Article by Ursula Bentele
This Article proposes a return to the international perspective, which had traditionally been part of the analysis of what constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution. The issue of whether a particular penalty, and specifically capital punishment, is unacceptably cruel does not hinge on narrow domestic concerns or conditions. Rather, as the United States Supreme Court acknowledged until very recently, the question addresses fundamental notions of humanity and dignity of universal application throughout the world. Using the South African Constitutional Court's recent decision abolishing the death penalty as a touchstone, this Article compares that court's approach with American capital punishment jurisprudence. Finding that neither the different words of the two constitutions nor the context of their adoption are determinative, this Article suggests that the different outcomes result from the lens through with the issue is viewed. Were the United States Supreme Court to look at the question from a global perspective, the conclusion would be inescapable that continued imposition of the death penalty fails to satisfy evolving standards of decency.
About the Author
Ursula Bentele. Professor of Law, Brooklyn Law School. B.A. Swarthmore College; J.D. University of Chicago.
Citation
73 Tul. L. Rev. 251 (1998)