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. 19