On June 6, South Africa's Supreme Court made up of blacks and whites, men and women, Afrikaner and English unanimously decided that the death penalty was unconstitutional under its provisional 1993 constitution.
The Court's lengthy opinion in the case of The State v. T. Makwanyane and M. Mchunu presented an extensive overview of death penalty jurisprudence in western democracies, former Soviet bloc states, human rights commissions and African nations before reaching the following conclusion:
"The rights to life and dignity are the most important of all human
rights, and the source of all other personal rights. By committing
ourselves to a society founded on the recognition of human rights we
are required to value these two rights above all others. And this
must be demonstrated by the State in everything that it does,
including the way it punishes criminals. This is not achieved by
objectifying murderers and putting them to death to serve as an
example to others in the expectation that they might possibly be
"The carrying out of the death sentence destroys life it
annihilates human dignity elements of arbitrariness are present in
its enforcement and it is irremediable. Taking these factors into
account in the context of our Constitution the death penalty is
indeed a cruel, inhuman and degrading punishment.
This decision stands in stark contrast to recent U.S. Supreme Court cases,
in which the Court's main goal seemed to be finding ways to execute Death
Row inmates more efficiently.
"The rights to life and dignity are the most important of all human rights, and the source of all other personal rights. By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others. And this must be demonstrated by the State in everything that it does, including the way it punishes criminals. This is not achieved by objectifying murderers and putting them to death to serve as an example to others in the expectation that they might possibly be deterred thereby."
The South African court examined the various justifications American death penalty proponents have argued and found each one morally and logically insufficient. It saw the deterrence value of the death penalty as a chimera:
"In the debate as to the deterrent effect of the death sentence,
the issue is sometimes dealt with as if the choice to be made is
between the death sentence and the murder going unpunished. That is
of course not so. The choice to be made is between putting the
criminal to death and subjecting the criminal to the severe
punishment of a long term of imprisonment which, in an appropriate
case, could be a sentence of life imprisonment. In the long run,
more lives may be saved through the inculcation of a rights culture
than through the execution of murderers."
The court saw the retributive effect of the death penalty as mere
"The righteous anger of family and friends of the murder victim,
reinforced by the public abhorrence of vile crimes, is easily
translated into a call for vengeance. We have long outgrown the
literal application of the biblical injunction of an eye for an
eye, and a tooth for a tooth.' The state does not need to engage in
the cold and calculated killing of murderers in order to express
moral outrage at their conduct."
The South African Court opinion finds no place for the death penalty in
a modern democracy. But in this country, a liberal president (a former
professor of constitutional law at the University of Arkansas, no less) is
busy trying to dismantle habeas corpus the main process by which
state prisoners challenge their criminal convictions.
Bills pending in Congress and supported by President Bill Clinton would force Death Row inmates to bring all habeas corpus claims within one or two years of the final state court review of their conviction. These bills, and many recent U.S. Supreme Court opinions, are an attempt to create "finality" in the appeals process.
What this goal ignores is that death penalty convictions often are overturned, sometimes years after the initial trial, because evidence emerged showing the convict's innocence. The Village Voice recently reported in a series of articles on the death penalty that more than 50 Death Row inmates in this century had convictions overturned. Sometimes it has taken over a decade for evidence of their innocence to come to light. If habeas corpus is limited, it is a certainty that this country again will execute innocent people.
In South Carolina, Union County Solicitor Tommy Pope is about to spend hundreds of thousands of dollars in an attempt to put Susan Smith to death for drowning her two children. Smith remains willing to plead guilty and accept a sentence of life imprisonment. Evidently, that is not enough for Union County.
In an era when voters won't accept tax increases to improve schools or expand social services, they seem happy to spend money to build prisons and stage executions.
But none of the arguments used to support the death penalty make any sense in Smith's case. While drowning her children may be inexplicably evil, to hear her community talk about her she hardly seems unredeemable.
To me, she is a woman with severe psychological problems, and seems an obvious example of a murderer capable of rehabilitation. But rather than providing her therapy, Union County wants to give her the lethal injection (which the state legislature recently approved).
Does anyone really think Smith's execution will have any deterrent effect? Whatever compels mothers to murder their children will not be stopped by executing Smith. So why all the blood lust?
The saddest part of the South African Supreme Court opinion was how it took inspiration and moral authority from older U.S. Supreme Court decisions. One concurrence looked to retired Justice William Brennan, perhaps the most eloquent U.S. justice to ever write against the death penalty:
"The death sentence must, in some measure, manifest a philosophy of indefensible despair in its execution, accepting as it must do, that the offender it seeks to punish is so beyond the pale of humanity as to permit of no rehabilitation, no reform, no repentance, no inherent spectre of hope or spirituality. He is effectively told: You are beyond the pale of humanity. You are not fit to live among humankind. You are not entitled to life. You are not entitled to dignity. You are not human. We will therefore annihilate your life.'"
The majority opinion quoted from Justice Robert Jackson's opinion in the 1943 case of West Virginia State Board of Education v Barnette, perhaps the strongest defense of the Bill of Rights protections ever written.
In a section quoted in the South Africa's Supreme Court opinion, Justice Jackson declared that the state could not.
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
Yet in America the right not to be put to death by the State in a deliberate, calculated manner is considered outside the realm of constitutional protection. Rather than use authority as a bully pulpit against a practice that every industrialized country has rejected, this country's leaders compete to prove how willing they are to use the death penalty.
While the South Africa Supreme Court uses its moral authority to strengthen a rights culture, American leaders do just the opposite. A decade ago, South Africa was a moral cesspool, enforcing an apartheid regime that seemed like the American South stuck somewhere between slavery and Jim Crow.
In less than a decade, it appears that respect for the concept of a rights culture, based on the inherent dignity of each individual, is stronger in South Africa than it is in America the birthplace of modern democracy. Reading the opinions in State v. T. Makwanyane and M. Mchunu I'm struck by how much more advanced Canada, Europe and now Africa appear in their respect for the inherent dignity of their citizens.
Americans pride themselves on living in the freest country on the planet, yet I suspect this is a delusion. There's a vast gulf between South Africa's handling of the death penalty issue and our handling of it. Considering our history and South Africa's recent turmoil, this gulf should shame America.
Greg Forman is a lawyer who practices in Charleston.
© Copyright by POINT, 1995
Last modified 7/9/95