Toward and Beyond the Abolition
of Capital Punishment
Charles J. Ogletree, Jr., and Austin Sarat
Civil societies have historically tried to distinguish the crime of murder from other offenses. Typically, murder has been subject to the most severe punishment and most intense public outcry. Countries with vastly different forms of government and systems of punishment find common ground on the seriousness of the crime committed by a person who causes another human being's death. The twentieth century, though, witnessed yet another kind of convergence around murder: nations of every political persuasion ended their use of death as a punishment for murder and other crimes.1 They declared the death penalty to be unconstitutional, unacceptably cruel, or a violation of human rights (or all of them).
To take but one example, in a major decision by the new democratic court of the Republic of South Africa, the justices, citing various theories to support their conclusion to end capital punishment, abolished the penalty, despite growing concern about crime. Justice Arthur Chaskalson, writing for the court, stated:
Constitutionalism in our country also arrives simultaneously with the
achievement of equality and freedom, and of openness, accommodation
and tolerance…. [T]he framers of our Constitution rejected not only the
laws and practices that imposed domination and kept people apart, but
those … that brutalized us as people and diminished our respect for life.
Everyone, including the most abominable of human beings, has the right to
life, and capital punishment is therefore unconstitutional.2