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2 posts from July 2016

07/29/2016

Guatemalan Decision Striking Down Death Penalty May Affect Other States

A recent decision by the Guatemalan Constitutional Court may have implications for the application of the death penalty in Texas and other states where juries may recommend death sentences upon a finding that the defendant is likely to be a danger in the future.

Art. 132 of the Guatemalan Penal Code provides (rough translation) that “A murderer shall be punished by imprisonment from 25 to 50 years, however the death penalty may be applied instead of the maximum term of imprisonment if the facts and circumstances of the offense, its commission and motives, reveal that the defendant is especially dangerous.”

In February 2016, the Guatemalan Constitutional Court held that this violated Article 17 of the Constitution, which provides: “Those actions or omissions that are not characterized as crimes or misdemeanors [falta] or sanctioned by a law preceding their perpetration are not punishable.” In essence, this prohibits ex post facto laws.

The court reasoned that a penalty linked to “hypothetical future conduct” is invalid. It also observed that the concept of “future dangerousness” stems from positivist beliefs that a person’s “dangerousness” is biologically determined and therefore insurmountable. The court condemns this as an archaic concept that is antithetical to modern conceptions of human rights, according to which sanctions must be imposed on the basis of what the offender has actually done, not on the basis of who he is.

The court also found that language in the penal code that provided for an alternative sentence of life without parole violated Article 19 of the constitution, which requires that the objective of any criminal punishment is the rehabilitation and social re-adaptation of the offender.

Presumably, in the wake of this decision, Guatemalan courts may no longer impose death sentences for murder unless and until the penal code is re-written.

-- Sandra Babcock

07/18/2016

Pathways to Abolition of the Death Penalty: Analyzing the Elements of Successful Abolition Strategies

Death Penalty Worldwide at Cornell Law School is pleased to announce the publication of its most recent study of the factors leading states to abolish capital punishment in law. Pathways to Abolition of the Death Penalty examines the historical and political processes underlying abolition, including the roles played by state and non-state actors such as parliamentarians and government officials, human rights defenders and international organizations, journalists and public opinion. The study, which benefitted from the support of the Swiss government, was launched at the 5th World Congress Against the Death Penalty in Oslo, Norway, on June 23.

Our project expands upon the groundbreaking report published by the International Commission against the Death Penalty in 2013, How States Abolish the Death Penalty. Building upon the case studies and trends observed in the ICDP’s report, our publication covers 14 new jurisdictions across the world. We examined examples across a range of geographical regions and periods, from the world’s first full legal abolition in Venezuela in 1863 to the most recent abolition success stories (Fiji, Suriname, Republic of Congo, Madagascar, Benin and Maryland). 

From these diverse historical and political contexts, we analyzed the elements of effective abolition strategies. While there is no universal blueprint and every country comes to abolition in its own way and on its own timeline, our study suggests that, especially in recent years, pathways to abolition rely on a combination of factors, including (1) restricting or suspending the death penalty in the years leading to abolition; (2) engaging parliamentary allies; (3) making use of the advocacy opportunities provided by human rights bodies’ prioritization of capital punishment; and (4) harnessing the momentum of the global trend towards abolition.

-- Delphine Lourtau and Sandra Babcock