Death Penalty: Still a Discrimination Issue

  1. Procedural challenges to death penalty

The public debate on the death penalty is primarily of substantive character. But from a lawyer’s perspective the debate on procedural concerns might be of similar importance. Most procedural arguments are in some respect related to either discrimination[i] or the possibility of miscarriage of justice[ii].

In this article I will draw on both aspects of the debate to develop a further argument. It is the possibility of miscarriages of justice which brings to mind the question how equality is ensured after conviction. It will be shown that the death penalty makes procedural equality after conviction impossible (II.). I will then try to anticipate challenges the argument will have to face. These challenges will question whether there really is an unequal treatment of like cases (III.), whether such unequal treatment could be justified by the crime (IV.) or, more importantly, by the interest of maintaining an effective system of criminal justice (V.). The overall conclusion (VI.) will be that death penalty leads to arbitrariness after conviction

     II.  Discrimination in miscarriage cases

To establish the argument of this article, the following example shall be examined: A is convicted of murder, and therefore sentenced to death. B is convicted of rape, and therefore sentenced to life imprisonment. A is executed and B imprisoned. Ten years later, a new DNA test shows that both were innocent. B can be released from prison and claim compensation for the time he spent in prison. But A does not benefit from the new evidence anymore.

Almost any criminal law system offers the possibility of some form of retrial or commutation if the conviction turns out to be wrong subsequently. Yet, any retrial after execution is obviously senseless for the executed. Thus, the state gives the possibility of a retrial to some while denying it to others. This is an unequal treatment of like cases since they are members of the same group, i.e. the innocent convicts. Both are victims of a miscarriage of justice. They did not give any reason for conviction. They might have been convicted because of bad luck, false testimonies or collusion of witnesses. Neither committed the crime they were convicted of. Denying the possibility of a retrial to some while maintaining it for others for no apparent reason hence introduces a strong element of arbitrariness into the penalty scheme.

Arbitrariness (in capital punishment cases) is for obvious reasons a particularly severe challenge to the penalty scheme. In 1972, the United States Supreme Court decided Furman v Georgia, rendering the then existing system of capital punishment imposition unconstitutional.[iii] Furman and the petitioners in the two parallel cases were convicted of murder or rape and sentenced to death. The Supreme Court had to deal with the question of whether the death penalty constituted ‘cruel and unusual punishment’, violating the Eighth and Fourteenth Amendments of the US Constitution.

The major concern in the case was the alleged systematic race discrimination in capital punishment imposition. [iv] The problem was that the State laws gave wide discretion to the judges or juries to choose between the death penalty or only a prison sentence. However, the case also addressed the suspected arbitrariness of imposition under this discretion. Justice Brennan said:

[T]he State must not arbitrarily inflict a severe punishment. This principle derives from the notion that the State does not respect human dignity when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others. Indeed, the very words ‘cruel and unusual punishments’ imply condemnation of the arbitrary infliction of severe punishments.[v]

This, of course, only considers the imposition, not the possibility of commutation or retrial after conviction. However, allowing arbitrariness after conviction whilst carefully scrutinising the procedure of imposition would seem arbitrary itself. It follows that denying the possibility of a retrial to some wrongfully convicted whilst maintaining this possibility for others for no apparent reason is arbitrary. This argument will however have to face strong challenges, some of which I would like to deal with in the following section.

     III.       Comparability of the chosen groups

The first challenge is to question whether the situations I compared really are comparable. I have made the argument based on the assumption that the situation of A, wrongfully convicted of murder, sentenced to death, executed, and subsequently proven innocent, and B, wrongfully convicted of rape, sentenced to life imprisonment, imprisoned, and, after he turned out to be innocent, released from prison, are like cases. However, one could as well argue that the crucial point was that the death penalty is only final after the execution. In this view, it can only be compared to prison sentences which have already been finished. B’s case would then be a wrongful conviction, life imprisonment, and proof of his innocence after his sentence is over, i.e. after he died in prison. If this was the only way of comparing the cases of A and B, retrial or commutation would not make a difference in either case. Both would not gain the benefits of it anymore because they would have already finished their sentences by the time their innocence is proven.

This would however confuse a suspected difference in cases with the difference in treatment. The difference in the cases of A and B in fact lies in exercising the punishment. Whilst the prison sentence involves an undetermined dimension of time, the death penalty does not. B will be able to wait for occasions to prove his innocence for the rest of his life. A by contrast is deprived of this possibility soon after he has exhausted all possibilities of appeal. Although this may in fact also be quite a long time, execution will definitely put an end to it. It is precisely this point which constitutes the difference in treatment, not in cases

    IV.      Justification on grounds of the crime

The second challenge is to ask whether the unequal treatment could not possibly be justified with the differences in the type of crime the punishment is imposed for. In Ong Ah Chuan v Public Prosecutor for instance, the Privy Council had to decide on whether the distinction the Penal Code of Singapore drew between convicts of drug trafficking selling more or less than 15 grams of heroin was discriminatory.[vi] The Privy Council held that

article 12 (1) of the Constitution […] prohibits laws which require that some individuals within a single class should be treated by way of punishment more harshly than others; it does not forbid discrimination in punitive treatment between one class of individuals and another class in relation to which there is some difference in the circumstances of the offence that has been committed.[vii]

Whether the dissimilarity between two classes of offenders was sufficiently significant to justify the difference in treatment was up to the legislative to decide upon.[viii] The courts would only scrutinise whether the reason for the distinction was arbitrary or ‘had a reasonable relation to the social object’.[ix]

However, regarding the argument established above, this justification is not available. Since the innocent convicts did not commit the crimes they were convicted of, these crimes can hardly be the justification for any unequal treatment. For an innocent it is pure chance whether he will be convicted of murder and sentenced to death, or sentenced to life imprisonment for another crime he did not commit. Whether he is grouped with the innocent accused of murder or the innocent accused of other crimes purely depends on factors he cannot influence. Thus, such justification is not possible.

      V.        Justification on grounds of maintaining a system of criminal justice

The most serious challenge to my argument will be the question whether the argument is of significance. This challenge is based on the assumption that any system of criminal justice will produce occasional mistakes. Only four years after Furman, in Gregg v Georgia the US Supreme Court held that the revised statutes of Georgia now provided sufficient guidelines for the exercise of discretion to ensure a non-discriminatory, non-arbitrary imposition of the death penalty.[x] The petitioner argued that there was still unguided discretion left, inter alia, to the Governor (by commutation) to prevent the imposition and execution of death penalty on him.[xi] Justice Stewart however considered this not to be relevant because it did not concern the imposition of the death penalty. [xii] He said: ‘Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution.’[xiii] And Justice White said in his concurring opinion:

Petitioner’s argument that there is an unconstitutional amount of discretion in the system which separates those suspects who receive life imprisonment, a lesser penalty or are acquitted or never charged seems to be in final analysis an indictment of our entire system of justice. […] Mistakes will be made and discriminations will occur which will be difficult to explain. However, one of society’s most basic tasks is that of protecting the lives of its citizens […].[xiv]

Instead, the court gave great weight to the fact that Congress and 35 States had, after Furman, enacted new statutes in order to maintain the death penalty.[xv] This seems to support the argument that the right to equal treatment must step aside if the majority thinks that the deterrent and retributive effect of the death penalty is required. But this view leaves out an important aspect of criminal law in general. Of course the mere possibility of erroneous application cannot undermine the law as a concept itself. However, as already mentioned, almost any jurisdiction offers some form of retrial or at least commutation. Remarkably, Justice Stewart acknowledged in Gregg the importance of this possibility when he examined the constitutionality of the discretionary power of commutation: ‘[…A]cts of executive clemency would have to be prohibited. Such a system of course would be totally alien to our notions of criminal justice.’[xvi] However, execution has precisely this effect. In a broader sense it follows that, if it is the possibility to subsequently correct wrongful decisions which allows maintaining the authority of criminal law in the face of the possibility of mistake, then the finality of the death penalty does not fit in this concept of criminal justice anymore.[xvii] It moreover arbitrarily singles out a handful of innocent among the convicts who are denied retrial. Hence, even this challenge cannot outweigh the arbitrariness of execution.

      VI.      Conclusion

Though much depends on one’s view on substantial arguments on capital punishment, I have in this article shown an additional equality problem that death penalty regimes must deal with. Capital punishment deprives the wrongfully convicted of their possibility to prove their innocence, a possibility which innocent life prisoners retain. If one conceptualises equality in process rights as not ending after conviction, one will have to consider whether capital punishment violates equality rights in this respect.


Maximilian J Alter – University of Oxford

[i] Furman v Georgia, 408 US 238; 92 SCt 2736 (1972); Gregg v Georgia, 428 US 153; 96 SCt 2909 (1976); Bachan Singh v State of Punjab, AIR 1980 SC 898.

[ii] Michael Radelet & Hugo Adam Bedau, The Execution of the Innocent 61 LCPR (1998) 105.

[iii] Furman, (n 1).

[iv] ibid at 365, 366; 2791 (Marshall, J.) In his dissenting opinion, Powell, J. expressed the view that this was the case for any punishment, for it were primarily the underprivileged in a society who commit crimes, ibid at 447; 2833.

[v] ibid at 274; 2744.

[vi] Ong Ah Chuang v Public Prosecutor, [1981] AC 648, especially 673 (PC).

[vii] ibid at 673 (Lord Diplock).

[viii] ibid.

[ix] ibid, 673, 674.

[x] Gregg (n 1) at 195; 2935.

[xi] ibid at 199; 2937.

[xii] ibid

[xiii] ibid

[xiv] ibid at 226; 2949.

[xv] ibid at 179, 180; 2928 (Stewart, J.).

[xvi] ibid at 199; 2937, at Fn 50 (Stewart J.).

[xvii] In Furman (n 1) at 287; 2751, Brennan, J. referred to said finality to explain why death penalty is an ‘unusual punishment’.

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