle guidelines to the jury in its foreseeable implementation to settle down which offences should be punished with capital punishment. There is no provision to check the illogical and unreliable use of the authority through a re-evaluation of the death punishment. The shortcoming of exclusive deliberation of appropriate aspects of the traits and evidence of each convicted inmate before the implication of the death penalty upon the convicted lead to unconstitutionality of the death statues. 
It can be summarised that the consequent disparity in the want for consistency in the determination that death is the suitable retribution raises so many questions leading the mandatory provisions of the death penalty as unconstitutional. 
3.5 The death penalty for rape is unconstitutional: Coker v. Georgia 1977. 
In 1977, in “Coker v. Georgia"  five years after the verdict of “Furman v Georgia"  and a year after the decisions in “Gregg"  and “Woodson",  the Supreme Court ruled against the constitutionality of even a discretionary death penalty for rape. The Court came to the decision that as per the Eighth Amendment, a sentence of death is inconsistent and unwarranted penalty for the offence of rape as cruel and unusual punishment.  The legislative rejection of capital punishment for rape strongly confirms the judgement that death is indeed a disproportionate penalty. Under Georgia law, it is clearly mentioned that death may not be imposed for rape unless combined with some statutory aggravating circumstances like murder.  It was held that though rape deserves a serious punishment, but in terms of moral depravity and injury to the person or the public, it does not compare with murder and hence unconstitutional.  As the death punishment is a disproportionate punishment for rape on the account of the severity of the crime, it is cruel and unusual punishment within the sphere of the eighth Amendment even though it may measurably serve the legitimate ends of punishment.  The Court held that in the light of the legislative decisions in almost all of the states it would be complicated to uphold an argument that the capital punishment is an indispensable part of the State’s criminal justice system. 
3.6 Constitutional Interpretation and the Death Penalty.
In the complex legal system of the United States, to determine which method of legal interpretation is appropriate to constitutional law requires an explanation of the basic premises of the political theory of constitutional democracy.  One of the basic principles  to determine which form of interpretation is most consistent is “the inadequacy of strict constructionism."  The legal standards are often formulated without settling the questions regarding ambiguities and lacks explanatory support to justify its correct means of interpreting the constitution.  The second principle is “the political theory and the abstract intention approach," where judicial supremacy is based on basic human rights and powers are separated on the basis of the conception of law within its complex structure of representation. The general normative clauses derives their force from a larger political and moral culture which perceived the human rights embodied in the clauses as grounded in inviolable and enduring principles of justice.  The institutions of democratic rule reflects an attempt to design a complex system reflecting an idealized moral conception of people as free, rational and equal. 
3.7 The death penalty as a cruel and unusual punishment: The constitutional argument.
The death punishment is excessively severe punishment which is against humanity and fundamental rights of the individual. The Eighth Amendment clearly demonstrates that the death penalty is cruel and unusual punishment being inflicted on the convicted person.  The Constitution contains the provisions according to which even the persons convicted of the gravest crimes retain their fundamental rights of due process of law, equal protection of the laws and the right to hearing and fair trial. These rights are not forfeitable and cannot be waived and, therefore, violation of these principles will be a clear violation of the constitutional provisions. 
The principle of the quotidian experience which assures that the persons condemned by law to die for the crimes committed by them are not merely the living members of “homo sapiens" but are also persons capable of the full range of moral action and passion indigenous to moral creatures. Another argument which renders the death penalty as unconstitutional is the moral theory and the nature of the person.  These theories consider that the nature of the person itself changes over time on the basis of which it becomes clear that even the worst and most dangerous murderers are not suitable subjects for destruction by others.  No society has a right or authority to create and sustain any institution that violates and destroys the fundamental rights of its individuals in grave sense. Therefore, the flawing provisions of legal interpretation not only lead to bad history but also to an indigent conception of constitutional argument that the death penalty is most cruel and unusual punishment and hence unconstitutional. 
3.8 Habeas Corpus and Constitutional Controversies.
After the Supreme Court ruling in 1976 that capital punishment is not a violation of the constitution, a wide range of other constitutional challenges to the procedures of the new death penalty laws developed.  At the same time the writ of Habeas Corpus “the presenting of the culprit before the court and release of the convicted from the unlawful detention" gained national favour. Many litigations continues for years without any sign of coming to an end which severely violates the fundamental rights of the people and had sweeping effect on most of the death row inmates.  Since the decision of the “Furman",  hundreds of death penalty cases have appeared on the docket of the Supreme Court, leading to several significant decisions.  These rulings considered all the main aspects of the procedures in capital trials, from impaneling the jury to post-sentencing appeals. The lack of finality in state criminal proceedings and the abuse of the writ of habeas corpus required the Supreme Court to establish a statute putting limitations to the availability of such relief. The Supreme Court held in the case of “Felker v. Turpin" 1996,  that, although, the new laws require states to provide competent post-conviction counsel for the defence, still, the tighter standards for federal Habeas Corpus relief enacted by Congress in the Antiterrorism and Effective Death Penalty Act, 1996, which prevent the Supreme Court from reviewing a lower court order denying a prisoner’s second habeas petition, are not unconstitutional. 
3.9 International Human Rights Law and U.S. Death Penalty.
The human rights argument and the concept of arbitrariness clarifies that the death penalty proves unsuccessful to present any coherent, rational, principled pattern in support of the its constitutionality and deterrence to criminals. The provision of the death penalty is administered on the account of legally and morally irrelevant factors. To restrict the use of the death penalty provisions and provide a relief to death inmates keeping in view their fundamental rights, different international human rights laws and conventions were established. 
In 1948, the Universal Declaration of Human Rights affirmed under Article 3 that “everyone has the right to life" and that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment as per Article 5 of the declaration.  Article 2(1) of The European Convention on Human Rights, 1950 provides that every individual has the fundamental right to life. It provides that every individual has the right to live and the death penalty is only an exception for the lawful executions which are further restricted by Protocol 6 and 13 of the Convention. The court has a duty to refrain from unlawful killing, to investigate suspicious deaths and, in certain circumstances, a positive duty to prevent foreseeable loss of life.  The European Court of Human Rights stated in the case of “McCann et al. v. United Kingdom",  that article 2 of the Convention must be interpreted and applied to make its safeguards practical and effective.
In 2006 the European Commission introduced innovative controls to forbid and restrict the international trade in equipment that could be used for the death penalty, torture or other cruel, inhuman or degrading treatment or punishment, through Council Regulation (EC) No. 1236/2005.  On 29 November 2010, the UK Secretary of State for Business Innovation and Skills made a statement  to the High Court indicating that the UK Department for Business Innovation and Skills would issue an order under section 6 of the Export Control Act 2002 (ECA) controlling the export of sodium thiopental to the US. The Court considering the international human rights, accepted the plea and restricted the export of sodium thiopental to United States, a drug used in lethal injection for the execution of the criminals.  Such restriction can result in suspension of executions in United States safeguarding the right to life of the individuals and the abolition of the death penalty.
In 1950, “Geneva Convention  Relative to the treatment of the Prisoners of the war", provided for the fair trial of the prisoners under its Article 3, 87, 100, 101 and 107 that contains obligations for the fair treatment of Prisoners of War. 
The International Covenant on Civil and Political Rights, adopted in 1966 provided for the same safeguards under Article 6 and 7. Article 6.5 of the Covenant outlaws the execution of the juveniles, insane,  pregnant women  and wrongful convictions of innocent with reference to Article 37 of the Convention on the Rights of Child, 1990 and some other death penalty statues.  Article 7 of the Covenant provides that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." In “Simmons v. Roper"  the United States Supreme Court held that for those who had committed their crimes at the age of under 18 years, the imposition of the death penalty on those was cruel and unusual punishment and hence unconstitutional.
Article 1 and 16 of the “Convention against Torture and other forms of Cruel, Inhuman or Degrading Treatment or Punishment, 1987" contains provisions to protect the humanity. In 1993, eleven European nations that ratified the Covenant, reported the U.S. Death statues as violation of Articles 6 and 7 which emphasis on the abolition of the death penalty. In addition to these instruments, two other international statutes played a vital role in limiting the death penalty provisions.  One is the Second Optional Protocol, 1991 to the International Covenant, enacted to support the abolition of the capital punishment. Article 1.1 of the Protocol declares that 2 “No one within the jurisdiction of a State party to the present Protocol shall be executed". Article 1.2 states that “each State party shall take all necessary measures to abolish the death penalty within its jurisdiction." The other is the protocol to the American Convention on Human Rights, 1990  to abolish the Death Penalty. The United States has neither signed nor ratified either of these Protocols which show disrespect to the international human rights. 
In 2010, The European Court of Human Rights gave a landmark decision in “Al-Saadoon and Mufdhi v. United Kingdom",  a very important case concerning the protection of international human rights. In this case the applicants were detained by United Kingdom forces in Iraq. The applicants alleged their transfer to Iraqi authorities is violation of the human rights under Articles 2, 3, 6, 13 and 34 of the Convention and Article 1 of Protocol No. 13 and particularly the “non-refoulement principle" established by the Court in “Soering v. UK".  In both of these cases there was grave danger of applicants being subjected to capital punishment. The actual issue in the case was the inhuman conduct that the applicant would undergo as a result of the death row phenomenon because capital punishment was not outlawed in United Kingdom by Protocols 6 and 13. Article 2(1) of the commission unambiguously contemplates capital punishment. 
The Court clearly held that Article 2 of European Commission of Human Rights provides for a non-refoulement obligation which provides that there can be no extradition if a serious risk of the death penalty is established. “The Government claimed that, at the date of transfer, there were no substantial grounds to believe that the applicants would face the death penalty if convicted and that the United Kingdom had to respect Iraqi sovereignty and transfer the applicants to Iraq. In March 2010, the Court held that the United Kingdom guarantees no arrangements that the applicant’s human rights would be guaranteed after their transfer, and failing to obtain effective assurances regarding non-application of the death penalty, the United Kingdom violated Articles 2 and 3 of the Convention."  The requirement to comply with the Conventions and protocols in good faith and in light of its object and purpose requires that such obligations be strictly and consistently adhered to, in all cases to put a limitation on the misuse of the death penalty provisions and the protection of the human rights in compliance with the international human rights.
It can be concluded that the constant attention of international human rights law to the abolition of the death penalty has brought that end into sight.  Although, not all, but atleast some of the international law norms, prohibiting the death penalty have acquired the status of jus cogens, that protects the most fundamental human rights of the innocent. 
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