v. Georgia.
The fatal constitutional infirmity in the punishment of death is that it treats "members of the human race as nonhumans, as objects to be toyed with and discarded. [It is] thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity."[1]
[58]Under our constitutional order the right to human dignity is specifically guaranteed. It can only be limited by legislation which passes the stringent test of being 'necessary'. The weight given to human dignity by Justice Brennan is wholly consistent with the values of our Constitution and the new order established by it. It is also consistent with the approach to extreme punishments followed by courts in other countries.
[59]In Germany, the Federal Constitutional Court has stressed this aspect of punishment.
Respect for human dignity especially requires the prohibition of cruel, inhuman, and degrading punishments. [The state] cannot turn the offender into an object of crime prevention to the detriment of his constitutionally protected right to social worth and respect.[2]
[60]That capital punishment constitutes a serious impairment of human dignity has also been recognised by judgments of the Canadian Supreme Court. Kindler v Canada[3] was concerned with the extradition from Canada to the United States of two fugitives, Kindler, who had been convicted of murder and sentenced to death in the United States, and Ng who was facing a murder charge there and a possible death sentence. Three of the seven judges who heard the cases expressed the opinion that the death penalty was cruel and unusual:
- ↑ Gregg v. Georgia, supra note 60, at 230 (Brennan, J., dissenting) (quoting his opinion in Furman v. Georgia, at 273). See also, Furman v. Georgia, supra note 34, at 296, where Brennan, J., concurring, states: "The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death."
- ↑ [1977] 45 BVerfGE 187, 228 (Life Imprisonment case) (as translated in Kommers, supra note 18, at 316). The statement was made in the context of a discussion on punishment to be meted out in respect of murders of wanton cruelty. It was held that a life sentence was a competent sentence as long as it allowed the possibility of parole for a reformed prisoner rehabilitated during his or her time in prison.
- ↑ (1992) 6 CRR (2d) 193 SC.
