SOUTH AFRICA'S highest court has unanimously invalidated capital punishment under its post-apartheid constitution. In a departure from the course taken by the U. S. Supreme Court, the South African Constitutional Court invoked its Bill of Rights provisions that prohibit "cruel, inhuman and degrading punishment."
Court President Arthur Chaskalson's opinion considered aspects of the death penalty: destruction of life and dignity, both guaranteed in the South African Bill of Rights; arbitrariness of application; possibility of error, and the alternative of life imprisonment as severe punishment. When weighing the argument that the death penalty is a greater deterrent to potential criminals than life imprisonment, he referred to American studies demonstrating that this has not been proved. He ruled also that retribution could not be accorded the same weight as the constitutional rights to life and dignity.
President Nelson Mandela's office endorsed the decision as "sober and humane," as did the African National Congress and Nobel laureate Bishop Desmond Tutu. How different from the drumbeating for the death penalty that we are accustomed to here. Sounding like an American, F.W. de Klerk, leader of the National Party that governed the country under apartheid, vowed to have the ruling overturned. But South African lawyers who brought the challenge to capital punishment believe he cannot succeed.
Mr. Mandela himself faced death when convicted of conspiracy to overthrow the government in 1964. Presiding over the swearing-in of the Constitutional Court this year, he quipped that when last he had been in court he wondered whether he would be sentenced to death. (He received a life imprisonment sentence.) Justice Albie Sachs had been imprisoned as a member of the ANC during the National Party regime, went into exile and continued to work for the ANC in Mozambique, where South African agents blew up his automobile, costing him an arm and most of the vision in one eye. If anyone should call for the death penalty as retribution it should be Mr. Sachs, but he joined in the judgment.
In this decision, South Africa has joined most of the world's democracies. Canada, most of Latin America, all of Western Europe, Australia, New Zealand and Namibia prohibit the death penalty as have the Czech and Slovak republics, Hungary and Romania. Russia retains it virtually only in name: Clemency has revoked the few recent death sentences. A few years ago, the Soviet Union had thousands of executions annually. India, with its population of perhaps 1 billion, executed three men in recent years.
The International Covenant on Civil and Political Rights and its protocols condemn capital punishment, as do the American and European Human Rights Conventions. The United States, which only recently ratified the covenant, opted out of its provisions dealing with capital punishment.
South Africa's decision leaves the United States even further isolated. In the 1980s, there were more than 1,100 executions in South Africa. In 1989, there were 60, plus unknown numbers in the "homelands" before a moratorium went into effect. When the Constitutional Court decision came down, 443 people were on death row; they will now be resentenced.
In recent times, the United States has executed between 30 and 40 death row inmates a year; in 1995, that number may exceed 40 and hundreds more are sentenced each year. As other countries have been abolishing capital punishment, the United States has been revving it up. Bill Clinton advocated and Congress created about 60 new federal death penalty offenses in the last crime bill; Gov. George Pataki boasts about re-instating New York's new death-penalty law immediately after his swearing-in. The Supreme Court has relentlessly been making capital sentences more difficult to contest. Moreover, while more than 70 death-penalty countries have abolished it for offenders under 18, the United States, according to Human Rights Watch, "is a world leader in executing juvenile offenders." (There have been nine such executions since the death penalty was re-instituted in 1976, four in the last six months of 1993.)
Why are we so different? The best clue is that executions have taken place overwhelmingly in the former slave-holding states. Nationwide, anyone, particularly a black, who kills a white person, is far more likely to be sentenced to death than someone, particularly a white, who kills a black.
The Supreme Court has held that the intent to discriminate would have to be proved -- an impossible task -- for this disparity to be unconstitutional.
Once, I was optimistic that the death penalty in America was on the way to extinction. South Africa's humane decision has caused me to contrast it with what has been happening here. I am afraid that until we rid ourselves of the legacy of our own apartheid, we will have to contend with the arbitrary, irrational, racist regime of capital justice we have today.
Jack Greenberg, a law professor at Columbia University, was director counsel of the NAACP Legal Defense and Education Fund from 1961 to 1984 and directed its campaign against the death penalty. He helped establish the first public interest law firm in South Africa in 1978.