The Use of Human Dignity in Death Penalty Cases: An International perspective
An examination of cases from several jurisdictions that address the legality of the death penalty reveals various uses of the notion of human dignity.
In 1972, in Furman v. Georgia, the United States Supreme Court declared all existing death penalty statutes at the time unconstitutional as a violation of the Eighth Amendment prohibiting "cruel and unusual punishment". There was no majority opinion, and each of the five majority members wrote a separate opinion. While three of them based their decision on the arbitrary and discriminatory application of the death penalty in the U.S., Justices Brennan and Marshall based their opinions on the per-se unconstitutionality of capital punishment. Justice Brennan argued that although human dignity is not explicitly guaranteed by the United States Constitution, it is the fundamental concept underlying the Eighth Amendment. In his opinion: "The State, even as it punishes, must treat its members with respect for their intrinsic worth as human beings. A punishment is "cruel and unusual, therefore, "if it does not comport with human dignity". He declared that the severity of capital punishment is degrading to the dignity of a man, and since even the vilest criminals share an inherent dignity, the punishment is unconstitutional. Though in Brennan words human dignity functions as a justification for the Eight Amendment, they seem to illustrate the psychological approach to the meaning of human dignity.
In 1976, the nationwide ban that was imposed on the capital punishment was over turned in Gregg v. Georgia. Gregg was convicted of murder and was sentenced to death in Georgia. He appealed to the Supreme Court on the basis of its decision in Furman. The State of Georgia demonstrated that it had worked to formulate its capital punishment laws consistent with the standards that were outlined in Furman. A majority of the Supreme Court set out obligatory guidelines for the legislatures to follow in order to craft a constitutional capital punishment sentencing scheme. It then decided that Georgia's sentencing scheme met these criteria, and the death penalty was therefore ruled constitutional. The majority ruled that in order to respect the dignity of a man underlying the Eight Amendment, the punishment of criminals should not be excessive. But there was no clear definition of dignity. This time Justices Brennan and Marshall, who reiterated their belief in Furman that the death penalty was unconstitutional, were the only two dissenters. Brennan wrote a decidedly brief opinion that contained his view on Furman, which is that: "the primary moral principle that the State, even as it punishes, must treat its citizens in a manner consistent with their intrinsic worth as human beings – a punishment must not be so severe as to be degrading to human dignity".
In 1980, in Bachan Singh v. Punjab, the Supreme Court of India was required to rule on the matter of the constitutionality of death penalty to a convicted murderer. This was despite the fact that the Indian Constitution allows the state to deprive a person's life, as long as it is established by law. Four of the five justices rejected the petition and declared that death penalty is constitutional if it abides by certain standards and is used reasonably. The majority relied in part on the principle of judicial discretion in not judging capital punishment to be unconstitutional per se. The lone dissenter, Justice Bhagwati, expressed a diverging opinion. From the beginning of his verdict he explains the source of the divergence: "Mine is unfortunately a solitary dissent… by my deep and abiding faith in the dignity of man and worth of the human person and passionate conviction about the true spiritual nature and dimension of man". In his view, the Indian Constitution respects the dignity and worth of the individual and protects them from degradation. Therefore, he determined that capital punishment, which he defines as a legally sanctioned "barbaric act" of taking a man's life, is unconstitutional. It is clear that Bhagwati adopted the same approach as Brennan. In fact, both the majority and the minority in the Indian court referred at length to Gregg and Furman. While the majority uses these cases as evidence that even the U.S. reinstated capital punishment to a substantial degree, Bhagwati used it to side with Gregg's dissenters.

In 1995, in the case of Mbushuu v. Republic, the Tanzanian Court of Appeal upheld the constitutionality of the death penalty. That was despite the fact that the Court found the capital punishment to be contradictory to Article 13(b)(d) and (e) of the Tanzanian Constitution – the right to life and the prohibition of inhuman, cruel, and degrading punishment. The Court approvingly cited Brennan in Furman, and therefore declared that the death penalty is a violation of the convicted person's dignity. Nevertheless, the punishment was justified by Article 30(2) of the Constitution, which permitted derogation from basic rights of the individual in the public interest, provided such derogation was proportionate and did not exceed what was reasonably necessary. Accordingly, the three judges ruled that the capital punishment is constitutional since it has a deterrent efficacy in protecting the public's right to life and thwarting potential murderers. In this case the Court adopted the psychological approach to the dignity of the individual, but on the other hand, it argued community interest to restrain the emphasis on human dignity.

In 1995, it was the Constitutional Court of South Africa that grappled with the constitutionality of the death penalty, in State v. Makwanyane. The Court ruled, under the then new and transitional constitution, that the death penalty per se is a violation of the constitutional rights to life, human dignity, equality and the right not to be subjected to cruel and inhuman punishment. It was, therefore, forbidden. The word 'dignity' appears on the verdict over 100 times, though its meaning and use are difficult to follow. The judges cited a variety of international cases and constitutions (including those mentioned here), in which the notion of dignity had multiple meanings. But, the South African judges themselves took two different approaches, the more prominent being that of by President Chaskalson. He defined the right to dignity and the right to life: "First, the relationship between the rights of life and dignity, and the importance of these rights taken together. Secondly, the absolute nature of these two rights taken together. Together they are the source of all other rights. Other rights may be limited, and may even be withdrawn and then granted again, but their ultimate limit is to be found in the preservation of the twin rights of life and dignity". In fact, over 50 times in the verdict, the word 'dignity' is paired with the word 'life', but there is no explicit definition of dignity to be found. With no clear explanation of the right to life with dignity it seems that human dignity is synonymous with the right to life. Perhaps, this is a rhetorical use of the notion in order to support and strengthen the right to life argument.
While Justice O'regan also marked that the right to life and the right to dignity are entwined, his opinion seem to be the only one that separates between the two rights completely, and delivers a clear definition of dignity: "The importance of dignity as a founding value of the new Constitution cannot be overemphasized. Recognizing a right to dignity is an acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern…". Therefore, he claims that taking the life of a criminal in order to deter the public from going his ways, is a denial of the person's inherent dignity and worth. O'regan's approach to the notion seems closer to that of Brennan and Bhagwati.

In 2005, in the case of Kigula v. Attorney General, the Constitutional Court of Uganda upheld the constitutionality of the capital punishment for certain crimes. The three judges wrote separate opinions giving their own justifications for the decision. In none of them did human dignity play a central role, and it appears mainly in citations to other countries cases. Justice Mpagi Bahigeine made a single reference to the notion when he accepted the respondent's arguments. According to him: "People should feel safe by realizing that murderers should also lose their lives against their will… The death penalty gives the citizens such a sense of dignity and security". His use of the dignity of citizens functions as a way to restrict and overcome a civil right – the murderer's right to life. Though the outcome is the same, this justification is diametrically opposed to that used by the Tasmanian Supreme Court. It is the only death penalty case that focuses on the dignity of society and the community, rather than on the dignity of a convicted person sentenced to death.

These cases all concern the constitutionality of death penalty per se. From the descriptions, it seems clear that in cases upholding the constitutionality of the death penalty references to human dignity in the majority opinion are weak and largely insignificant, absent of any clear definition of the notion. On the other hand, minority and majority opinions supporting the unconstitutionality of capital punishment tended to rely on the psychological approach to human dignity. Finally, the South African case presents a good example of an exaggerated use of the term, nearly depriving it of meaning, and preventing its contribution to an understanding of the decision.

In the U.S. where the death penalty was found to be constitutional under certain circumstances, the Supreme Court has heard appeals challenging the constitutionality of specific death penalty cases.

In 2005, in Roper v. Simmons, the Supreme Court faced the question of the constitutionality of death penalty sentence for offenders who were juveniles at the time they committed their crimes. Simmons was 17 when he committed a brutal murder for which he showed no remorse, and was 18 when the jury sentenced him to death. Cited as precedent was the 1989 Supreme Court decision in Stanford v. Kentucky that upheld the legality of capital punishment for offenders who were 16 or 17 years old when they committed a capital offense.In Roper, the Court overturned that decision by ruling that it is cruel and unusual punishment to execute a person who was under the age of 18 at the time of the murder, and therefore a violation of the Eighth Amendment. The decision was based primarily on comparative law. Justice Kennedy declared: "By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons". Therefore, in his opinion, since the concept underlying the Eighth Amendment is human dignity, the definition of this concept must be based in large part on the evolving standards of a maturing society. However, rather than examining the definition and significance of 'dignity' in international law, Kennedy sufficed with an arid list of countries that approve or ban juvenile executions. Noting that the U.S., in allowing these executions, is in the minority alongside counties such as Iran and Yemen, he concluded that the U.S. should align itself with the rest of the world.
In Roper v. Simmons, as in Furman and Gregg, human dignity functions as justification for the Eight Amendment. While the case, disappointingly, provides no clear definition of human dignity, we can see that the Court's decision is based on the assumption of dignity is a universal concept. By looking at different jurisdictions, we can learn and understand it better. Kennedy's approach contradicts Howard's definition of human dignity as "The particular cultural understandings of the inner moral worth of the human person". Especially since Kennedy did not turn to compare western jurisdictions only. In Roper v. Simmons Justice Scalia dissented and argued that the appropriate question was not whether there was presently a consensus against the execution of juveniles, but rather whether the execution of such defendants was considered cruel and unusual, and therefore violating human dignity, at the point at which the Bill of Rights was ratified.
A nearly identical decision was handed down by the U.S. Supreme Court in 2002, in Atkins v. Virginia, when it ruled that execution of the mentally retarded violates the Eighth Amendment. Again, the Court cited "dignity" as underlying the Amendment, and it once again referred to the "evolving standards of maturing society" in justifying its decision. In 2008, in Baze v. Rees, two convicted murderers (Base and Dowling) were sentenced to death in Kentucky. Following their sentencing, a constitutional challenge was mounted to outlaw the specific combination of drugs used in the lethal injection process. The petitioners argued that the second injection of drugs, meant to anesthetize the condemned person and cause him to lose all sensation, might fail. In that situation, witnesses to the execution might get the impression that the person appears to be at peace when he is, in fact, in a state of paralysis and unable to indicate that he is suffering agony and torture. It was argued, then, that use of these drugs, which risks imposing unnecessary pain, violates the prohibition on cruel and unusual punishment under the Eighth Amendment. The Supreme Court found the Kentucky lethal injection constitutional. It ruled that to constitute cruel and unusual punishment, an execution method must present a substantial and intolerable risk of serious harm. Chief Justice Roberts provided an unusual interpretation of the concept of dignity: "The Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress". From his words, it seems as if he places great significance on protecting the execution witnesses from shock, thereby maintaining the dignity of the procedure. In my opinion, this view is outrageous. One might imagine that the judgment would address the dignity of the inmate, or even the dignity of the witnesses. The dignity of the procedure itself never crossed my mind.
Roberts is using dignity in the meaning of honor and prestige, that functions here as the honor of the death penalty institution. This seems to be a good example of the dignity concept sometimes being its own worst enemy.

Based on an examination of these and other death penalty cases, it appears that the U.S. Supreme Court makes relatively little use of the notion of "dignity" in such cases. In fact, it was difficult to find Court decisions in death penalty cases that make meaningful and substantial use of this concept. This is surprising given the Court's clear declarations in recent decades, in nearly every case involving the death penality, that human dignity is the basic concept underlying the Eight Amendment. The Court has yet to explicitly define the concept and give coherent meaning to it. Without doing so, it would be best advised to remove dignity from the equation.

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[ 2 ]. Furman v. Georgia, 408 U.S. 238 (1972).
[ 3 ]. Id., at 270.
[ 4 ]. Id., at 273.
[ 5 ]. Shultziner, D. (2003). Human dignity - Functions and meanings. Global Jurist Topics, 3, 1–21, pp. 1-2.
[ 6 ]. Shultziner, D., & Rabinovici, I. (2011, July 25). HUMAN DIGNITY, SELF-WORTH, AND
HUMILIATION: A Comparative Legal–Psychological Approach. Psychology, Public Policy, and Law. Advance online publication. doi: 10.1037/a0024585.
[ 7 ]. Gregg v. Georgia, 428 U.S. 153 (1976)
[ 8 ]. Id. at 229-230.
[ 9 ]. Bachan Singh v. State of Punjab, (1993) 1 S.C.R.
[ 10 ]. Mbushuu v Republic of Tanzania 1 LRC 216.
[ 11 ]. McCrudden, C. (2008). Human dignity and judicial interpretation of human rights. European Journal of International Law 702, 19, 655–724. doi:10.1093/ejil/chn043. at p. 699.
[ 12 ]. State v. Makwanyane, 1995 (3) SA 391 (CC).
[ 13 ]. Id. at para 34.
[ 14 ]. McCrudden, at p. 702.
[ 15 ]. State v. Makwanyane, at para 28.
[ 16 ]. Susan Kigula & 416 Ors v Attorney General [2005] UGCC 8.
[ 17 ]. McCrudden, at p. 702.
[ 18 ]. Roper v. Simmons, 543 US 551 (2005).
[ 19 ]. Stanford v. Kentucky, 492 US 361 (1989).
[ 20 ]. Howard, Rhoda. 1992. “Dignity, Community, and Human Rights.” in Human Rights in Cross-Cultural Perspective: A Request for Consensus, edited by A. A. An-Na'im. Philadelphia: University of Pennsylvania Press. at p. 83.
[ 21 ]. Atkins v. Virginia, 536 US 304 (2002).
[ 22 ]. Baze v. Rees, 128 SCt 1520 (2008).
[ 23 ]. Shultziner, at p. 10