The Death Penalty in the OSCE Area
1.2 Surrounding circumstances of the death penalty that may constitute torture
or other cruel, inhuman or degrading treatment or punishment
Prohibition on executing persons belonging to certain groups
The execution of persons belonging to certain groups, such as juveniles, persons with
mental disabilities, pregnant women, elderly persons and persons sentenced after an
unfair trial, are prohibited under international law and constitute cruel, inhuman and
degrading punishment. In those cases, the death penalty is considered per se particularly cruel and inhuman. In addition, there is a growing trend to discuss methods of
execution, the “death row phenomenon” and other circumstance of the death penalty
in relation to the absolute prohibition of torture and other cruel, inhuman or degrading
treatment or punishment.58
By way of example, in the United States of America, legislation on protection of
children or mentally disabled persons is dependent on the legislative framework of
each state. The Supreme Court has, however, issued a series of rulings regarding
the protection of both sets of people, establishing minimum standards. In Atkins v.
Virginia59 and Roper v. Simmons60 the United States Supreme Court struck down the
death penalty for mentally disabled and juvenile defendants, respectively, under the
Court’s Eighth Amendment jurisprudence (prohibition of cruel and unusual punishment), and established a jurisprudential precedent stating that emerging standards
of decency that mark the progress of a maturing society will no longer tolerate the
use of this cruel and unusual punishment if such mitigating factors cannot be reliably
assessed. Expanding on Atkins v. Virginia, in Hall v. Florida61 the justices stated that in
death penalty cases, individual state laws drawing a hard line with IQ ceilings should
be considered unconstitutional and not be allowed to override federal law. In Roper v.
Simmons62 the Court held that the Eighth and Fourteenth Amendments forbid the execution of offenders who were under the age of 18 when their crimes were committed.
Justice Kennedy, writing for the majority, stated: “When a juvenile offender commits
a heinous crime, the State can exact forfeiture of some of the most basic liberties, but
the State cannot extinguish his life and his potential to attain a mature understanding
of his own humanity.”63
58 See, Special Rapporteur 2012, op. cit., note 6; Secretary General, op. cit., note 22, para. 25-32; and Resolution adopted by the Human Rights Council on 1 October 2015, p. 2, <http://ap.ohchr.org/documents/alldocs.
aspx?doc_id=25720>.
59 Atkins v. Virginia, op. cit. note 18.
60 U.S. Supreme Court, Roper v Simmons Opinion of the Court, 1 March 2015, No. 03-633, <https://www.supremecourt.gov/opinions/04pdf/03-633.pdf>.
61 U.S. Supreme Court, Hall v Florida, 27 May 2014, No. 12-10882, <https://supreme.justia.com/cases/federal/
us/572/12-10882/>
62 Special Rapporteur 2012, op. cit., note 6.
63 Ibid.
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