The Death Penalty in the OSCE Area In South Dakota, the legislature passed a bill aimed at expediting appeals in criminal cases, including capital cases. It was signed by the Governor on 1 March 2012.82 The Attorney General proposed the measure, saying limits were needed in death penalty cases because some have been tied up in appeals for two decades.83 It is unclear what effect this law will have and, specifically, whether it will jeopardize the accused’s right to a fair trial. Also in March 2012, the Supreme Court of the United States granted review in two cases that will decide whether establishing a defendant’s mental competency is necessary in order for a capital appeal to proceed.84 If this is deemed necessary, mentally incompetent inmates could be entitled to an indefinite stay on federal habeas corpus proceedings, as they cannot assist in their defence. The states that asked the Court to review this question, Arizona and Ohio, asserted that appeals should proceed, regardless of the defendant’s ability to participate. The cases will be argued before the Court during its next term, beginning in October 2012. Legal Framework In the United States, 33 states, the Federal Government and the military retain the death penalty in their statutes. Currently, the jurisdictions without the death penalty are Alaska, Connecticut, Hawaii, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin and the District of Colombia.85 Of these 18 jurisdictions, New Mexico and Connecticut’s moratoriums are not retroactive. There are still inmates on death row in both states. The death penalty is imposed almost exclusively for murder convictions. In Kennedy v Louisiana, the Supreme Court struck down a law allowing the death penalty for the non-homicidal rape of a child, finding that execution constituted excessive punishment in such cases.86 The Court stated that the Eighth Amendment to the Constitution, which prohibits cruel and unusual punishment, is defined by “evolving 82  Journal of the Senate, State of South Dakota, www.legis.state.sd.us, 2 March 2012, <http://www.legis.state.sd.us/ sessions/2012/Journals.aspx?Committee=29&File=jrnS03021000.htm#10929>. 83  “Legislature approves bill preventing appeals for death-row inmates”, The Associated Press, 21 February 2012, <http://www.ksfy.com/story/16985668/legislature-approves-bill-preventing-appeals-for-death-row-inmates>. 84  “United States Supreme Court decisions: 2012-2013 term”, The Death Penalty Information Center, 4 September 2012, <http://www.deathpenaltyinfo.org/united-states-supreme-court-decisions-2012-2013-term>. 85  The New York Court of Appeals found that the state’s death penalty statute was unconstitutional due to how the jury was to be instructed in the case of a deadlock. Notwithstanding some attempts, the state’s legislature has not corrected these errors. New York is thus considered an abolitionist state. 86  Kennedy v. Louisiana, 554 U.S. 407 (2008), as cited by, Cornell University Law School Legal Information Institute, <http://www.law.cornell.edu/supct/html/07-343.ZO.html>. 17