This thesis examines why courts in the United States of America (US), India and South Africa refer to foreign law in death penalty cases. To gain an understanding of what drives the apex courts of the US, India and South Africa to cite foreign law when considering domestic death penalty issues, this thesis proposes a three-part matrix to both assess the relevant case law and to analyse the academic literature on cross-citation. Firstly, it will be demonstrated that judges in national courts cross-cite comparative law out of a primary interest in constitutional interpretation. Cross-citation is used in this manner to assist judges in their domestic interpretative tasks. Secondly, it will be illustrated how courts that engage in the citation of foreign law also seek guidance from other jurisdictions as to the content of shared values, such as what type of punishment does not fundamentally and unlawfully violate the right to human dignity. Finally, this thesis assesses to what degree courts from the three selected jurisdictions are additionally referencing or applying a customary international law norm when citing foreign sources. The argument is made that the domestic courts under examination engage with comparative law in the context of a broader transnational normative project, taking the international human rights framework that developed after the Second World War as a key reference point. In doing so, this thesis argues that these courts are at times recognising and developing emerging customary norms, and at other times giving effect to and enforcing applicable international human rights law.

published_or_final_version / Law / Master / Master of Laws

Lietuvoje ir ir kitose Europos šalyse (Italijoje, Lenkijoje) pasigirsta politikų bei visuomenės kalbų, jog verta atkurti mirties bausmę. Kiek tokios kalbos realios? Europa po antrojo pasaulinio karo dėjo maksimaliai pastangų panaikinti mirties bausmę visame kontinente. Darbas buvo ilgas, užtruko ilgus dešimtmečius, bet dėl diplomatinių viražų, beveik visos Europos šalys mirties bausmės nebetaiko. Dabartinės retencionistinės kalbos kai kam atrodo kaip žingsnis atgal, nes aboliucionistai mano, jog mirties bausmės uždraudimas tai toks pats didelis laimėjimas, kaip pasaulinis demokratijos įsitvirtinimas daugumoje pasaulio šalių. Retencionistai gi visai kitaip žvelgia į mirties bausmę ir mato ją kaip normalią baudžiamosios politikos priemonę. Todėl diskusijos tarp dviejų priešingų stovyklų verda tiek dėl mirties bausmės privalumų ir trūkumų, tiek dėl apskritai galimybės atkurti mirties bausmę bent jau tam tikrose šalyse. Aboliucionistai, ilgai kovoję už visuotinį aboliucionizmą neketina užleisti nė kiek savo jau iškovotų pozicijų plotelio, tačiau tam vėlgi pasitelkia argumentus, kuriuos naudoja debatuose „už ir prieš“ mirties bausmę. Retencionistai gi naudoja skirtingoms diskusijoms skirtingus argumentus, bet matyt jų retorika ir pozicija yra kitokia dėl to, kad jų šalių baudžiamoji politika kelia kitokius tikslus ir uždavinius teisei, susiduria su kitomis problemomis, o visuomenės skirtingai nuo ES senbuvių visuomenių supranta teisės paskirtį, Europa gi visus paima po vienu... [toliau žr. visą tekstą] / In Lithuania and other European countries (Italy, Poland) politicians and the public discuss on the issue is it worth restoring the death penalty. Europe after the Second World War, has made maximum efforts to abolish the death penalty throughout the continent. The work was long, it took many decades, but after the diplomatic virages, almost all European countries have abolished death penalty. Current retencional discusses for some seems like a step back, because abolutionists believe that the prohibition of the death penalty is same great achievement, as the global entrenchment of democracy in most countries of the world. Retencionists look in other way to the death penalty and sees it as a normal criminal policy. Therefore, the debate between two opposite camps is going both about death penalty pros and cons, both for the general possibility of restoring the death penalty, at least in certain countries. Aboliucionists has long fought for universal aboliutionizm and do not intend to relinquish any of the positions they have already achieved. Abolutionists rely on the arguments used by the recent debates for and against the death penalty. Retencionists use different arguments for debates, but apparently their rhetoric, and the position is different because of their criminal policies are different goals. Countries of the retencionists has other objectives for the law- it is faced with other problems, and the public, unlike the EU's old member countries‘s societies understand... [to full text]

This paper explores execution rates among states where the death penalty is legal. Following the Supreme Court ruling in 1972 (Furman v. Georgia) which categorized the death penalty as cruel and unusual punishment due to arbitrary sentencing, this paper looks at whether or not executions are arbitrarily conducted by states. By taking into account race of the defendant, race of the victim, heinousness of crime, quality of defense, and public support for the death penalty, this paper seeks answers to the varying rates of executions across the United States. It was however, unable to find causal reasons for differences in execution rates. It did find though, that in some states, a black defendant had a higher likelihood of being executed during 2008-2012. This finding is important because it shows that race matters in some states if you are a defendant on a capital case.

Capital Punishment Abstract This paper is aimed at the capital punishment and its usage in modern society. The basic question examined is, whether death penalty can ever be justified as a tool to fight the most heinous crimes. In order to determine the answer this question, I am examining the capital punishment from the point of view of possible functions it can have and weighting it against inherent risks and harms created by it. The first chapter of this thesis is based on description. Firstly it shows the history of using the capital punishment in the area of Czech Republic; secondly I describe the usage around the world - mainly in USA, China and Middle East. Lastly I analyze international law concerned with capital punishment - namely International Covenant on Civil and Political rights and European Charter of Human rights, optional protocols to them and of course court decisions regarding these treaties. The second chapter is aimed at evaluating the possible benefits that using of capital punishment can have - especially when compared to life imprisonment. It is divided according to these functions, which are deterrence of potential criminals, protection of the society from sentenced criminals and the retribution for the crimes committed. In the end I find no clear benefit that executing of felons...

The following research attempts to determine the factors used by an individual to develop an attitude on the political issue of capital punishment. Using data from the 2000 National Election Study and ordered probit analysis, this research produces a multivariate, multi-stage model of death penalty attitudes. Demographic factors such as race, age, gender, and education level are included in the initial stage of the model. Attitudinal variables such as party identification, ideology, and religiosity are added, one-by-one, in the second stage of the model to determine their own individual effect on death penalty attitudes, and their effect on the preceding demographic variables. The result is a comprehensive model of death penalty attitudes.

Thesis (M.A.) -- Central Connecticut State University, 2009. / Thesis advisor: Katherine A. Hermes. "... in partial fulfillment of the requirements for the degree of Master of Arts in History." Includes bibliographical references (leaves 1-7, third numbering). Abstract available via the World Wide Web.

Thesis (Ph. D.)--University of Wyoming, 2007. / Title from PDF title page (viewed on Feb. 6, 2009). Includes bibliographical references (p. 33-38).

Thesis (L.L.D.)--University of Pretoria, 2005. / Title from PDF t.p. (viewed on July 22, 2006). "Submitted in fulfilment of the requirements for the degree Doctor of Laws (LLD) in the Faculty of Law, University of Pretoria." Includes bibliographical references (p. 355-386).

This study aimed to examine previous empirical literature indicating that death penalty support contains a divide among Blacks and Whites and a gap among males and females. Previous literature has indicated that there has been a persistent racial divide and gender gap in death penalty support that has spanned over 60 years of research. Attempts to attenuate these divides have failed to fully explain why Whites are more likely than Blacks to support the death penalty and men are more likely than women to support the death penalty. This study proposes the use of empathy to control for these divides because research has indicated that those who are more empathic tend to be less punitive. Using data collected from a survey conducted on Amazon’s Mechanical Turk, a paid task website, this study attempted to attenuate the racial divide and gender gap by controlling for empathy. The sample consisted of 403 usable surveys that contained questions that measured sociodemographic characteristics, three measurements of empathy (cognitive, affective and ethnocultural), death penalty support, and attribution styles. The results indicated that there was not a racial divide or gender gap in death penalty support despite over 60 years of research indicating otherwise. Furthermore, this study failed to find a significant relationship between cognitive and affective empathy with death penalty support. This study did find a relationship between attribution styles and death penalty support as well as ethnocultural empathy with death penalty support. Individuals who scored higher on the situational attribution style were less likely to support the death penalty. Those who scored higher on the ethnocultural empathy scale were also less likely to support the death penalty. Future research should refrain from testing with Amazon’s Mechanical Turk as was not generalizable to the United States population. Research should be continued on different samples that have been shown to be more reliable than online surveys. Finally, research should be continued beyond empathy to examine what effects other controls have on the racial divide and gender gap in death penalty support.