Comparative Perspectives on Discretionary Capital Sentencing

• In Event: Comparative Perspectives on the Death Penalty: An Agenda for the Next Generation of Capital Punishment Research

Abstract

The mandatory death penalty is in rapid decline and now constitutes the minority rule in the common law world. The penalty simplified sentencing, but worked a harsh justice, treating all murders as equally heinous and deserving of death. In the last fifteen years, the mandatory death penalty has been limited or extinguished by court decision, legislative reform, and constitutional negotiation processes throughout the Caribbean, East and Southern Africa, and South and Southeast Asia. Now that judges have the discretion to substitute lesser sentences in capital cases, these systems have begun to wrestle with consistency and predictability in sentence determinations. What factors are relevant in the sentencing decision? How do judges weigh mitigating and aggravating factors? What test should they use in deciding whether a death-eligible case is truly among the “worst of the worst”? This paper and proposal would look at several alternatives that have been adopted in Commonwealth countries that have abolished the mandatory death penalty. These include formal sentencing guidelines on the United States model, as have been adopted in Uganda; judicially-created sentencing guidelines and strict appellate review, as in Botswana, Swaziland, and Papua New Guinea; and the use of legislatively-enacted mandatory minimum sentences, including mandatory life imprisonment.

Author

• Andrew Novak, George Mason University