and this dragging out of the process has been characterised as being cruel and degrading.[1] The difficulty of implementing a system of capital punishment which on the one hand avoids arbitrariness by insisting on a high standard of procedural fairness, and on the other hand avoids delays that in themselves are the cause of impermissible cruelty and inhumanity, is apparent. Justice Blackmun, who sided with the majority in Gregg's case, ultimately came to the conclusion that it is not possible to design a system that avoids arbitrariness.[2] To design a system that avoids arbitrariness and delays in carrying out the sentence is even more difficult.
[56]The United States jurisprudence has not resolved the dilemma arising from the fact that the Constitution prohibits cruel and unusual punishments, but also permits, and contemplates that there will be capital punishment. The acceptance by a majority of the United States Supreme Court of the proposition that capital punishment is not per se unconstitutional, but that in certain circumstances it may be arbitrary, and thus unconstitutional, has led to endless litigation. Considerable expense and interminable delays result from the exceptionally-high standard of procedural fairness set by the United States courts in attempting to avoid arbitrary decisions. The difficulties that have been experienced in following this path, to which Justice Blackmun and Justice Scalia have both referred,[3] but from which they have drawn different conclusions, persuade me that we should not follow this route.
The Right to Dignity
[57]Although the United States Constitution does not contain a specific guarantee of human dignity, it has been accepted by the United States Supreme Court that the concept of human dignity is at the core of the prohibition of "cruel and unusual punishment" by the Eighth and Fourteenth Amendments.[4] For Brennan J this was decisive of the question in Gregg
- ↑ Furman v. Georgia, supra note 34, at 288-289 (Brennan, J., concurring). Although in the United States prolonged delay extending even to more than ten years has not been held, in itself, a reason for setting aside a death sentence, Richmond v. Lewis, 948 F.2d 1473, 1491 (9th Cir. 1990) (rejecting a claim that execution after sixteen years on death row would constitute curel and unusual punishment in violation of the Eighth and Fourteenth Amendments), in other jurisdictions a different view is taken.
It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it. Appellate procedures that echo down the years are not compatible with capital punishment. The death row phenomenon must not become established as a part of our jurisprudence.
Pratt v Attorney-General for Jamaica, supra note 3, at 1014.
- ↑ Callins v. Collins, supra note 62, (Blackmun, J., dissenting).
- ↑ Id. (compare Scalia, J., concurring, with Blackmun, J., dissenting).
- ↑ Trop v. Dulles, supra note 61, at 100. See also, Furman v. Georgia, supra note 34, at 270–281 (Brennan, J., concurring); Gregg v. Georgia, supra note 60, at 173; People v. Anderson, supra note 62, at 895 ("The dignity of man, the individual and the society as a whole, is today demeaned by our continued practice of capital punishment.").
