seven judges of the Californian Supreme Court to be "impermissibly cruel"[1] under the California Constitution which prohibited cruel or unusual punishment. Also,
It degrades and dehumanizes all who participate in its processes. It is unnecessary to any legitimate goal of the state and is incompatible with the dignity of man and the judicial process.[2]
[92]In the Massachusetts decision in District Attorney for the Suffolk District v. Watson,[3] where the Constitution of the State of Massachusetts prohibited cruel or unusual punishment, the death sentence was also held, by six of the seven judges, to be impermissibly cruel.[4]
[93]In both cases the disjunctive effect of "or" was referred to as enabling the Courts to declare capital punishment unconstitutional even if it was not "unusual". Under our Constitution it will not meet the requirements of section 11(2) if it is cruel, or inhuman, or degrading.
[94]Proportionality is an ingredient to be taken into account in deciding whether a penalty is cruel, inhuman or degrading.[5] No Court would today uphold the constitutionality of a
- ↑ Id. at 899. The cruelty lay "…not only in the execution itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to the execution during which the judicial and administrative procedures essential to due process of law are carried out." Id. at 894 (citations omitted).
- ↑ Id. at 899.
- ↑ 381 Mass. 648 (1980).
- ↑ "…[T]he death penalty is unacceptable under contemporary standards of decency in its unique and inherent capacity to inflict pain. The mental agony is, simply and beyond question, a horror." Id. at 664. "All murderers are extreme offenders. Fine distinctions, designed to select a very few from the many, are inescapably capricious when applied to murders and murderers." Id. at 665. "…[A]rbitrariness and discrimination…inevitably persist even under a statute which meets the demands of Furman." Id. at 670. "…[T]he supreme punishment of death, inflicted as it is by chance and caprice, may not stand." Id. at 671. "The death sentence itself is a declaration that society deems the prisoner a nullity, less than human and unworthy to live. But that negation of his personality carries through the entire period between sentence and execution." Id. at 683 (Liacos, J., concurring).
- ↑ E.g., Coker v. Georgia, 433 U.S. 782 (1977) (imposition of the death penalty for rape violates due process guarantees because the sentence is grossly disproportionate punishment for a nonlethal offence). See also, Gregg v. Georgia, supra note 60, at 187 ("[W]e must consider whether the punishment of death is disproportionate in relation to the crime for which it is imposed."), and Furman v. Georgia, supra note 34, at 273 ("...a punishment may be degrading simply by reason of its enormity.").
