Academic journal article The George Washington International Law Review

The Constitutionality of the Death Penalty: South Africa as a Model for the United States

Academic journal article The George Washington International Law Review

The Constitutionality of the Death Penalty: South Africa as a Model for the United States

Article excerpt


South Africa has disallowed capital punishment for over a decade, yet violent crime there remains frequently newsworthy, even internationally.1 Moreover, the crime rate is among the highest in the world.2 In 2000 a man broke into South African President Thabo Mbeki's house despite heavy security, and made himself comfortable drinking brandy for several days while Mbeki was out of the country.3 During my year in South Africa as a Fulbright scholar in 2000, I was told about a man who began a walk across the country to bring national media attention to the high crime rate. Robbers supposedly mugged him on the first day.

Despite evidence that many South Africans favored the death penalty,4 the new South African Constitutional Court in 1995 ruled the death penalty unconstitutional in State v. Makwanyane & Another5 (Makwanyane). The Court's President, Arthur Chaskalson, authored the unanimous opinion, though all of the other ten justices wrote separate concurring opinions.6 The national government supported the challengers because it was made up of former Apartheid opponents who had risked execution.7 An Attorney General (AG) from one of South Africa's provinces defended the law.8 The decision contrasts sharply with the U.S. Supreme Court's 1976 landmark ruling in Gregg v. Georgia9 upholding the death penalty's constitutionality.

This Article examines Makwanyane closely because it illuminates some of the most salient characteristics of South African constitutional interpretation, such as an emphasis on values, a willingness to examine international and comparative precedents, and judicial pragmatism. It then compares the Constitutional Court's reasoning with certain aspects of U.S. Supreme Court death penalty cases.

The Article explores how recent U.S. Supreme Court decisions have moved in the South African Court's direction. The Supreme Court has in the last three years reversed earlier decisions and outlawed the death penalty for the mentally retarded10 and for juveniles.11 In an August 2005 speech to the American Bar Assocation, Justice John Paul Stevens said the death penalty generally has "serious flaws" and that DNA evidence has shown that a "substantial number of death sentences were administered erroneously."12 Several recent Supreme Court opinions contained foreign law comparisons and engaged in comparative analysis.13 In addition, U.S. juries seem to be increasingly skeptical about the death penalty due to factors such as the exonerations produced by DNA testing.14 This Article argues that this judicial shift and increasing public skepticism is quite sensible for the reasons Justice Stevens articulated in his speech to the American Bar Association. Focusing on the potential influence of South Africa's death penalty cases is especially appropriate because it is the tenth anniversary of Makwanyane and it is almost the tenth anniversary of the 1996 South African Constitution.

Part I of this Article analyzes South Africa's use of capital punishment during the Apartheid era and the factors leading to the Constitutional Court's decision to abandon the death penalty. Part II examines the U.S. Supreme Court's death penalty jurisprudence. Lastly, Part III demonstrates how the U.S. Supreme Court has started to sound increasingly like the South African Constitutional Court.


A. History

Former South African President Nelson Mandela could have received the death penalty in the 1960s when he was charged with treason for his activities leading the African National Congress (ANC).15 Yet Mandela was not the first to face this threat. Capital punishment in South Africa goes back at least to the seventeenth century, with the arrival of the Dutch East Indies company.16 By 1910, after a period of English control, the punishment was mainly limited to murder convictions.17 Yet when the Afrikaaner National Party (National Party) took over in 1948, the government used the death penalty for other crimes, including aggravated robbery, burglary, sabotage, terrorism, and kidnapping. …

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