A Report on Professor Julian Killingley`s Public Lecture
“State’s Rights v Human Rights”
Federalism and the Death Penalty in the USA
It is interesting to note the role that English legal thinking played in the origin of the American law and Constitution. Blackstone`s common law having been published just before 1776, and the establishment of the United States. The Constitution, now 200 years old, was drawn up by lawyers with a grounding in English Law, and the concept of the division of powers. The result being that the States retained policing powers and the federal government being circumscribed by the Constitution. This has had relatively few amendments since and indeed the process requires the consent of 75% of States, which makes it very hard to amend.
The Bill of Rights guaranteeing the rights of citizens, and the interpretation of the Constitution is in the hands of the Supreme Court which limits the State’s powers which continues to determine the criminal law, and the law in relation to the death penalty. This law is very complex engaging inter alia the 14th amendment. States are understandably concerned to preserve their prerogatives and it is an issue in the politics of the State, most of which have the death penalty.
The death penalty is legal in very few other countries now, and in Europe has been all but abolished by the European Convention on Human Rights. In the United States the number of persons executed had been dwindling until the mid seventies, but there are currently thousands of prisoners on death row, many remaining there for years. There is an obvious preponderance of those who had murdered a white person. There are also difficulties relating to the defence being adequately funded from the public purse, and prosecutors are directly elected.
Appeals have considered the need to separate juridical findings of guilt, from sentencing, and a current challenge before the Supreme Court, is partly based on international law.
It is implied that it will be difficult for the United States to maintain its present position on the execution of murderers who are mentally retarded, or youths of 16 or 17 years, whilst condemning oppressive laws in other countries. It is being suggested that the relative isolation of the United States over the death penalty is becoming an obstacle to it’s diplomacy. The response of the Supreme Court is awaited, though it may be uninfluenced by the situation outside of the United States. The leturer declared himself an activist for abolition, if only on the grounds that it was impossible to do justice in the circumstances that pertain.
( With regard to medical ethics, American and international bodies have called upon doctors to take no part in executions…Ed. )