No. 15-650
================================================================

In The

Supreme Court of the United States
-----------------------------------------------------------------SHONDA WALTER,
Petitioner,
v.
COMMONWEALTH OF PENNSYLVANIA,
Respondent.
-----------------------------------------------------------------On Petition For Writ Of Certiorari To
The Supreme Court Of Pennsylvania
-----------------------------------------------------------------BRIEF OF THE BAR OF IRELAND,
THE BAR HUMAN RIGHTS COMMITTEE
OF ENGLAND AND WALES, THE
INTERNATIONAL BAR ASSOCIATION’S
HUMAN RIGHTS INSTITUTE, THE PARIS
BAR ASSOCIATION, AS AMICI CURIAE
IN SUPPORT OF PETITIONER
-----------------------------------------------------------------PROF. THOMAS H. SPEEDY RICE*
Counsel of Record on Behalf of Amici Curiae
WASHINGTON & LEE UNIVERSITY
SCHOOL OF LAW
Sydney Lewis Hall
Lexington, VA 24450
(540) 458-8521
RiceS@wlu.edu
*Member of the Bar of this Court
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM

 i
CAPITAL CASE
QUESTION PRESENTED
Whether, in all cases, the imposition of a sentence of death violates the Eighth Amendment’s prohibition against cruel and unusual punishments.

 ii
TABLE OF CONTENTS
Page
AMICUS BRIEF ON BEHALF OF PETITIONER
WALTER ..........................................................

1

STATEMENT OF INTEREST .............................

1

1.

The Bar of Ireland .....................................

1

2.

The Bar Human Rights Committee of
England and Wales ....................................

2

The International Bar Association’s Human
Rights Institute (IBAHRI) .........................

2

The Paris Bar Association .........................

3

STATEMENT OF THE CASE .............................

4

SUMMARY OF ARGUMENT ..............................

4

ARGUMENT ........................................................

5

3.
4.

I.

THE DEATH PENALTY IS CRUEL
AND UNUSUAL PUNISHMENT UNDER
THE EIGHTH AMENDMENT TO THE
UNITED STATES CONSTITUTION.........

5

A. THE LAW AND OPINIONS OF THE
UNITED KINGDOM ARE PARTICULARLY RELEVANT TO THIS
COURT’S EIGHTH AMENDMENT
ANALYSIS ...........................................

5

B. THE LAW AND OPINIONS OF
OTHER COMMON LAW COUNTRIES
ARE RELEVANT TO THIS COURT’S
EIGHTH AMENDMENT ANALYSIS .... 12
1. South Africa .................................... 12
2. Canada ............................................ 16

 iii
TABLE OF CONTENTS – Continued
Page
3. Ireland ............................................ 18
4. Australia ......................................... 19
CONCLUSION..................................................... 21

 iv
TABLE OF AUTHORITIES
Page
CASES
Browning-Ferris Indus. of Vermont, Inc. v.
Kelco Disposal, Inc., 492 U.S. 257 (1989) .................6
Deck v. Missouri, 544 U.S. 622 (2005) .........................2
Ferguson v. Georgia, 365 U.S. 570 (1961) ....................6
Furman v. Georgia, 408 U.S. 238 (1972) .............14, 22
Kindler v. Canada (Minister of Justice) [1991] 2
S.C.R. 779 (Can.) .....................................................17
Lawrence v. Texas, 539 U.S. 558 (2003) .......................5
Miller v. Alabama, 132 S. Ct. 2455 (2012)...................2
R v. Hallam [2012] EWCA (Crim) 1158 (unreported, 17th May 2012) ...........................................10
Roper v. Simmons, 543 U.S. 551 (2005) ......... 2, 5, 6, 22
State v. Makwanyane and Another 1995 (3) SA
391 (CC) (S. Afr.) ......................................... 12, 14, 15
United States v. Burns [2001] 1 S.C.R. 283
(Can.) .................................................................16, 17
United States v. Lee, 106 U.S. 196 (1882) ....................6
CONSTITUTIONAL PROVISIONS
Canadian Charter of Rights and Freedoms,
Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act, 1982, c 11
(U.K.) .......................................................................16
Canadian Charter of Rights and Freedoms,
s.12.....................................................................16, 17

 v
TABLE OF AUTHORITIES – Continued
Page
Canadian Charter of Rights and Freedoms, s.7 ........17
Constitution of Ireland, Article 15.5.2 .......................18
South African Constitution, section 11(2)............13, 14
U.S. Const., amend. VIII ........................ 4, 5, 21, 22, 23
STATUTES
Bill of Rights 1689, 1 W. & M., c. 2, §10, in 3
Eng. Stat. at Large 441 (1770) ...............................22
Criminal Justice Act 1990 (Act No. 16/1990)
(Ir.) ...........................................................................18
Death Penalty Abolition Act 1973 (Cth) (Austl.) .......19
Explanatory Memorandum, Crimes Legislation
Amendment (Torture Prohibition and Death
Penalty Abolition) Bill 2009 (Cth) (Austl.) .............20
Homicide Act 1957, 5 & 6 Eliz. 2 c. 11 (Eng.) ..........7, 8
Murder (Abolition of the Death Penalty) Act
1965, c. 71 (Eng.) ...................................................8, 9
Twenty-First Amendment of the Irish Constitutional Act 2001, Article 15.5.2 .........................18
RULES
Supreme Court Rule 37 ................................................1
OTHER AUTHORITIES
1989 Second Optional Protocol to the International Covenant on Civil and Political Rights .......19

 vi
TABLE OF AUTHORITIES – Continued
Page
2010 Media Release: Commission Welcomes Passage of Law Outlawing Torture and Prohibiting the Death Penalty, Australian Human
Rights Commission (Mar. 11, 2010) .......................20
268 Parl Deb HL (5th ser.) (1965) col. 480 (UK) .........8
269 Parl Deb HL (5th ser.) (1965) col. 552 (UK) .........9
548 Parl Deb HC (5th ser.) (1956) col. 2536
(UK) ...........................................................................6
564 Parl Deb HC (5th ser.) (1957) col. 469 (UK) .........7
704 Parl Deb HC (5th ser.) (1964) col. 952 (UK) .........9
704 Parl Deb HC (5th ser.) (1964) col. 966 (UK) .........9
704 Parl Deb HC (5th ser.) (1964) col. 976 (UK) .........9
793 Parl Deb HC (5th ser.) (1969) col. 1169
(UK) .........................................................................10
Chart of Signatures and Ratifications of Treaty
187, Council of Europe ...................................... 11, 19
Dep’t of Foreign Affairs and Trade, Submission
No. 35 to Hum. Rights Sub-Comm. on the
Joint Standing Comm. on Foreign Affairs,
Defence and Trade: Australia’s Advocacy for
the Abolition of the Death Penalty 3 (2015)......20, 21
English Declaration of Rights of 1689 ...................5, 21
European Convention for the Protection of
Human Rights and Fundamental Freedoms,
Protocol No. 13 ..................................................10, 18

 vii
TABLE OF AUTHORITIES – Continued
Page
Evelyn Gibson & S. Klein, Murder, 1957 to
1968: A Home Office Statistical Division Report on Murder in England and Wales, table
1 (1969) ......................................................................8
Explanatory Memorandum, Crimes Legislation
Amendment (Torture Prohibition and Death
Penalty Abolition) Bill 2009 (Cth) (Austl.) .............20
Motion on Capital Punishment, The Times,
May 13, 1959 .............................................................8
Remarks by President Obama and Prime Minister Brown After Meeting, The White House
(Mar. 3, 2009) ............................................................5
The Law Council of Australia and the Australian Bar Association, Submission No. 34 to
Hum. Rights Sub-Comm. of the Joint Standing Comm. on Foreign Affairs, Defence and
Trade: Australia’s Advocacy for the Abolition
of the Death Penalty 4 (2015) ..................................19
The Most Important Facts of 2014 (And the
First Six Months of 2015): Developments on
the Death Penalty Worldwide, Hands Off
Cain (2015) ..............................................................12

 1
AMICUS BRIEF ON BEHALF
OF PETITIONER WALTER
STATEMENT OF INTEREST1
1.

The Bar of Ireland
The Bar of Ireland is the representative body
for the barristers’ profession in Ireland and
is governed by a constitution. It is the independent referral bar of Ireland and has a
current membership of approximately 2,300
practising barristers. The business of the
Council is conducted by committees, one of
which is the Human Rights Committee of the
Bar of Ireland. The Human Rights Committee seeks to advance and promote the rule of
law and access to justice both nationally and
internationally in accordance with national
and international jurisprudence, conventions
and protocols. It aims to do this by identifying instances where human rights are at risk
and pro-actively supports interventions seeking to vindicate those rights. This is done
with the highest standards of ethical and
professional conduct in accordance with the
Constitution of the Bar of Ireland.

1

This brief is submitted pursuant to Supreme Court Rule 37
with the consent of Petitioner, Shonda Walter, and of Respondent,
the Commonwealth of Pennsylvania. The parties were given
timely notice. This brief has been written by the signatories
hereto. Neither Petitioner nor counsel for Petitioner has contributed any funds for the preparation or production of this brief.

 2
2.

The Bar Human Rights Committee of
England and Wales
The Bar Human Rights Committee of England and Wales (BHRC) is the international
human rights arm of the Bar of England and
Wales. It is an independent body of legal
practitioners concerned with the protection
of rights, defending the rule of law, and ensuring the fair administration of justice. The
BHRC regularly appears in cases where there
are matters of human rights concern, and
has experience in legal systems throughout
the world. The BHRC has previously appeared as amicus curiae in cases before the
United States Supreme Court, including
Miller v. Alabama, 132 S. Ct. 2455 (2012);
Roper v. Simmons, 543 U.S. 551 (2005); and
Deck v. Missouri, 544 U.S. 622 (2005).

3.

The International Bar Association’s
Human Rights Institute (IBAHRI)
The International Bar Association’s Human
Rights Institute (IBAHRI) is the human
rights arm of the International Bar Association, the world’s largest professional association of lawyers, bar associations and law
societies. IBAHRI provides human rights
training and technical assistance to legal
practitioners and institutions, building their
capacity to promote and protect human rights
under a just rule of law. It also undertakes
human rights fact-finding and trial observations. In addition, it undertakes advocacy on

 3
several thematic issues, including the abolition of the death penalty. It is currently researching the issue of the death penalty
under Islamic Law and has run training
seminars with Moroccan lawyers on this
matter. It has previously appeared as amicus
curiae before courts in several jurisdictions,
including the U.S. Supreme Court in the case
concerning Guantanamo Bay.
4.

The Paris Bar Association
The Paris Bar comprises 25,000 members.
Traditionally, the Paris Bar is often approached when human rights are in danger.
In the field of Human Rights Defence, the
Paris Bar cooperates and exchanges information with numerous human rights
associations. The Paris Bar also cooperates
with numerous organizations in France and
across Europe on behalf of its members to
defend their use of validated scientific and
medical methodologies, including in determinations of intellectual disability in appropriate cases. The actions undertaken by the
Paris Bar are particularly aimed to support
lawyers and the freedom, independence and
dignity of our profession.
------------------------------------------------------------------

 4
STATEMENT OF THE CASE
Amici adopt the Opinions Below, Jurisdiction,
Constitutional Provisions Involved, and Statement of
Facts in the Petition for Writ of Certiorari filed by
Shonda Walter and files this amicus curiae brief on
behalf of Petitioner.
------------------------------------------------------------------

SUMMARY OF ARGUMENT
Amici urge the Court to consider the evolving
standard of decency demonstrated in the recent
history of abolition of the death penalty in relevant
common law countries when deciding on the Writ of
Certiorari submitted by Petitioner. International and
foreign authorities are of value in this Court’s Constitutional analysis of the death penalty because it
allows consideration of how other jurisdictions have
dealt with this issue.
Common law jurisdictions such as the United
Kingdom, South Africa, Canada, Ireland and Australia have decided that the death penalty is a cruel and
unusual punishment that goes against the basic
ideals of the Right to Life and human dignity, and is
inherently flawed in its application. The same reasoning is applicable to the Eighth Amendment and
compels a determination that the prohibition on cruel
and unusual punishments bars the use of the death
penalty in the American legal systems.
------------------------------------------------------------------

 5
ARGUMENT
I.

THE DEATH PENALTY IS CRUEL AND
UNUSUAL PUNISHMENT UNDER THE
EIGHTH AMENDMENT TO THE UNITED
STATES CONSTITUTION
A. THE LAW AND OPINIONS OF THE
UNITED KINGDOM ARE PARTICULARLY RELEVANT TO THIS COURT’S
EIGHTH AMENDMENT ANALYSIS

A majority of this Court has noted that the
United Kingdom’s experience is instructive in interpreting the Eighth Amendment not just because of
the “historic ties” between our two countries but
because the Eighth Amendment was derived from the
English Declaration of Rights of 1689. See Roper v.
Simmons, 543 U.S. 551, 577 (2005); Lawrence v. Texas,
539 U.S. 558, 576 (2003). The close relationship
between the United Kingdom and the United States
spans over two centuries and recent developments in
world affairs have made that relationship even closer.
President Obama has noted, “[T]he special relationship between the United States and Great Britain is
one that is not just important to me, it’s important to
the American people. And it is sustained by a common
language, a common culture; our legal system is directly inherited from the English system; our system of
government reflects many of these same values. . . .”
Remarks by President Obama and Prime Minister
Brown After Meeting, The White House (Mar. 3, 2009),
https://www.whitehouse.gov/the-press-office/remarkspresident-obama-and-prime-minister-brown-after-meeting.

 6
The shared fundamental values and common law
heritage of the United States and the United Kingdom has been consistently recognized by this Court.
See, e.g., Roper, 543 U.S. at 577; Browning-Ferris
Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492
U.S. 257, 273 (1989); Ferguson v. Georgia, 365 U.S.
570, 582 (1961); United States v. Lee, 106 U.S. 196,
205 (1882) (noting American legal doctrines “derived
from the laws and practices of our English ancestors”). Consequently, the experience of the United
Kingdom with abolition of the death penalty is instructive and provides guidance for this Court.
Fifty years ago, in November 1965, the United
Kingdom Parliament voted to abolish the death
penalty in Great Britain, namely England, Scotland
and Wales.2 Abolition followed a lengthy legislative
and judicial process that saw the United Kingdom’s
lower chambers, the House of Commons, vote on
several occasions in 1956 and 1957 to abolish the
death penalty. In the debate on 16 February 1956,
Sidney Silverman MP, the sponsor of the first abolition bill, concluded his speech by saying, “Let us all
as free men, free women, free members of Parliament
in a free society, go forward and wipe this dark stain
from our statute book forever.”3 In the debate on the
2

At the time Northern Ireland, also part of the United
Kingdom, had a form of regional autonomy and was not governed by Westminster. The death penalty in Northern Ireland
was not formally abolished until 1973.
3
548 Parl Deb HC (5th ser.) (1956) col. 2536 (UK).

 7
third reading of the Homicide Bill on 6 February
1957, Sidney Silverman MP described the death
penalty as a punishment that “no longer accords with
the needs or the true interests of a civilised society.”4
Complete abolition was defeated in the House of
Lords but the debates led to a compromise in passing
the Homicide Act 1957, 5 & 6 Eliz. 2 c. 11 (Eng.). The
Homicide Act 1957 abolished the death penalty for
most offenses of murder while retaining it as a punishment in a few special circumstances. The Act
proved very unsatisfactory in operation. The murder
of a child was made a non-capital offense as was
murder by stabbing or bludgeoning a person to death,
but killing with a firearm was a capital offense.
Supporters of capital punishment believed the Act
failed to provide adequate protection for the public.
Abolitionists thought the Act merely illustrated the
increasingly random and arbitrary nature of the
death penalty in the United Kingdom. One motion
before the House of Commons said the following:
This House regards with the deepest anxiety
and distress the anomalies of the Homicide
Act of 1957 which discriminates between
capital and non-capital murder by arbitrary
categories which bear no relationship to the
comparative wickedness of the crime and are

4

564 Parl Deb HC (5th ser.) (1957) col. 469 (UK).

 8
an abiding offence to the sense of justice and
good sense of the community.5
The increasingly unsatisfactory situation created
by the Homicide Act only added to the calls for the
United Kingdom to finally abolish the death penalty.
Lord Parker, the Lord Chief Justice at the time, said
that it was the absurdities of the Homicide Act that
had turned him from a supporter of the death penalty
6
into a supporter of abolition. In these circumstances,
the Murder (Abolition of the Death Penalty) Act 1965,
c. 71 (Eng.) was finally passed by Parliament in
November 1965. The reasons cited for abolition were
the same commonly heard in the U.S. today, but, in
particular, it was the declining use of the death
penalty that demonstrated it as an ineffective and
unusual punishment. In 1962, 1963 and 1964 there
had been only two executions in each year even
though there had been 129 murders in 1962, 122 in
1963 and 135 in 1964.7
Indicative of an evolving standard of decency in
the United Kingdom, debate in the House of Commons demonstrated the view of various Members of
Parliament that capital punishment “encourages a
spirit of retribution” that was “morally unhealthy for
5

Motion on Capital Punishment, The Times, May 13, 1959,

at 14.
6

See 268 Parl Deb HL (5th ser.) (1965) col. 480 (UK).
Evelyn Gibson & S. Klein, Murder, 1957 to 1968: A Home
Office Statistical Division Report on Murder in England and
Wales, table 1 (1969).
7

 9
the country and the people in it.”8 The death penalty
itself was described as “this degrading penalty”9 and
as a “barbaric method of punishment, which . . .
reduces the conceptions of the sanctity of human life
and society. . . .”10 In the House of Lords, the Lord
Chancellor stated that it was his view that “the
deliberate putting to death of a man or a woman in
cold blood as a punishment for crime is no longer
11
consistent with our own self-respect.”
Once passed, the effect of the 1965 Murder
(Abolition of the Death Penalty) Act, supra was formally to suspend the death penalty for a period of five
years. Shortly after the passage of the Act, three
police officers were shot dead in an incident in London and two of Britain’s most notorious murderers,
Ian Brady and Myra Hindley, were tried for a shocking series of child murders. Despite these notorious
murders, there was no sudden increase in the public
demand for the death penalty. Accordingly, when, in
1969, the government proposed the immediate final
abolition of the death penalty a year ahead of schedule, Parliament agreed. In supporting the proposition, the Home Secretary James Callaghan MP said
that “capital punishment lowered the moral standard
8

704 Parl Deb HC (5th ser.) (1964) col. 952 (UK).
704 Parl Deb HC (5th ser.) (1964) col. 966 (UK).
10
704 Parl Deb HC (5th ser.) (1964) col. 976 (UK).
11
269 Parl Deb HL (5th ser.) (1965) col. 552 (UK). See also:
http://www.deathpenaltyproject.org/wp-content/uploads/2015/11/
DPP-50-Years-on-pp1-68-1.pdf.
9

 10
of the whole community. . . . When society exacts this
penalty it acts on the same level as the murderer
himself.”12
Today there is, in reality, no prospect of the
United Kingdom restoring the death penalty. A series
of grave miscarriages of justice in cases of murder
where those convicted would have been executed
under the old law such as the Birmingham Six and
the Guildford Four are widely known in the United
Kingdom. Both cases arose out of the struggle for civil
rights in Northern Ireland in the 1960s and 1970s.
13
Recently, cases such as that of Sam Hallam have
highlighted to the public in the United Kingdom that
the risk of convicting an innocent person is very real
and that the United Kingdom would have executed
innocent persons if the death penalty had still been
available. The United Kingdom has also committed
itself to never returning to the use of the death penalty by ratifying the Council of Europe’s regional document for complete abolition – Protocol No. 13 to the
European Convention for the Protection of Human

12

793 Parl Deb HC (5th ser.) (1969) col. 1169 (UK).
R v. Hallam [2012] EWCA (Crim) 1158 (unreported, 17th
May 2012) (Hallam was convicted of murder and his direct
appeal refused appeal, but he was subsequently freed after
seven years’ imprisonment following a further appeal, due to the
failure of the police to disclose at trial evidence of a legitimate
alibi).
13

 11
Rights and Fundamental Freedoms, abolishing the
death penalty in all circumstances.14
There is little doubt that the United Kingdom’s
abolition of capital punishment gives the United
Kingdom greater moral authority when challenging
the continuing use of the death penalty in countries
such as Iran, Saudi Arabia and China. Given the
strong relationship that exists between the United
States and the United Kingdom, based in substantial
part on a shared legal heritage as well as a common
striving to high moral values, it would undoubtedly
be seen as an affirmation of the strength of that
relationship as well as a commitment to evolving and
modern standards of decency for the United States to
take this opportunity to join the growing community
of nations that have rejected the use of capital punishment.15

14

Chart of Signatures and Ratifications of Treaty 187,
Council of Europe, http://www.coe.int/en/web/conventions/searchon-states/-/conventions/treaty/country/UK?p_auth=HcuMgZ7i
(showing that England signed on Mar. 5, 2002 and ratified on
Oct. 10, 2003, and it entered into force on Jan. 2, 2004).
15
Of 198 Countries, “there are currently 161 countries and
territories that, to different extents, have decided to renounce
the death penalty. Of these: 103 are totally abolitionist; 6 are
abolitionist for ordinary crimes; 6 have a moratorium on executions in place and 46 are de facto abolitionist (i.e., Countries
that have not carried out any executions for at least 10 years or
countries which have binding obligations not to use the death
penalty). Countries retaining the death penalty worldwide
declined to 37 (as of 30 June 2015), compared to 39 in 2013.
Retentionist countries have gradually declined over the last few
(Continued on following page)

 12
B. THE LAW AND OPINIONS OF OTHER
COMMON LAW COUNTRIES ARE RELEVANT TO THIS COURT’S EIGHTH
AMENDMENT ANALYSIS
1. South Africa
In 1995 the Constitutional Court of the Republic
of South Africa reviewed the death penalty in South
Africa in light of Chapter Three of the South African
Constitution which sets out the fundamental rights to
which every South African is entitled.16 The Constitutional Court noted in State v. Makwanyane and
Another: “In section 11(2), it prohibits ‘cruel, inhuman
or degrading treatment or punishment.’ There is no
definition of what is to be regarded as ‘cruel, inhuman or degrading’ and we therefore have to give
meaning to these words ourselves.”17
Even with our different histories and experiences
the common law and rule of law find common ground
in the judicial approaches of the U.S. Supreme Court
and the South African Constitutional Court. The
Justices in Makwanyane had to wrestle with many of
years: there were 40 in 2012, 43 in 2011, 42 in 2010, 45 in 2009,
48 in 2008, 49 in 2007, 51 in 2006 and 54 in 2005.” The Most
Important Facts of 2014 (And the First Six Months of 2015):
Developments on the Death Penalty Worldwide, Hands Off Cain
(2015), http://www.handsoffcain.info/bancadati/index.php?tipotema=
arg&idtema=19305152.
16
State v. Makwanyane and Another 1995 (3) SA 391 (CC)
(S. Afr.), http://www.saflii.org/za/cases/ZACC/1995/3.html.
17
Id. at para. 8.

 13
the common issues in death penalty analysis Amici
are asking this Court to consider. Focusing on Section
11(2) of the South African Constitution, which prohibits “Cruel, Inhuman or Degrading Punishment,” the
Court noted:
Death is the most extreme form of punishment to which a convicted criminal can be
subjected. Its execution is final and irrevocable. It puts an end not only to the right to life
itself, but to all other personal rights which
had vested in the deceased under Chapter
Three of the Constitution. It leaves nothing
except the memory in others of what has
been and the property that passes to the
deceased’s heirs. In the ordinary meaning of
the words, the death sentence is undoubtedly
a cruel punishment. Once sentenced, the
prisoner waits on death row in the company
of other prisoners under sentence of death,
for the processes of their appeals and the
procedures for clemency to be carried out.
Throughout this period, those who remain on
death row are uncertain of their fate, not
knowing whether they will ultimately be
reprieved or taken to the gallows. Death is a
cruel penalty and the legal processes which
necessarily involve waiting in uncertainty for
the sentence to be set aside or carried out,
add to the cruelty. It is also an inhuman punishment for it ‘involves, by its very nature, a
denial of the executed person’s humanity,’
and it is degrading because it strips the
convicted person of all dignity and treats him
or her as an object to be eliminated by the

 14
state. The question is not, however, whether
the death sentence is a cruel, inhuman or
degrading punishment in the ordinary meaning of these words but whether it is a cruel,
inhuman or degrading punishment within
the meaning of section 11(2) of our Constitution. The accused, who rely on section 11(2)
of the Constitution, carry the initial onus of
establishing this proposition.18
In engaging with this issue, the Constitutional
19
Court President Arthur Chaskalson cited former
U.S. Supreme Court Justice Brennan’s dicta, in
Furman v. Georgia, in which he cited that the death
penalty treats “members of the human race as nonhumans . . . [It is] thus inconsistent with the fundamental premise of the [Cruel and Unusual
Punishments] Clause that even the vilest criminal
remains a human being possessed of common human
dignity.”20 What is implicit in considering Justice
Brennan’s Eighth Amendment reasoning in interpreting section 11(2) of the South African Constitution is
the inherent respect for human dignity and the
inescapable connection to the right to life implied in
18

Id. at para. 26 (citing Furman v. Georgia, 408 U.S. 238,
290 (1972) (Brennan, J., concurring)).
19
Arthur Chaskalson was President of the Constitutional
Court of South Africa from 1994 to 2001 and Chief Justice of
South Africa from 2001 to 2005.
20
State v. Makwanyane and Another 1995 (3) SA 391 (CC)
at paras. 57, 58 (S. Afr.) (quoting Brennan, J., in Furman, 408
U.S. at 273).

 15
both clauses. On this legal symbiosis, Chaskalson
states:
[T]he rights to life and dignity are the most
important of all human rights . . . [b]y committing ourselves to a society founded on the
recognition of human rights we are required
to value these two rights above all others.
And this must be demonstrated by the State
in everything that it does, including the way
it punishes criminals. This is not achieved by
objectifying murderers and putting them to
death to serve as an example to others in
the expectation that they might possibly be
deterred thereby.21
Chaskalson also stated, “The international and
foreign authorities are of value because they analyse
arguments for and against the death sentence and
show how courts of other jurisdictions have dealt with
this vexed issue. For that reason alone they require
our attention.”22
Furthermore, Langa J., affirmed in Makwanyane:
A culture of respect for human life and
dignity, based on the values reflected in the
Constitution, has to be engendered, and the
State must take the lead. In acting out this
role, the State not only preaches respect for
the law and that the killing must stop, but it
demonstrates in the best way possible, by
21
22

Id. at para. 144.
Id. at para. 34.

 16
example, society’s own regard for human life
and dignity by refusing to destroy that of the
criminal.23
It is particularly informative that the modern
histories of the United Kingdom and South Africa are
so vastly different, yet both came to understand that
capital punishment lowered the moral standard of
each of their communities and saw fit to abolish the
death penalty.
2. Canada
Canada abolished the death penalty for civilian
offenses in 1976 and for military offenses in 1998.
The last execution took place in 1962. The Supreme
Court of Canada has never had to rule on the issue of
whether the death penalty is in all circumstances a
cruel and unusual punishment within the meaning of
s.12 of the Canadian Charter of Rights and Freedoms, adopted 17 April 1982.24
However, in United States v. Burns [2001] 1
S.C.R. 283 (Can.), in a unanimous per curiam opinion
the Court held that the “responsibility of the state” in
a potential execution is properly addressed by debate

23

Id. at para. 222.
Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B to the Canada Act,
1982, c 11 (U.K.).
24

 17
under s. 725 of the Charter and not s. 12.26 In the
instant case it found extradition involving the risk of
execution would breach s. 7 of the Charter in all but
exceptional circumstances. Under s. 7 there is a
guarantee to a Right to Life and execution is by its
very nature a violation of a Right to Life. The rule in
Canada is an extradition that violates the principles
of fundamental justice (e.g., Right to Life,) will
“always shock the conscience” and not be allowed.
Id. at 325 (original emphasis).
The balancing process earlier enunciated in
Kindler v. Canada (Minister of Justice) [1991] 2
S.C.R. 779 (Can.), was not changed but, rather factual developments in Canada and relevant foreign
jurisdictions had to be taken into account. The critical
change is that the former balance test in favor of
extradition to capital punishment jurisdictions is now
a balance test opposed to extradition as against the
Right to Life guarantee in the Constitution of Canada. Burns, 1 S.C.R. at 361.
Canada’s experiences and judicial decisions not
only highlight the fundamental nature of respecting
25

See United States v. Burns, [2001] 1 S.C.R. 283, 317-20
(Can.) (noting that s. 7 of the Charter states, “Everyone has the
right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles of
fundamental justice”).
26
See id. (stating that s. 12 of the Charter says, “Everyone
has the right not to be subjected to any cruel and unusual
treatment or punishment”).

 18
the Right to Life but also demonstrate to this Court
that anytime the State seeks to take a human life in a
deliberate fashion, it axiomatically invokes issues of
cruel and unusual punishment. In today’s society,
with our modern and enlightened understandings of
human nature and conduct, the need and reasoning
for death as a punishment is no longer understood
or accepted in most common law and democratic
societies.
3. Ireland
In Ireland the death penalty is prohibited under
27
Article 15.5.2 of the Constitution of Ireland. The
clause was inserted into the Constitution of Ireland
following a referendum of its citizens on 27 March
28
2002. The death penalty had, in any event, been
abolished by statute under the Criminal Justice Act
1990 (Act No. 16/1990) (Ir.), but the Constitutional
provision now prohibits any further enactment of the
penalty by statute as a punishment for any criminal
offense.
Like the United Kingdom, Ireland solidified this
national position by ratifying Council of Europe’s
regional document for complete abolition – Protocol
27

Constitution of Ireland 1937 art. 15.5.2.
The Twenty-First Amendment of the Irish Constitutional
Act 2001, Article 15.5.2, provides for the abolition of the death
penalty, “The Oireachtas shall not enact any law providing for
the imposition of the death penalty.”
28

 19
No. 13 to the European Convention for the Protection
of Human Rights and Fundamental Freedoms, abolishing the death penalty in all circumstances.29 Ireland’s history in the Twentieth Century saw civil
violence, famine and extreme poverty before establishing stability and economic growth. In its legal
developments, rooted in the common law, Ireland
firmly and fully rejected the old standard capital
punishment as an acceptable punishment in its
evolving standards of decency.
4. Australia
The death penalty was abolished in Australian
federal law by the passage of the Commonwealth
30
Death Penalty Abolition Act 1973. Individual states
and territories have all passed acts of Parliament
prohibiting the use of the death penalty as a criminal
sanction beginning in Queensland in 1922, and
ending in New South Wales in 1985.31 Australia was
one of the first countries to accede to the 1989 Second
29

Chart of Signatures and Ratifications of Treaty 187,
Council of Europe, http://www.coe.int/en/web/conventions/full-list//conventions/treaty/country/IRE?p_auth=Gd6SfYXM (showing that
Ireland signed and ratified on Mar. 5, 2002, and it entered into
force on Jan. 7, 2003).
30
Death Penalty Abolition Act 1973 (Cth) (Austl.).
31
The Law Council of Australia and the Australian Bar
Association, Submission No. 34 to Hum. Rights Sub-Comm. of
the Joint Standing Comm. on Foreign Affairs, Defence and
Trade: Australia’s Advocacy for the Abolition of the Death
Penalty 4 (2015).

 20
Optional Protocol to the International Covenant on
Civil and Political Rights (ICCPR), which requires
“states parties to take all necessary measures to
abolish the death penalty within their jurisdiction.”32
In 2010, the Australian Federal Government, with
bipartisan support, legislated this commitment by
passing the Crimes Legislation Amendment (Torture
Prohibition and Death Penalty Abolition) Bill, which
prohibits an individual state in Australia from reintroducing the death penalty.33
The Australian Human Rights Commission commended the passage of the 2010 legislation and then
Commission President Cathy Branson QC stated that
“[t]he death penalty has no place in a humane society.
By ensuring that it cannot be reintroduced, the
government is ensuring the enduring protection of
fundamental human rights.”34 A recent submission by
Australia’s Department of Foreign Affairs and Trade
(DFAT) to an Inquiry into Australia’s Advocacy
32

Dep’t of Foreign Affairs and Trade, Submission No. 35 to
Hum. Rights Sub-Comm. on the Joint Standing Comm. on
Foreign Affairs, Defence and Trade: Australia’s Advocacy for the
Abolition of the Death Penalty 3 (2015).
33
Explanatory Memorandum, Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill
2009 (Cth) (Austl.).
34
2010 Media Release: Commission Welcomes Passage of
Law Outlawing Torture and Prohibiting the Death Penalty,
Australian Human Rights Commission (Mar. 11, 2010), https://
www.humanrights.gov.au/news/media-releases/2010-media-releasecommission-welcomes-passage-law-outlawing-torture-and.

 21
on Abolition of the Death Penalty emphasized the
Australian Government’s “long-standing, bipartisan
policy commitment to the abolition of the death
penalty,” and Australia’s opposition to the use of
capital punishment in all circumstances.35
------------------------------------------------------------------

CONCLUSION
Amici have focused their argument on key common law jurisdictions whose legal process finds
reflection in the U.S. legal process. In each of our
sister jurisdictions, even with substantially different
cultural, economic and social experiences and challenges, the death penalty has been rejected as having
no place in a modern, evolved humane society.
In particular, the United Kingdom has historical
and lengthy legal kinship with the United States and
a legal history viewed with respect by this Court.
“The United Kingdom’s experience bears particular
relevance here in light of the historic ties between our
countries and in light of the Eighth Amendment’s
own origins. The Amendment was modelled on a
parallel provision in the English Declaration of
Rights of 1689, which provided: ‘[E]xcessive Bail

35

Dep’t of Foreign Affairs and Trade, supra note 30.

 22
ought not to be required nor excessive Fines imposed;
nor cruel and unusual Punishments inflicted.’ ”36
The Eighth Amendment’s prohibition on “cruel
and unusual” punishment must be determined as
those words find meaning in the U.S. Constitution
and its evolving standards of decency. As Justice
Chaskalson wrote for South Africa, so it is true for
this Court in analyzing the Eighth Amendment:
“The question is not, however, whether the
death sentence is a cruel, inhuman or degrading punishment in the ordinary meaning
of these words but whether it is a cruel, inhuman or degrading punishment within the
meaning of section 11(2) of our Constitution.”37
However, Justice Chaskalson also stated:
“The international and foreign authorities
are of value because they analyse arguments
for and against the death sentence and show
how courts of other jurisdictions have dealt
with this vexed issue. For that reason alone
they require our attention.”38

36

Roper v. Simmons, 543 U.S. 551, 577 (2005) (citing Bill of
Rights 1689, 1 W. & M., c. 2, §10, in 3 Eng. Stat. at Large 441
(1770)).
37
Id. at para. 26 (citing Furman v. Georgia, 408 U.S. 238,
290 (1972) (Brennan, J., concurring)).
38
Id. at para. 34.

 23
For the reasons expressed by Amici, we respectfully ask this Court to grant the Petition for Writ of
Certiorari in order to find, in all cases, the imposition
of a sentence of death violates the Eighth Amendment’s prohibition against cruel and unusual punishments.
Respectfully submitted,
PROF. THOMAS H. SPEEDY RICE
Counsel of Record on behalf of Amici Curiae
WASHINGTON & LEE UNIVERSITY
SCHOOL OF LAW
Sydney Lewis Hall
Lexington, VA 24450
(540) 458-8521
RiceS@wlu.edu