Saturday, December 20, 2008

DOwnload File Splitter

http://rapidshare.com/files/158389294/001FilJoiSpl4.0.4.2_downarchive.rar

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Saturday, December 6, 2008

Birthday girl Britney struggles to keep her modesty as she celebrates in low-cut dress
By JO CLEMENTS
Last updated at 2:08 AM on 04th December 2008
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If Britney Spears was looking to steer the talk away from her vocal talents, she chose the right dress.

The singer, who has been lambasted recently for miming, poured herself into the tight frock for her 27th birthday.

She managed to spill a little in the process, judging by this picture taken outside the Tenjune nightclub in New York on Tuesday night.

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Saturday, November 8, 2008

Case study


Page 1

IN THE SUPREME COURT OF INDIA

WP (Crl.) No. 284-285/2006

Epuru Sudhakar & Anr.

vs.

Government of Andhra Pradesh & Ors.

Written Submissions of Senior Counsel

Soli Sorabjee as Amicus Curiae

I. The relevant constitutional provisions regarding the grant of pardon,

remissions, suspension of sentence, etc. by the President of India and the

Governor of a State are as follows :

“Article 72. Power of President to grant pardons, etc. and to

suspend, remit or commute sentences in certain cases – (1)

The President shall have the power to grant pardons, reprieves,

respites or remissions of punishment or to suspend, remit or

commute the sentence of any person convicted of any offence –

(a) in all cases where the punishment or sentence

is by a Court Martial;

(b) in all cases where the punishment or sentence

is for an offence against any law relating to a

matter to which the executive power of the

Union extends;

(c) in all cases where the sentence is a sentence of

death.

(2) Nothing in sub-clause (a) of clause (1) shall affect the power

conferred by law on any officer of the Armed Forces of the Union

to suspend, remit or commute a sentence passed by a Court

martial.

(3) Nothing in sub-clause (c) of clause (1) shall affect the power

to suspend, remit or commute a sentence of death exercisable by

the Governor of a State under any law for the time being in force.”

“Article 161 Power of Governor to grant pardons, etc., and to

suspend, remit or commute sentences in certain cases - The

Page 2

Governor of a State shall have the power to grant pardons,

reprieves, respites or remissions of punishment or to suspend,

remit or commute the sentence of any person convicted of any

offence against any law relating to a matter to which the executive

power of the State extends.”

The provision corresponding to Article 72 in the Government of

India Act 1935 was section 295 which read as follows:

“(1) Where any person has been sentenced to death in a

Province, the Governor-General in his discretion shall have all

such powers of suspension, remission of commutation of sentence

as were vested in the Governor-General in Council immediately

before the commencement of Part III of this Act, but save as

aforesaid no authority in India outside a Province shall have any

power to suspend, remit or commute the sentence of any person

convicted in the Province.

Provided that nothing in this sub-section affects any powers

of any officer of His Majesty’s forces to suspend, remit or

commute a sentence passed by a court-martial.

(2) Nothing in this Act shall derogate from the right of His

Majesty, or of the Governor-General, if any such right is delegated

to him by His Majesty, to grant pardons, reprieves, respites or

remissions of punishment.”

There was no provision in the Government of India Act 1935

corresponding to Article 161 of the Constitution.

The above constitutional provisions were debated in the

Constituent Assembly on 29th December 1948 and 17th September 1949

[see Constituent Assembly Debates, Vol.7, pages 1118-1120 and Vol. 10, page

389]. The grounds and principles on which these powers should be

exercised were not discussed nor debated [see Framing of India’s Constitution

: A Study, 2nd Edition, Dr. Subhash C Kashyap, page D 367-371, page 397-399].

Page 3

II. In addition to the above constitutional provisions the Criminal

Procedure Code 1973 provides for power to suspend or remit sentences

– Section 432 and the power to commute sentence [see Section 433].

Section 433A lays down restrictions on provisions of remission or

commutation in certain cases mentioned therein. Section 434 confers

concurrent power on the central government in case of death sentence.

Section 435 provides that the power of the state government to

remit or commute a sentence where the sentence is in respect of certain

offences specified therein will be exercised by the state government only

after consultation with the central government.

Sections 54 and 55 of the IPC confer power on the appropriate

government to commute sentence of death or sentence of imprisonment

for life as provided therein. For the sake of convenience a comparative

table showing the provisions relating to pardon and commutation of

sentence is enclosed.

III. The philosophy underlying the pardon power is that “every civilized

country recognizes, and has therefore provided for, the pardoning power

to be exercised as an act of grace and humanity in proper cases. Without

such a power of clemency, to be exercised by some department or

functionary of a government, a country would be most imperfect and

deficient in its political morality, and in that attribute of Deity whose

judgments are always tempered with mercy.” [see 59 American Jurisprudence

2d, page 5].

The rationale of the pardon power has been felicitously enunciated

by the celebrated Justice Holmes of the United States Supreme Court in

the case of Biddle v. Perovich in these words [71 L. Ed. 1161 at 1163]:

Page 4

“A pardon in our days is not a private act of grace from an

individual happening to possess power. It is a part of the

constitutional scheme. When granted, it is the determination

of the ultimate authority that the public welfare will be

better served by inflicting less than what the judgment

fixed” [emphasis added].

In the case of Kehar Singh v. Union of India [1989 (1) SCC 204] these

observations of Justice Holmes have been approved [see at 211].

The classic exposition of the law relating to pardon is to be found

in Ex parte Philip Grossman where Chief Justice Taft stated:

“Executive clemency exists to afford relief from undue

harshness or evident mistake in the operation or the

enforcement of the criminal law. The administration of

justice by the courts is not necessarily always wise or

certainly considerate of circumstances which may properly

mitigate guilt. To afford a remedy, it has always been

thought essential in popular governments, as well as in

monarchies, to vest in some other authority than the courts

power to ameliorate or avoid particular criminal judgments.”

[69 L. Ed. 527]

The dicta in Ex parte Philip Grossman were approved and adopted

by the apex Court in Kuljit Singh v. Lt. Governor of Delhi [1982 (1) SCC

417]. In actual practice, a sentence has been remitted in the exercise of

this power on the discovery of a mistake committed by the High Court in

disposing of a criminal appeal. [see Nar Singh v. State of Uttar Pradesh, AIR

1954 SC 457].

IV. From the foregoing it emerges that power of pardon, remission can be

exercised upon discovery of an evident mistake in the judgment or undue

harshness in the punishment imposed.

V. However the legal effect of a pardon is wholly different from a judicial

supersession of the original sentence. In Kehar Singh’s case this Hon’ble

Court observed that in exercising the power under Article 72 “the

Page 5

President does not amend or modify or supersede the judicial record. …

And this is so, notwithstanding that the practical effect of the Presidential

act is to remove the stigma of guilt from the accused or to remit the

sentence imposed on him” [see Kehar Singh, supra at 213]. The President

“acts in a wholly different plane from that in which the Court acted. He

acts under a constitutional power, the nature of which is entirely different

from the judicial power and cannot be regarded as an extension of it”.

This ostensible incongruity is explained by Sutherland J. in United

States v. Benz [75 L. Ed. 354] in these words:

“The judicial power and the executive power over sentences

are readily distinguishable. To render judgment is a judicial

function. To carry the judgment into effect is an executive

function. To cut short a sentence by an act of clemency is an

exercise of executive power which abridges the enforcement

of the judgment, but does not alter it qua a judgment”

[emphasis added] [see page 358].

According to the Report of the U.K. Royal Commission pardon can be

granted where the Home Secretary feels that despite the verdict of the

jury there is a “scintilla of doubt” about the prisoner’s guilt.

VI. Judicial decisions, legal text books, reports of Law Commission, academic

writings and statements of administrators and people in public life reveal

that the following considerations have been regarded as relevant and

legitimate for the exercise of the power of pardon.

Some of the illustrative considerations are:

(a) interest of society and the convict;

(b) the period of imprisonment undergone and the remaining

period;

(c) seriousness and relative recentness of the offence;

Page 6

(d) the age of the prisoner and the reasonable expectation of

his longevity;

(e) the health of the prisoner especially any serious illness from

which he may be suffering;

(f) good prison record;

(g) post conviction conduct, character and reputation;

(h) remorse and atonement;

(i) deference to public opinion.

It has occasionally been felt right to commute the sentence

in deference to a widely spread or strong local expression of

public opinion, on the ground that it would do more harm

than good to carry out the sentence if the result was to

arouse sympathy for the offender and hostility to the law [see

Law Commission Report, page 328, para 1071]

It is necessary to keep in mind the salutary principle that:

“To shut up a man in prison longer than really

necessary is not only bad for the man himself, but

also it is a useless piece of cruelty, economically

wasteful and a source of loss to the community.”

as quoted in Burghess, J.C. in (1897), U.B.R. 330 (334)

VII. The power under Article 72 as also under Article 161 is of the widest

amplitude and envisages myriad kinds and categories of cases with facts

and situations varying from case to case. The exercise of power depends

upon facts and circumstances of each case and the necessity or the

justification for exercising that power has therefore to be judged from

Page 7

case to case. According to the Law Commission in its aforesaid report

stated that it would not be desirable to attempt to lay down any rigid and

exhaustive principles on which the sentence of death may be commuted.

This Hon’ble Court in Kehar Singh’s case did not accept the

petitioners contention that in order to prevent an arbitrary exercise of

power under Article 72 this Court should draw up a set of guidelines for

regulating the exercise of the power. The Court opined that specific

guidelines need not be spelled out and it may not be possible to lay down

any precise clearly defined and sufficiently channelised guidelines [see

Kehar Singh, page 217].

It is respectfully submitted that in view of the passage of time since the

ruling in Kehar Singh’s case and having regard to various instances of

arbitrary exercise of power of pardon it is desirable that this Hon’ble

Court should lay down broad principles or criteria to guide the exercise or

non-exercise of the pardon power, it is submitted that though the

circumstances and the criteria for exercise or non-exercise of pardon

power may be of infinite variety one principle is well settled and admits of

no doubt or debate, namely that the power of pardon “should be

exercised on public considerations alone. An undue exercise of the

pardoning power is greatly to be deplored. It is a blow at law and order

and is an additional hardship upon society in its irrepressible conflict with

crime and criminals”. [see 59 American Jurisprudence 2d, page 11, para 13].

VIII. Constitutional position regarding exercise of pardon power.

This Hon’ble Court in the case of Maru Ram v. Union of India [1981

(1) SCC 107] ruled that the President and the Governors in discharging

the functions under Article 72 and Article 161 respectively must act not

Page 8

on their own judgment but in accordance with the aid and advice of the

ministers [see page 146, para 61]. This legal position was re-affirmed by this

Hon’ble Court in the case of Kehar Singh v. Union of India [1989 (1) SCC

207 at 211].

It was held in Maru Ram’s case that the constitutional power under Article

72 and Article 161 cannot be fettered by any statutory provision such as

sections 432-433 and 433-A of the Criminal Procedure Code and the said

power cannot be altered, modified or interfered with in any manner

whatsoever by any statutory provisions or prison rules.

IX. Judicial review of exercise of pardon power under Articles 72 and

161.

It is well settled that the exercise or non-exercise of pardon power

by the President or Governor is not immune from judicial review.

Limited judicial review is available in certain cases.

(a) This Hon’ble Court in the case of Maru Ram supra, held that all public

power, including constitutional power, shall never be exercisable

arbitrarily or mala fide and, ordinarily, guide-lines for fair and equal

execution are guarantors of the valid play of power. [see page 147, para 62]

It is noteworthy that this Hon’ble Court has in Kehar Singh’s

case unequivocally rejected the contention of the Attorney General that

the power of pardon can be exercised for political consideration [see Kehar

Singh, para 12, pages 215-216]. This Hon’ble Court in Maru Ram ruled that

consideration of religion, caste, colour or political loyalty are totally

Page 9

irrelevant and fraught with discrimination [see Maru Ram, op cit, page 150,

para 65].

(b) This Hon’ble Court in Kehar Singh’s case ruled that the order of the

President cannot be subjected to judicial review on its merits except

within the strict limitations defined in Maru Ram v. Union of India. The

function of determining whether the act of a constitutional or statutory

functionary falls within the constitutional or legislative conferment of

power, or is vitiated by self-denial on an erroneous appreciation of the

full amplitude of the power is a matter for the court. [see page 214, para 11]

(c) It was also submitted on behalf of the Union of India, in Kehar Singh’s

case, placing reliance on the doctrine of the division (separation) of

powers, that it was not open to the judiciary to scrutinize the exercise of

the “mercy” power [see page 216]. In dealing with this submission on

behalf of the Union of India this Hon’ble Court held that the question as

to the area of the President’s power under Article 72 falls squarely within

the judicial domain and can be examined by the court by way of judicial

review [see para 14, page 217].

(d) As regards the considerations to be applied to a petition for

pardon/remission in Kehar Singh’s case this Hon’ble Court observed as

follows :

“As regards the considerations to be applied by the

President to the petition, we need say nothing more as the

law in this behalf has already been laid down by this Court

in Maru Ram.” [see page 217]

(e) In the case of Swaran Singh v. State of U.P. [1998 (4) SCC 75] after

referring to the judgments in the cases of Maru Ram and Kehar Singh this

Hon’ble Court held as follows :

Page 10

“we cannot accept the rigid contention of the learned

counsel for the third respondent that this Court has no

power to touch the order passed by the Governor under

Article 161 of the Constitution. If such power was

exercised arbitrarily, mala fide or in absolute disregard of

the finer canons of the constitutionalism, the by-product

order cannot get the approval of law and in such cases, the

judicial hand must be stretched to it. [see page 79, para 12]

In Swaran Singh’s case the one Doodh Nath was found guilty of murdering

one Joginder Singh and was convicted to imprisonment for life. His

appeals to the High Court and Special Leave Petition to the Supreme

Court were unsuccessful. However, within a period of less than 2 years

the Governor of Uttar Pradesh granted remission of the remaining long

period of his life sentence. This Hon’ble Court quashed the said order of

the Governor on the ground that when the Governor was not posted

with material facts, the Governor was apparently deprived of the

opportunity to exercise the powers in a fair and just manner. Conversely,

the impugned order “fringes on arbitrariness” [see page 79, para 13].

The Court held that if the pardon power “was exercise arbitrarily,

mala fide or in absolute disregard of the finer canons of the

constitutionalism, the by-product order cannot get the approval of law

and in such cases, the judicial hand must be stretched to it” [see Swaran

Singh, op cit, page 79].

The Court further observed that when the order of the Governor

impugned in these proceedings is subject to judicial review within the

strict parameters laid down in Maru Ram case and reiterated in Kehar Singh

case: “we feel that the Governor shall reconsider the petition of Doodh

Nath in the light of those materials which he had no occasion to know

earlier.”, [see page 79] and left it open to the Governor of Uttar Pradesh to

pass a fresh order in the light of the observations made by this Hon’ble

Court. [see page 80]

Page 11

(f) In the case of Satpal v. State of Haryana [2000 (5) SCC 170] this Hon’ble

Court observed that the power of granting pardon under Article 161 is

very wide and does not contain any limitation as to the time on which and

the occasion on which and the circumstances in which the said powers

could be exercised. [see page 174]

Thereafter the Court held as follows :

“the said power being a constitutional power conferred

upon the Governor by the Constitution is amenable to

judicial review on certain limited grounds. The Court,

therefore, would be justified in interfering with an order

passed by the Governor in exercise of power under Article

161 of the Constitution if the Governor is found to have

exercised the power himself without being advised by the

Government or if the Governor transgresses the jurisdiction

in exercising the same or it is established that the Governor

has passed the order without application of mind or the

order in question is mala fide one or the Governor has

passed the order on some extraneous consideration.” [see

page 174]

The principles of judicial review on the pardon power have been

restated in the case of Bikas Chatterjee v. Union of India [2004 (7) SCC 634

at 637].

X. It is submitted that on a proper reading of the aforesaid judgments of this

Hon’ble Court it is clear that judicial review of the order of the President

or the Governor under Article 72 or Article 161, as the case may be, is

available and their orders can be impugned on the following grounds:

(a) that the order has been passed without application of mind;

(b) that the order is mala fide;

(c) the order has been passed on extraneous or wholly

irrelevant considerations;

Page 12

(d) that the order suffers from arbitrariness

This Hon’ble Court in its decision in Government of A.P. v. M.T. Khan

[2004 (1) SCC 616] stated that if the government consider it expedient

that the power of clemency be exercised in respect of a particular

category of prisoners the government had full freedom to do so and also

for excluding certain category of prisoners which it thought expedient to

exclude. The Court further observed that “to extend the benefit of

clemency to a given case or class of cases is a matter of policy and to do it

for one or some, they need not do it for all, as long as there is no

insidious discrimination involved” [emphasis added] [see page 622, para 6].

XI. Judicial Review in Commonwealth Countries:

The Court of Appeal of New Zealand in the case of Burt v.

Governor General [1992 (3) NZLR 672] held as follows:

“it would be inconsistent with the contemporary approach

to say that, merely because it is a pure and strict prerogative

power, its exercise or non-exercise must be immune from

curial challenge. There is nothing heterodox in asserting, as

counsel for the appellant to, that the rule of law requires that

challenge shall be permitted in so far as issues arise of a kind

with which the Courts are competent to deal. … it is more a

matter of a value or conceptual judgment as to the place in

the law and the effectiveness or otherwise of the prerogative

of mercy at the present day. In attempting such a judgment

it must be right to exclude any lingering thought that the

prerogative of mercy is no more than an arbitrary

monarchial right of grace and favour. As developed it has

become an integral element in the criminal justice system, a

constitutional safeguard against mistakes” [emphasis

supplied] [see page 678, 681].

The aforesaid judgment of the New Zealand High Court was

referred to with the approval in the case of R v. Secretary of State , ex p

Bentley [1993 (4) All ER 442]. Dealing with the plea that the power of

Page 13

pardon is a royal prerogative of mercy and immune from judicial review,

the Court of Appeal held that “it would be surprising and regrettable in

our developed state of public law were the decision of the Home

Secretary to be immune from legal challenge irrespective of the gravity of

the legal errors which infected such a decision”. The Court further ruled

that “the CCSU case made it clear that the powers of the court cannot be

ousted merely by invoking the word ‘prerogative’. [see page 452].

The Court of Appeal in England concluded that “the Home

Secretary failed to recognise the fact that the prerogative of mercy is

capable of being exercised in many different circumstances and over a

wide range and therefore failed to consider the form of pardon which

might be appropriate to meet the facts of the present case. Such a failure

is, we think, reviewable” [see page 453].

…..

Page 14

IN THE SUPREME COURT OF INDIA

WP (Crl.) No. 284-285/2006

Epuru Sudhakar & Anr.

vs.

Government of Andhra Pradesh & Ors.

Supplemental Written Submissions of Senior Counsel

Soli Sorabjee as Amicus Curiae

1. Whether it is open to rescind or cancel an order of pardon which has been

granted on a basis which is subsequently found to be unfounded or which

has been obtained by misrepresentation or fraud.

a. Articles 72 and 161 do not expressly provide for rescission or

cancellation of an order of pardon. However, recourse can be had to

section 14 and section 21 of the General Clauses Act, 1897, in

appropriate cases. Section 14 and section 21 of the General Clauses

Act, are set out in these terms:

14. Powers conferred to be exercisable from time to

time. — (1) Where, by any Central Act or Regulation

made after the commencement of this Act, any power is

conferred then unless a different intention appears that

power may be exercised from time to time as occasion

requires.

(2) This section applies also to all Central Acts and

Regulations made on or after the fourteenth day of

January, 1887.

21. Power to issue, to include power to add to, amend,

vary or rescind notifications, orders, rules or bye-laws.

— Where, by any Central Act or Regulation, a power to

issue notifications orders, rules or bye-laws is conferred,

then that power includes a power, exercisable in the like

Page 15

manner and subject to the like sanction and conditions (if

any), to add to, amend, vary or rescind any notifications,

orders, rules or bye-laws so issued.

b. The aforesaid rule of interpretation as embodied in section 14 and

section 21 of the General Clauses Act, 1897, has been applied to the

Constitution of India in S.V.G. Iyengar v. State of Mysore AIR 1961

Mysore 37 and Sampat Prakash v. State of J & K AIR 1970 SC 1118. In

Sampat Prakash v. State of J & K it was held that [see p. 1124]:

“This provision is clearly a rule of interpretation which

has been made applicable to the Constitution in the

same manner as it applied to any Central Act or

Regulation. On the face of it, the submission that

section 21 cannot be applied to the interpretation of the

Constitution will lead to anomalies which can only be

avoided by holding that the rule laid down in this

section is fully applicable to all provisions of the

Constitution.”

Reference is invited to the Division Bench Judgement of the

Mysore High Court in S.V.G. Iyengar v. State of Mysore AIR 1961

Mysore 37 where it has been held that section 14 and section 21

of General Clauses Act, 1897, by virtue of article 367 of

Constitution apply to exercise of powers under the

Constitution as well [see para 17 at p. 40].

“It is clear from the proviso to Article 309 that the rules which

shall be effective until the appropriate Legislature makes a law

are not only the rules made for the first time under that

provision but include also those which are made from time to

Page 16

time in the exercise of power conferred by S. 14 of the General

Clauses Act, 1897 and also those rules as modified, amended

or varied in the exercise of the power conferred by Sec. 21 of

the General Clauses Act.”

Accordingly, if subsequently it comes to the knowledge of the

President or the Governor, i.e., the Central or State

Government, that pardon has been obtained on the basis of a

manifest mistake, or patent misrepresentation or fraud, the

same can be rescinded and cancelled.

c. Attention is invited to section 432 of the Code of Criminal

Procedure, 1973, which lays down the consequence for nonfulfillment

of any condition on which remission has been granted.

Section 432 (3): -

(3) If any condition on which a sentence has been suspended or

remitted is, in the opinion of the appropriate Government, not

fulfilled, the appropriate Government may, cancel the

suspension or remission, and thereupon the person in whose

favour the sentence has been suspended or remitted may, if at

large, be arrested by any police officer, without warrant and

remanded to undergo the unexpired portion of the sentence.

d. The position in U.S.A. is summed up in 67A Corpus Juris Secundum, p.

21, para 16 as follows:

“There is authority for the view that a pardon may be

held void where it appears from the pardon that the

pardoning power was misinformed; but there is also

authority for the view that intentional falsehood or

Page 17

suppression of truth is necessary, and that misinformation

given in good faith and in the belief in its truth is

insufficient to avoid a pardon…..A pardon procured by

false and fraudulent representations or by intentional

suppression of the truth is void, even though the person

pardoned had no part in perpetrating the fraud.”

See also 59 American Jurisprudence 2d para 42 at p. 28:

“It has often been broadly stated that a pardon obtained

by fraud is void, as, for instance, where it may be

reasonably inferred from the language of a pardon,

considered in connection with the record of the cause in

which it was granted, that the executive was deceived or

imposed upon by those procuring it, by false statements

or omissions to state relevant facts, or by the

suppression of the fact that the judgment of conviction

has been appealed from. Other courts, however, hold

that the term “void” as thus used means simply that a

pardon obtained by fraud may be declared to be void in

a proceeding authorized by law, before a court having

jurisdiction for the purpose, with ample opportunity to

the person holding the pardon to defend.”

2. Judicial review when no reasons are assigned for granting pardon

a. In Kehar Singh’s case this Hon’ble Court has made an observation at p.

216 that,

“There is no question involved in this case of asking for

reasons for the Presidents’ order”.

It is respectfully submitted that this observation must be understood

in the context of the contention that the petitioner or party must be

given reasons. The question whether reasons can or cannot be

disclosed to the Court when the order is challenged was not

Page 18

discussed. In any event, it is submitted that absence of obligation to

convey reasons to the petitioner does not mean that there should not

be legitimate and relevant reasons for passing the order.

b. Obligation to give reasons to a party is entirely different from

obligation to apprise the Court about the reasons for the action when

the action is challenged in court. This aspect was considered by this

Hon’ble Court in the case of S.R. Bommai [(1994) 3 SCC 1], in the

context of exercise of power under article 356 of the Constitution.

Attention is drawn to the observations at p. 109, para (g) and (h) and

at p. 110, para (a) of the judgment which are as follows:

“When the Proclamation is challenged by making out a

prima facie case with regard to its invalidity, the burden

would be on the Union Government to satisfy that there exists

material which showed that the government could not

be carried on in accordance with the provision of the

Constitution. Since such material would be exclusively

within the knowledge of the Union Government, in

view of the provision of Section 106 of the Evidence

Act, the burden on proving the existence of such

material would be on the Union Government.”

[emphasis supplied.]

c. The position if the Government chooses not to disclose the reasons

or the material for the impugned action was stated in the words of

Lord Upjohn in the landmark decision in Padfield and Others v. Minister

of Agriculture, Fisheries and Food and Others. [(1968) 1 All E.R. 694] at p.

719:

Page 19

“.. if he does not give any reason for his decision it may be, if

circumstances warrant it, that a court may be at liberty

to come to the conclusion that he had no good reason

for reaching that conclusion..”

d. The same approach was adopted by Justice Rustam S. Sidhwa of the

Lahore High Court in Muhammad Sharif v. Federation of Pakistan PLD

1988 Lah 725 where the learned judge observed as follows at p. 775,

para 13:

“I have no doubt that both the Governments are not

compelled to disclose all the reasons they may have

when dissolving the Assemblies under Articles 58 (2)(b)

and 112(2)(b). If they do not choose to disclose all the

material, but only some, it is their pigeon, for the case will

be decided on a judicial scrutiny of the limited material

placed before the Court and if it happens to be totally

irrelevant or extraneous, they must suffer.” [emphasis

supplied].

Justice Sidhwa’s aforesaid observations have been approvingly

referred to in the Supreme Court decision in S.R. Bommai, supra, at p.

98, paras (f) – (g).

e. Justice Hansaria as a judge of the Gauhati High Court in the case of

Vamuzzo v. Union of India (1988) Gauhati Law Journal 468 adopted the

approach of Justice Sidhwa, at p. 517. The learned judge gave time to

the Government of India to inform the Court about the materials

upon which the President’s Proclamation under article 356 was

passed in the case of the State of Nagaland.

Page 20

The relevant portion of para 47 at p. 517 is set out below:

“For this purpose we grant 10 days’ time. If the (sic) within

this period they would fail to produce the material we shall

have to render our opinion on the basis of the materials made

available to us. If they would fail to do so, this Court would

have no other alternative but to decide the matter on the basis

of the materials placed before it. In this connection reference

may be made to what was stated by Rustam Sidhwa J. in the

aforesaid case of Lahore High Court [Muhammad Sharif v.

Federation of Pakistan PLD 1988 Lah 725].

It may be mentioned that Justice Hansaria’s views were not shared by

the other judge, Chief Justice A. Raghuvir. It is significant that Justice

Hansaria’s view has been approved by this Hon’ble Court in S.R.

Bommai, supra, see page 284, para (a) – (b) and (d):

“Hansaria, J., however, took a contrary view. The

learned Judge held that the material which formed part

of ‘other information’ but has not been produced before

the court, does not form part of the advice tendered by

the Council of Ministers to the President. The court is,

therefore, entitled to see the said material and for that

purpose the Union of India must be given ten days’ time

for producing the same. If, however, they decline to do

so, the court would have no alternative but to act upon

the present material and the Union of India will have to

take consequences of such a course…..the view taken by

Hansaria J. (as he then was) must be held to be the

Page 21

correct one and not the view taken by the learned Chief

Justice.”

f. It is respectfully submitted that if the government chooses to

maintain an inscrutable face of the sphinx in a case where the court

on account of surrounding facts and circumstances is prima facie

satisfied that impugned action is apparently not in conformity with

the constitution, the burden shifts on the Government and if it fails

to give reasons or disclose the material on which the impugned

action is based, “it is their pigeon” .

The court’s power of judicial review which is a basic feature of the

Constitution cannot be incapacitated by a studied and deliberate

silence on part of the government.

g. Article 74(2) does not debar disclosure of relevant material on which

the order is based. See Bommai, supra, p. 148, para 153:

“Article 74 (2) is not a bar against the scrutiny of the material

on the basis of which the president had arrived at his

satisfaction.

See also conclusion (6) at 297, para 434:

“Article 74 (2) merely bars an enquiry into the question

whether any and if so, what advice was tendered by the

Ministers to the President. It does not bar the court from calling upon

the Union Council of Ministers (Union of India) to disclose to the court

the material upon which the President had formed the requisite

satisfaction. The material on the basis of which advice was

tendered does not become part of the advice. Even if the

Page 22

material is looked into by or shown to the President, it does not

partake the character of advice.” [emphasis supplied.]

3. Scope of judicial review regarding power of remission

a. It is submitted that the grounds on which an executive decision under

article 72 or article 161 can be challenged, have been authoritatively

laid down in Maru Ram v. Union of India and Kehar Singh v. Union of

India. In view of this settled legal position the contention that

administrative law principles are inapplicable to exercise of powers

under article 72 and article 161 is futile.

b. It is submitted that the exercise of power of remission is subject to

judicial review to the same extent and manner as exercise of the

power of pardon. The contention that as remission is different from

pardon and therefore, different considerations ought to apply, is

fallacious and would lead to an inconsistent application of

constitutional provisions. Acceptance of this submission will permit

the executive to grant a pardon in effect and substance under the

guise of remission or reprieve. Such a contention should therefore be

rejected.

4. Non–exercise of the power of pardon

a. Articles 72 and 161 confer a power or discretion coupled with duty

and obligation. As pointed out hereinabove in the main Written

Submission, para 3 at pp. 3 – 4, public welfare and the welfare of the

convict are guiding principles for the exercise of both the grant and

non – grant of pardon.

b. If in a given case where public welfare and the welfare of the convict

require, rather necessitate that pardon be given, non –grant of pardon

Page 23

would tantamount to failure to perform duty and obligation in

article 72 and 161. For example, suppose if a convict has substantially

served term of imprisonment, is of advanced age and is suffering

from a critical illness and there is no material whatsoever, that if this

convict is released, he will be a menace to society, then in such a

situation, the non – grant of pardon would amount to a failure to

perform duty and obligation in article 72 and 161.

c. It is well settled principle of law that when a capacity or power is

given to a public authority there may be circumstances which couple

the power with a duty to exercise it [see Alcock Ashdown and Company

Limited v. The Chief Revenue Authority AIR 1923 PC 138 at p. 144. This

statement of law was approved by the Supreme Court in The Chief

Controlling Revenue Authority v. The Maharashtra Sugar Mills Limited AIR

1950 SC 218 at p. 221, para 8.

In a given case, the Government may not grant pardon, though it is

eminently required for vindictive and political reasons.

d. As pointed out in the main submissions, the Court of Appeal in New

Zealand in Burt v. Governor General [1992 (3) NZLR 672], held that

non – exercise of power of pardon is not immune from judicial

review, see Submission para 11 at p. 12.

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DEATH PENALTY(WHEN & WHETHER REQUIRED)

DEATH PENALTY(WHEN & WHETHER REQUIRED)

 

Indian penology is basically guided by the principle of punitive justice guarded by deterrence and revenge. This is contrary to the well-settled principles of retribution, rehabilitation, and the dictum that one should hate the sin and not the sinner. There are seven sections in the Indian penal code under which death sentence can be awarded to an accused. These are: Section 121 (waging war against the state), Section 132 (abetting mutiny actually committed), Section 194 (giving or fabricating false evidence upon which an innocent person suffers death), Section 302 (murder which maybe punished with death or life imprisonment), Section 305 (abetment of suicide of a minor or insane, or intoxicated person), Section 396 (dacoity accompanied with murder), and Section 307 (attempt to murder by a person under sentence of imprisonment for life if hurt is caused).

Besides the penal code, there are many other laws like Explosive substances act, Narcotics drugs and psychotropic substances act, Prevention of terrorism act, which, provides for imposition of capital punishment. But it has been repeatedly held by courts that death penalty is the maximum punishment and it cannot be awarded irrationally, arbitrarily, and must be awarded only in the rarest of rare cases. Section 354(3) of the Code of Criminal Procedure makes it obligatory for the trial court to give special reasons for awarding the extreme punishment of death. In the case of Machi singh v. State of Punjab, (1983), the apex court laid down three conditions where death sentence can be awarded, these are:

n      When it’s the rarest of rare cases.

n      When there is something uncommon about the crime, which renders the life imprisonment sentence inadequate, and calls for death sentence.

n      Whether the circumstances of the crime are such that there is no alternative but to impose the death sentence even after maximum weightage has been given to circumstances in favour of the offender.

But after the enactment of legislations like TADA (terrorist and disruptive activities (prevention) act, 1987, death sentence was considered as an appropriate punishment for an accused under the Act. The country and its runners have realized that the biggest threat to the national security is through terrorism.

Ongoing Debate Despite number of decisions of the apex court upholding the constitutional validity of capital punishment in Indian law, the debate must continue and cannot be closed for ever on the abstract doctrine of stare decisis, because the very nature of the problem is such that it must be the subject of review from time to time so as to be in tune with the evolving standards in a maturing society.

Imposition of death sentence is the extreme punishment, which ends a human life, therefore, restrictions have been imposed under the law to give special reasons for awarding the extreme punishment. “These special reasons must relate, not to the crime as such but to the criminal. The crime maybe shocking and yet the criminal may not deserve the death penalty,” Justice V.R. Krishna Iyer commented in Rajendra Prasad v. State of U.P.

Justice A.S. Anand went a step further when he observed in Ravji v. State of Rajasthan, that ‘it’s the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial.”

It was with this intention that the apex court laid down certain principles, which must be applied by the law courts before deciding on the question of sentence. These principles have been broadly divided into two categories, aggravating circumstances and mitigating circumstances. In Shankar Gauri Shankar v. State of Tamil nadu, the court held that, “the choice as to which one of the two punishments provided for murder is the proper one in a given case will depend upon the particular circumstances of the case and the court has to exercise its discretion judicially and on well-recognised principles after balancing all the mitigating and aggravating circumstances of the crime. In Anshad and Others v. State of Karnataka, Justice A.S. Anand, held that “the motive and the manner in which the crime was committed, the weapons used and the extent of brutality or the lack of it are some of the considerations which must be present to the mind of the court.” Among the aggravating circumstances, which call for increased severity of punishment are: the manner in which the offence is perpetrated, whether it be by forcible or fraudulent means, or by aid of accomplices or in the malicious motive by which the offender was actuated, or the consequences to the public or to individual sufferers, or the special necessity which exists in particular cases for counter-acting the temptation to offend, arising from the degree of expected gratification, or the facility of perpetration peculiar to the case. Circumstances, which are to be considered in alleviation of the offender, are:

n      The minority of the offender

n      The old age of the offender

n      The condition of the offender

n      The order of a superior military officer

n      Provocation

n      When offence was committed under a combination of circumstances and influence of motives which are not likely to recur either with respect to the offender or to any other

n      State of health and the sex of the offender

There maybe some circumstances in mitigation of punishment, which should be inflicted:

§ Absence of bad intention

§ Provocation

§ Self-defence

§ Preservation of some near friends

§ Transgression of the limit of self-defence

§ Submission to the menaces

§ Drunkenness

§ Submission to authority

§ Childhood

Along with these circumstances there are certain other circumstances, which are kept in consideration before deciding on the punishment.

Rarest of rare The ethos behind the categorization of a particular case as ‘rarest of rare’ was that the uncontrolled and unguided discretion of judges to impose capital punishment

or imprisonment for life may affect the fundamental freedoms guaranteed under Article 14 of the constitution. Because, two persons found guilty of murder on similar facts are liable to be treated differently- one forfeiting his life and the other suffering merely a sentence of life imprisonment. Further, the provisions of the law do not provide a procedure for trial of factors and circumstances crucial for making the choice between the capital penalty and imprisonment for life.

The trial under the Criminal Procedure Code is limited to the question of guilt. In the absence of any procedure established by law in the matter of sentence, the protection given by Article 21 of the constitution is imminently in danger of arbitrary exercise by the judges.

The responsibility of the judges in that respect is greater, since the question as to whether capital sentence for murder is appropriate in modern times has raised serious controversy the world over, sometimes, with emotional overtones. It is therefore, essential that this constitutional question be answered with objectivity and proper measure of self-restraint.

The Supreme Court of America in the case of Furman v. State of Georgia discussed the validity of the death sentence. Brennan, J., accepted the validity of the challenge in these words:

“If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary justice and if there is no reason to believe that it serves any judicial purpose more effectively than some less severe punishment, then the due infliction of that punishment violates the command of the clause that the state may not inflict inhuman and uncivilized punishments upon those convicted of crimes.”

It is indeed a matter of concern for the legal fraternity in India that instances of misuse of this direction in the matter of sentencing in cases of political importance is increasing and the credibility and integrity of the institution is at stake and further continuation of such gross abuse of the discretionary power will shake the confidence of the people in the judicial system.

International Campaign This situation in Indian judicial system is contrary to the international campaign against death penalty getting momentum the world over. According to the latest statistics, more than 118 countries have abolished death penalty either in law or in practice and only 84 countries have retained it in their law. Studies of crime situation in different parts of the world have shown the ineffectiveness of capital punishment either as a deterrent or as appropriate retribution.

There is larger volume of evidence to compiled in the west by kindly social reformers and research workers to confound those who want to retain the capital punishment.

 

 

Punishment includes following:

 

Firstly, punishment is a privation.

Secondly, it is cohesive.

Thirdly, it is inflicted in the name of the state.

Fourthly, it presupposes rule, there violation more or less a formal determination  of that, expressed in a judgment.

Fifthly it is inflicted upon an offender who has committed a harm and this presupposes a set of values by reference to which both the harm and the punishment are ethically significant.

 

The amount of punishment is not uniform in all cases it varies acc. to the feature of the offence, mental condition, age, intention of the accused, the circumstances in which the offence was committed. Punishment being an undoubtedly solid necessity has been justified by the various theories. The following are the various theories: -

 

1.       Retributive

 

It is probably the most ancient justification for punishment. According to Justice Homes “It is commonly known that the early forms of legal procedure were grounded in vengeance. The principle of an eye for an eye, a tooth for a truth or nail for nail were the basis of criminal administration. It regards punishment as deserved by the individuals for the following reasons:

(a) That he behaved culpably (illegally)

(b) That the penalty will give satisfaction equivalent  to the grievance  caused by his action.

 

(c)               That similar ones have been and will be imposed on similar offenders.

(d)              That he was responsible for his action and performed it with a knowledge of possible consequences of his penalty.

 

 

Retributive punishment satisfies the instinct of revenge or retaliation which exist not merely in the individual wrong but also in the society at large. In the modern time, the idea of private revenge has been discarded and the state has come forward to have the revenge in place of the private individual.

 

Critics of the Retributive Theory

 

The Advocates of this theory point out that the punishment itself is not a remedy for the wrong but it merely aggravates the mischief. The punishment itself is a evil and can be justified only on the ground that it is going to yield better results.

 

2.  Deterrent

 

According to this theory, the object of punishment is not only the prevent the wrong doer of doing a wrong second time and also to make an example to others who have criminal tendency. Salmond considers deterrent aspects of the justice to be the most important for the control of the crime. Among those, who Advocate deterrent punishment because of which social utility, some claim that the infliction of claim upon those convicted of crime served to deter others from crime and that has great value for that reason. According to Benthem a man’s behaviour is governed by pleasure and pain. The pleasure contemplated from a particular aid mainly violation of  a legal rule, may be balanced against the pain anticipated from the same act. Therefore, penalty should be severe so that the pain should exceed the pleasure derived from the violation of the law. The notion that punishment reduced crime is based on the hedonistic assumption that people regulate their behaviour by calculation of pleasure and pain. The deterrent theory was the basis of the punishment in England in the Medieval Period and consequently severe and in human punishments were inflicted even for minor offences. In India, the death sentence of mutilation of limbs was imposed even for petty offences stealing during the Mughal Period. Even today, in most of the Islaim Country, such as Pakistan, Iran, Iraq & Saudi Arabia, the deterrent theory is the basis of Penal Jurisprudence

 

Criticism

 

This theory has been critisize on the ground that it has been proved ineffective in checking crimes and also that excessive harshness of punishment tends to defeat of his own purpose by arousing the sympathy of the public towards those who are given cruel and inhuman punishment. Further, deterrent punishment is likely to harden the criminal instead of creating in his mind the fear of law. There are classes of offenders who are not deterred by punishment. Example hardened criminals.

 

3.     Preventive Theory

 

Another object of punishment is preventive or disabling. The offenders are disable from repeating the crime by punishment like death, forfeiture or exile of an office. By putting the criminal in jail he is prevented from committing another crime.

According to Paton: - the preventive theory concentrate on the prisoner but seeks to prevent him from offending again in future. Death penalty and exile serves the same purpose of disabling the offender.

 

Criticism 

Critics point out that the preventive punishment has the undesirable effect of hardening the first time offenders or juvenile offender by putting them in association of hardened criminals.

 

4.  Reformative Theory

 

This theory speaks of individualization or personalization of punishment. According to this theory, the object of punishment is to reform criminals by creating a conviction that the crime does not pay or by breaking habits that criminals have formed. It regards human behaviour from a deterministic point of view. Individual behaviour is regarded as completely determined as being hereditary or conditional by ones environment. Even if an offender commits a crime under certain circumstances, he does not cease to be human. The object of punishment should be to bring about moral reform of the offender. The criminal must be given some opportunity such as vocational training in art, craft or industry in jail, so that he realizes is worth and become a respectable citizen after his release. While awarding punishment, the Judge should study character and age of the offender, his early breeding, family back ground, his education and environment and the circumstances in which he committed the crime. The object of doing so is to acquaint the Judge with the circumstances under which, the offence is committed so that the punishment may be awarded to suit the ends of justice.

 

Criticism

Critics of this theory point out that if criminals are sent to prison to be reform into good citizen then the prisons will remain no more remain prison and will become dwelling houses. However, the deterrent motive should not be abandoned altogether in favour of the reformative approach. Infact, a perfect system of criminal justice must be based on combination of all the theories of punishment.

 

Relevant case laws with regard to the theories of punishment:

 

In Inder Singh V/s. State

AIR 1978 SC 1091

 

The Supreme Court issued directions to the State Govt. to see that the young accused of the case are not given any degrading work and they are given the benefit of liberal parole every year if their behaviour shows trustworthiness.

 

In Attorney General of India V/s. Laxmi Devi

1986 SC 468

 

The Supreme Court held that it is not the brutality of punishment but its surety that serves a greater deterrent. A Barbaric crime does not have to be visited with a barbaric penalty such as public hanging which will be clearly violative of Article 21 of the Constitution of India.

 

In Sunil Batra V/s. Delhi Admn.

 

It was held that hard labour has to receive a human meaning. A girl student or a male weakling sentence to rigorous imprisonment may not be forced to break stones for 9 hours a day. Sense and sympathy are not enemies of Penal Asylums.

CAPITAL PUNISHMENT IN THE UNITED STATES OF AMERICA

 

 

The word "capital" in "capital punishment" refers to a person's head. In the past, people were often executed by severing their head from their body. Today, in the U.S., most prisoners are executed by lethal injection.

The United States is one of the very few industrialized countries in the world which continues to execute criminals. Further, it is one of a handful of countries in the world which executes mentally ill persons, persons with very low IQ, and child murderers (i.e. persons who were under 18 at the time of their crime).

 

The death penalty in the U.S. is essentially a product of Southern culture. During 2002:

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61 of the 71 executions were in Southern states.

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Outside the South, only three States (California, Ohio and Missouri) executed anyone.

 

From 1976, when executions were resumed, until 2003-JAN-1, there have been 820 executions in the US. This includes 66 during 2001 and 71 in 2002. About two out of three executions are conducted in only five states: Texas, Virginia, Missouri, Florida and Oklahoma. Texas leads the other states in number of killings. In late 2002, there were about 3,697 prisoners sentenced to death in 37 state death rows, and 31 being held by the U.S. government and military.  About 1.5% are women. 102 have been exonerated and freed since 1973, largely after having been proven innocent by DNA evidence.

In spite of the slight increase in U.S. executions between 2001 and 2002, the number of new death sentences decreased significantly. The Washington Post commented in late 2002 that "outside of a few states, the death penalty remains in decline....a few states account for the overwhelming majority of all executions. The more isolated they become, the greater the pressure for reform will be."

When asked whether they prefer to keep or abolish the death penalty, about 60 to 80% of American adults say that they want to retain capital punishment. Numbers vary depending upon the precise wording of the question asked by the pollsters. When asked whether they would like to see executions continue or have them replaced with a system that guaranteed:

 

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life imprisonment with no hope for parole, ever;

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that the inmate would work in the prison to earn money;

bullet

that the money would be directed to helping the family of the person(s) that they killed,

 

 

 

 

The most compelling arguments against capital punishment can be made on the basis of its actual administration in our society. I will list five of the usual points.

1. The possibility of error. Sometimes a person might be put to death who is innocent.

2. Unfair administration. Capital punishment is inflicted disproportionately on the poor and minorities.

3. Weakness of the argument from deterrence. The claim that the threat of capital punishment reduces violent crime is inconclusive, certainly not proven, extremely difficult to disprove, and morally suspect if any case.

4. The length of stay on death row. If there were ever any validity to the deterrence argument, it is negated by the endless appeals, delays, technicalities, and retrials that keep persons condemned to death waiting for execution for years on end. One of the strongest arguments right now against capital punishment is that we are too incompetent to carry it out. That incompetence becomes another injustice.

5. Mitigating circumstances. Persons who commit vicious crimes have often suffered from neglect, emotional trauma, violence, cruelty, abandonment, lack of love, and a host of destructive social conditions. These extenuating circumstances may have damaged their humanity to the point that it is unfair to hold them fully accountable for their wrongdoing. Corporate responsibility somehow has to be factored in to some degree. No greater challenge to social wisdom exists than this.

The conclusion of the matter is that the present practice of capital punishment is a moral disgrace. The irony is that the very societies that have the least right to inflict it are precisely the ones most likely to do so. The compounding irony is that the economic malfunctions and cultural diseases in those same societies contribute to the violence that makes it necessary to unleash even more repression and brutality against its unruly citizens to preserve order and stave off chaos. To the degree that society provides opportunities for all citizens to achieve a good life in a sensible culture, it is reasonable to believe that the demand for capital punishment will be reduced or eliminated. The fact that our prisons are so full is the most eloquent testimony imaginable of our dismal failure to create a good society. Massive incarceration indicates the bankruptcy of social wisdom and social will. It points to the shallowness of our dedication to solving the basic problems of poverty, moral decay, meaninglessness, and social discord. Meanwhile, our leaders divert our attention with the alluring fantasy that capital punishment will make our citizens more secure against violent crime.

 

The first known execution in the territory now known as the United States of America was of Daniel Frank, put to death in 1622 in the Colony of Virginia for the crime of theft. Since then the death penalty has almost always been a feature of the criminal justice system, first in the American colonies and then, after independence, in the U.S. This page focuses on the history of the death penalty in the U.S. beginning in 1930, when death penalty statistics first began to be collected on a regular basis. It provides links to numerous important U.S. Supreme Court decisions on capital punishment, documents on recent developments in the status of the death penalty nationally, and other historical resources on the death penalty in the U.S. and elsewhere.
     Disclaimer: The Justice Center is not responsible for the content of any outside site linked here, nor does a listing here imply an endorsement of a site's opinions or content or a guarantee of its accuracy.

The Death Penalty in the U.S.

A brief history of the death penalty in the U.S. since 1930, when death penalty statistics began to be collected on a regular basis. This history emphasize death penalty statistics and the constitutional history of the death penalty and is based primarily on the annual capital punishment bulletins of the Bureau of Justice Statistics, U.S. Department of Justice. For further information, see the Death Penalty Information Center's History of the Death Penalty.

1930-1967

   

 

From 1930, the first year for which statistics are readily available from the Bureau of Justice Statistics, to 1967, 3,859 persons were executed under civil (that is, nonmilitary) jurisdiction in the United States.

 

 

Moratorium on executions

   

 

By the end of the 1960s, all but 10 states had laws authorizing capital punishment, but strong pressure by forces opposed to the death penalty resulted in an unofficial moratorium on executions for several years, with the last execution during this period taking place in 1967. Prior to this, an average of 130 executions per year occurred.

Furman invalidates mostdeath penalty laws

 

 

Legal challenges to the death penalty culminated in a 5-4 U.S. Supreme Court decision Furman v. Georgia, 408 U.S. 153 (1972), which struck down federal and state capital punishment laws permitting wide discretion in the application of the death penalty. Characterizing these laws as "arbitrary and capricious," the majority ruled that they constituted cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution and the due process guarantees of the Fourteenth Amendment. Only two of the justices concurring in the decision (Justices Brennan and Marshall) declared capital punishment to be unconstitutional in all instances, however; other concurrences by Justices Douglas, Stewart, and White focused on the abitrariness of the application of capital punishment, including the appearance of racial bias against black defendants. In all, nine separate opinions -- five invalidating existing laws and four arguing for their retention -- were written by the nine Supreme Court justices spelling out their different views on what constituted the "cruel and unusual punishment" prohibited by the Eighth Amendment.

 

 

New laws upheld

 

More than 600 death row inmates who had been sentenced to death between 1967 and 1972 had their death sentences lifted as a result of Furman, but the numbers quickly began to build up again as states enacted revised legislation tailored to satisfy the Supreme Court's objections to arbitrary imposition of death sentences. These laws were of two major types:
     The first type, providing for guided discretion, was upheld by the Supreme Court in three related cases: Gregg v. Georgia, 428 U.S. 153 (1976), Jurek v. Texas, 428 U.S. 262 (1976), and Proffitt v. Florida, 428 U.S. 242 (1976). The Georgia, Texas, and Florida statutes validated by the Supreme Court afforded Table: Executions post-Furmansentencing courts the discretion to impose death sentences for specified crimes and provided for two-stage, or "bifurcated," trials, involving in the first stage the determination of a defendant's guilt or innocence and, in the second, determination of the sentence after consideration of aggravating and mitigating circumstances. In Georgia and Texas, the final sentencing decision rested with the jury, and in Florida with the judge.
     Those laws which provided a mandatory death penalty for specific crimes, and allowing no judicial or jury discretion beyond the determination of guilt, were declared unconstitutional in Woodson v. North Carolina, 428 U.S. 280 (1976) and Roberts v. Louisiana, 428 U.S. 325 (1976). These rulings led directly to the invalidation of mandatory death penalty statutes in 21 states, and resulted in the modification of the sentences of hundreds of offenders from death to life imprisonment.

 

Executions resume

 

The first execution under the new death penalty laws took place on January 17, 1977, when convicted murdered Gary Gilmore was executed by firing squad in Utah. Gilmore's was the first execution in the United States since 1967. Two prisoners were executed in 1979; one in 1981; two in 1982; and five in 1983. Executions increased dramatically in 1984, with 21 in that year, and there have been at least 10 executions in the U.S. every year since. There were 74 executions in 1997. From 1977 to 1997, a total of 432 executions took place. Of the executed prisoners during this period, 266 were white, 161 were black, and five were of other races. By the end of 1997, 38 states and the federal government had capital punishment law; 12 states (including Alaska) have no death penalty. (Bureau of Justice Statistics annual bulletins on capital punishment provide current information on U.S. jurisdictions which authorize the death penalty.) By the end of 1996, 3,219 prisoners were under sentence of death, including 3,208 in 34 states and 11 under federal jurisdiction. All were convicted of murder.

 

Supreme Court decisions refine death penalty laws

   

In 1977, the Supreme Court declared in Coker v. Georgia, 433 U.S. 584 (1977) that applying the death penalty in rape cases was unconstitutional because the sentence was disproportionate to the crime. Coker resulted in the removal of twenty inmates -- three whites and 17 blacks -- awaiting execution on rape convictions from death rows around the country.
     In Lockett v. Ohio, 438 U.S. 586 (1978), the high court forced a number of states to again revise their death penalty statutes by ruling that the sentencing authority in a capital case must consider every possible mitigating factor to the crime rather than limiting, as Ohio had, the mitigating factors that could be considered to a specific list. For additional Supreme Court decisions, see Selected Supreme Court Decisions, below.

 

Current Status

 

Since the 1976 Gregg decision upholding the constitutionality of Georgia's death penalty law, numerous states have reinstated capital punishment in their statutes. The most recent state to enact a death penalty law was New York in 1995. As of January 1998, 38 states and the federal government have capital punishment laws in effect. Alaska, eleven other states -- Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin -- and the District of Columbia do not have a death penalty. Sites providing information on the current status of the death penalty throughout the nation are available on the Death Penalty Statistics page.

Refining Death Penalty Laws

  • Woodson v. North Carolina, 428 U.S. 280 (1976): Mandatory death penalty laws declared unconstitutional.
  • Coker v. Georgia, 433 U.S. 584 (1977): Death penalty for the rape of adult women declared unconstitutional because the sentence was disproportionate to the crime. Twenty prisoners from around the country were removed from death row as a consequence of this decision.
  • Lockett v. Ohio, 438 U.S. 586 (1978): Sentencing authorities must have the discretion to consider every possible mitigating factor, rather than being limited to a specific list of factors to consider. This decision resulted in the release of 99 prisoners from Ohio's death row. See also Bell v. Ohio, 438 U.S. 637 (1978).
  • Godfrey v. Georgia, 446 U.S. 420 (1980): Sent back for retrial several cases on grounds of too broad and vague an application of the provision stipulating the death penalty if the offense was "outrageously or wantonly vile, horrible, or inhumane, in that it involved torture, depravity of mind, or an aggravated battery to the victim." The ruling did not affect the statute itself, but the court held that the relevant facts in Godfrey were not substantially different from other cases in which the provision was not applied.
  • Beck v. Alabama, 447 U.S. 625 (1980): Struck a portion of Alabama's death penalty law that blocked juries from convicting defendants of an included lesser offense rather than the capital crime itself; juries were required to either convict a defendant of the capital crime or to acquit him.
  • Adams v. Texas, 448 U.S. 38 (1980): Prospective jurors cannot be excluded from service in capital trials because they would be "affected" by the possibility of a capital sentence.
  • Hopper v. Evans, 456 U.S. 605 (1982): Upheld the death sentence of a defendant convicted under the Alabama statute partially struck down in Beck v. Alabama. The court held that, since a lesser offense was not an issue, the law's failure to allow for it did not prejudice the case; i.e., the conviction of a capital prisoner tried under a partially flawed statute need not be reversed unless it was actually touched by the imperfection. Evans was executed on April 22, 1983.
  • Enmund v. Florida, 458 U.S. 782 (1982): Struck down the death sentence of a defendant who had not intended, attempted, or actually killed the victim of a robbery in which he was an accomplice.
  • Pulley v. Harris, 465 U.S. 37 (1984): Upheld the death penalty in a California case, holding that there was no constitutional requirement for a proportionality review -- that is, a review of sentences in comparable cases throughout a state to deterimine if similar cases are handled in a similar way -- though many state death penalty law provide for such a review.
  • Ford v. Wainwright, 477 U.S. 399 (1986): Held that is is unconstitutional to execute a person who is insane.
  • McCleskey v. Kemp, 481 U.S. 279 (1987): Rejected the claim that death penalty sentencing in Georgia was administered in a racially biased manner in violation of the Eighth and Fourteenth Amendments, despite statistical data on capital sentences in Georgia to which showed that black defendants convicted of killing white victims were more likely to be given the death sentence than other defendants.
  • Thompson v. Oklahoma, 487 U.S. 815 (1988): Ruled that youths younger than 16 years old at the time of their offense cannot be constitutionally executed.
  • Penry v. Lynaugh, 492 U.S. 302 (1989): Ruled that it is not categorically unconstitutional to execute a mentally retarded person found guilty of capital murder. Some states have enacted laws specifically excluding capital sentencing for persons determined to be mentally retarded.
  • Stanford v. Kentucky, 492 U.S. 361 (1989): Reaffirmed the court's opinion that it was not unconstitutional to execute youths at least 16 years old at the time of committing a capital offense. A number of states define minimum ages authorized for capital punishment.
  • United States of America: Developments on the Death Penalty During 1993: London: Amnesty International, 1994.

 

Historical Resources

Other resources on the history of the death penalty
in the U.S. and in other nations.

 

United States

  • The Execution of Caleb Adams: This site chronicles the life, crime, trial, and execution by hanging of Caleb Adams, a nineteen-year-old convicted in 1803 of murdering a six-year-old boy.
  • "Dirty Details: Executing U.S. Soldiers During World War II": by J. Robert Lilly. 28 November 1995; earlier draft presented at the annual meeting of the American Society of Criminology, Boston, November, 1995. Part of a long-term examination of the execution of U.S. soldiers during World War II, this paper describes the crimes, defendants, and victims for 18 military executions that took place in England, 1943-1945.
  • "Executing U.S. Soldiers in England, WWII: The Power of Command Influence and Sexual Racism": by J. Robert Lilly and J. Michael Thompson. 31 August 1995. The Visiting Forces Act of 1942 permitted the American military during World War II to use capital punishment in England as an extension of discipline. The authors argue that the act's purpose was to control a perceived danger: the socializing of African American troops with British females, and the possible explosive violence between Caucasian and African American troops.

 

 

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