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Mitigating factor

When a person commits a capital crime, a mitigating factor is something that might help the person avoid getting the death penalty. ("To mitigate" means "to decrease." A "factor" is something that causes something else. So, in law, a mitigating factor is something that can cause punishment to decrease.)

Mitigating factors do not automatically result in decreased punishment. Judges and juries also think about aggravating factors – things that are likely to cause a more severe punishment.

Also, mitigating factors are not an excuse for committing a crime. They may help explain what caused a person to commit a crime, but they do not mean the person did nothing wrong.

Africa

Sixteen countries in Africa have abolished the death penalty (made it illegal in the country). Another 22 countries have not used the death penalty in over 10 years, or have a moratorium (a temporary stop) on the death penalty.[1]

According to Cornell University's Law School, as of 2015, only one of the countries in Africa that still uses the death penalty has laws about mitigating factors. That country is Botswana.[2]

Botswana

In Botswana, a person convicted of murder is given the death penalty unless they can show mitigating factors.[3] However, the law in Botswana does not say what these mitigating factors could be, or give examples. This means it is up to each individual judge to decide whether something is a mitigating factor.[4]

For example, in the past, judges have decided that mitigating factors include:[5]

  • A murderer being treated badly by his boss
  • A medical problem like epilepsy
  • The murder victim being sick, so he would have died anyway if he was not murdered
  • The murderer being poor
  • The murderer saying they did not plan the murder before it happened
  • The murderer's lawyer not doing a good job

The law in Botswana does not allow judges to consider mitigating factors from before the murder.[5] For example, if a person was abused as a child, or was abused by their victim, these could not count as extenuating circumstances. Only things that happened right at the time of the murder are considered as mitigating factors.

Mandatory death penalty

Nine countries in Africa that use the death penalty have mandatory death sentences for certain crimes. This means courts will not consider any mitigating factors, no matter what.

These countries are:[2]

Americas

Only two countries in the Americas have executed a person in the past ten years: the United States and St. Kitts and Nevis.[6] The rest have abolished the death penalty or have a moratorium in place.

St. Kitts and Nevis

St. Kitts and Nevis's last execution was in 2008.[7]

St. Kitts and Nevis allows the death penalty for murder or treason.[8] One of the country's Supreme Court decisions said that the death penalty must only be used with "the most exceptional and extreme cases of murder."[9] However, the law does not seem to define what makes a murder "exceptional" and what mitigating factors might prevent the death penalty.[2]

St. Kitts and Nevis does have a law against executing people who were under age 18 when they committed their crime.[10]

United States

Main page: Mitigating factor (United States)

In the United States, mitigating factors are very important in death penalty cases. Mitigating factors can help prosecutors decide whether to ask for the death penalty. Also, the United States Supreme Court has ruled several times that judges and juries must think about mitigating factors before deciding on a sentence.[11][12][13][14]

The United States Supreme Court has made the mandatory death penalty illegal.[11][13][14] To be fair, the Court ruled, each judge or jury has to think about whether an individual defendant deserves the death penalty.

Here are some examples of the most common mitigating factors in federal and state laws:[15][16]

Asia-Pacific region

Mandatory death sentences

Fourteen of the countries in the Asia-Pacific region that use the death penalty have the mandatory death penalty for certain crimes.

These countries are:[2]

Japan

In 1968, a 19-year-old named Norio Nagayama murdered four people in Japan. The Japanese Supreme Court sentenced him to death. In the same ruling, the Supreme Court set out nine different things that Japanese courts needed to think about before sentencing a person to death:[17]

  • How cruel was the crime?
  • Why did the defendant commit the crime?
  • How was the victim killed?
  • How many people were killed?
  • How did the crime affect Japanese society?
  • How old was the defendant?
  • Had the defendant ever committed a crime before?
  • Did the defendant feel bad about what they did?
  • How does the victim's family want the defendant to be punished?

However, these nine things are not all equal. For example, a person could have five mitigating factors (they were young, they felt terrible about the crime, and so on). However, if the victim's family very much wanted the killer to get the death penalty, the judge might order the death penalty anyway. In this Japanese system, mitigating factors do not "outweigh" aggravating factors.[17]

China

In the late 1990s, China started working on making punishments fit the crime, instead of requiring the death penalty automatically for many crimes.[18] For example, in 1999, China's Supreme People's Court ruled that the death penalty should not be used if there were mitigating circumstances – for example, if a murder victim did something to cause the crime or make the situation worse.[18]

In 2012, China wrote new rules for sentencing criminals. They include stricter rules for sentencing, so judges have a few specific choices for sentences. Then they can think about mitigating factors (and aggravating factors) to decide which of these choices fits the crime the best.[18][19] Examples of mitigating factors under these new rules include surrendering and confessing to police.[18]

In its own words, the Supreme People's Court said in a 2004 report that they had worked as hard as they could to make sure "that the death penalty shall only be applied to a very small number of criminals who have committed extremely serious crimes."[19]

The Middle East

Political scholar Benjamin MacQueen writes that some Middle Eastern countries, like Algeria, give "mitigated sentences" to people who belong to terrorist groups or the insurgency (groups fighting against different governments in the Middle East.[20] These people get they death sentences cancelled, and their prison sentences cut by years or even decades, he says.[20] This way, the state and prison officials can look like they were doing nothing wrong; they were just letting people out early for behaving well in jail. At the same time, the terrorists and insurgents could go back to fighting, and the states could support them without looking like they really were.[20]

Europe and Central Asia

As of January 2016, Belarus is the only country in Europe or Central Asia that still uses the death penalty.[21][22] Some other countries still have death penalty laws, but they have not used the death penalty in over 10 years, or they have a moratorium (a temporary stop) on the death penalty.[1]p. 41 Outside of Belarus, nobody has been executed in Europe since 1997.[23]

The European Union is strongly against the death penalty, and fights for this punishment to be ended throughout Europe. Any country that wants to be in the European Union must first end the death penalty in their country.[24]

Belarus

The law in Belarus allows the death penalty for murder, terrorism that causes death, treason, war crimes, crimes against humanity, and genocide.[25]

The only mitigating factor listed in Belarus's laws is mental illness. If a person becomes mentally ill after being sentenced, and they cannot understand or control their behavior, they are not given the death penalty. However, if they recover, they are executed, no matter how long it has been.[26]

The law in Belarus also lists some groups of people that cannot be executed, no matter what. These groups include:

  • People who were under age 18 when they committed their crimes[27]
  • Women[28]
  • People who are older than 65 when they are sentenced[29]

International courts

Since the end of the Nuremberg Trials after World War II, the major international courts in the world have outlawed the death penalty in their courts. For example, in 1993, the United Nations set up an International Criminal Tribunal for the Former Yugoslavia (which is still prosecuting people as of 2016).[30] In 1994, the United Nations Security Council set up the International Criminal Tribunal for Rwanda, to look into and punish crimes committed during the Rwandan Genocide.[31] Neither of these courts were allowed to hand out death sentences.[30][32]

In 1998, the International Criminal Court was created as a permanent international. Its job is to look into and try war crimes, crimes against humanity, and genocide, wherever in the world they happen.[33] However, no matter how bad these crimes are, the ICC is not allowed to use the death penalty as a punishment.[33]

References

  1. ↑ 1.0 1.1 (2016) Amnesty International Global Report: Death Sentences and Executions 2015 . Amnesty International. Report.
  2. ↑ 2.0 2.1 2.2 2.3 "Mandatory Death Penalty". Death Penalty Worldwide. Cornell Law School. January 25, 2012. Archived from the original on April 15, 2016. Retrieved April 5, 2016.
  3. ↑ Nsereko, Daniel D. Ntanda (1991). Extenuating Circumstances in Capital Offenses in Botswana. Criminal Law Forum 2 (2): 235-268. doi:10.1007/BF01096505.
  4. ↑ Maxwell, Elizabeth; & Mogwe, Alice (2006). In the Shadow of the Noose. Botswana: Pyramid Publishing. pp. 20-21. ISBN 978-9991259826.
  5. ↑ 5.0 5.1 Novak, Andrew (2009). Guilty of Murder with Extenuating Circumstances: Transparency and the Mandatory Death Penalty in Botswana. Boston University International Law Journal 27 (1): 173-204.
  6. ↑ St. Kitts hangs man in rare execution. December 20, 2008. http://www.nbcnews.com/id/28318631/ns/world_news-americas/t/st-kitts-hangs-man-rare-execution/. Retrieved April 5, 2016. 
  7. ↑ (December 15, 2015) Report of the Working Group on the Universal Periodic Review: St. Kitts and Nevis . United Nations General Assembly, 5, 9. Report.
  8. ↑ Federation of Saint Kitts and Nevis Constitutional Order of 1983, art. 4(1), Jun. 23, 1983.
  9. ↑ Director of Public Prosecutions v. Wycliffe Liburd, paras. 18, 27, Suit No. SKBHCR 2009/0007, Eastern Caribbean Supreme Court, Oct. 22, 2009; Wilson v. The Queen, Civil Appeal No. 30 of 2004, para. 17, Eastern Caribbean Court of Appeal, Nov. 28, 2005.
  10. ↑ Greene Browne v. The Queen, pp. 1-2, Privy Council Appeal No. 3 of 1998, Judicial Committee of the Privy Council, 1999.
  11. ↑ 11.0 11.1 Gregg v. Georgia, 428 U.S. 153 (1976).
  12. ↑ Lockett v. Ohio, 438 U.S. 586 (1978).
  13. ↑ 13.0 13.1 Roberts v. Louisiana, 428 U.S. 325 (1976).
  14. ↑ 14.0 14.1 Sumner v. Shuman, 483 U.S. 66 (1987).
  15. ↑ 18 U.S. Code § 3592 - Mitigating and aggravating factors to be considered in determining whether a sentence of death is justified.
  16. ↑ Ashford, Jose B.; Kupferberg, Melissa (3 October 2013). Death Penalty Mitigation: A Handbook for Mitigation Specialists, Investigators, Social Scientists, and Lawyers. Oxford University Press. p. 22. ISBN 978-0195329469.
  17. ↑ 17.0 17.1 Takahashi, Norio (August 5, 2014). Death Penalty for Hikari City Mother-Child Murder Case: Victim Relief by Restorative Justice. http://www.yomiuri.co.jp/adv/wol/dy/opinion/society_080514.html. Retrieved March 30, 2016. 
  18. ↑ 18.0 18.1 18.2 18.3 Lu, Hong; Li, Yudu; & Hu, Charlotte (2015). "The Criminal Justice System and the Death Penalty." In Bin Liang and Hong Lu (eds.). The Death Penalty in China: Policy, Practice, and Reform. Columbia University Press. pp. 31-61. ISBN 978-0231170079.
  19. ↑ 19.0 19.1 "Report on the Work of the Supreme People's Court". The Supreme People’s Court. The Supreme People’s Court of the People’s Republic of China. May 8, 2014. Retrieved March 30, 2016.[dead link]
  20. ↑ 20.0 20.1 20.2 MacQueen, Benjamin (2009). Political Culture and Conflict Resolution in the Arab Middle East. Academic Monographs. p. 108. ISBN 9780522856248.
  21. ↑ "European Union OSCE Permanent Council N 1086, Vienna, 21 January 2016: EU Statement on the Death Penalty in Belarus". Organization for Security and Co-operation in Europe. January 21, 2016. Retrieved April 6, 2016.
  22. ↑ "UN rights expert calls on Belarus to impose death penalty moratorium, halt executions". UN News Centre. United Nations. April 25, 2014. Retrieved April 6, 2016.
  23. ↑ (September 25, 2015) Human Dimension Implementation Meeting, Warsaw, 21 September – 2 October 2015, Working Session 8: Rule of Law I, Contribution of the Council of Europe: Exchange of Views on the Question of Abolition of Capital Punishment . Council of Europe, 1. Report.
  24. ↑ "EU Policy on Death Penalty". European Union External Action. European Union. Retrieved April 5, 2016.
  25. ↑ "Death Penalty Database: Belarus". Death Penalty Worldwide. Cornell Law School. Archived from the original on June 24, 2015. Retrieved April 5, 2016.
  26. ↑ Criminal Code of the Republic of Belarus, art. 92, 2009.
  27. ↑ Criminal Code of the Republic of Belarus, art. 59.2(1), 2009.
  28. ↑ Criminal Code of the Republic of Belarus, arts. 59.2(2), 93, 2009.
  29. ↑ Criminal Code of the Republic of Belarus, art. 59.2(3), 2009.
  30. ↑ 30.0 30.1 "Criminal Proceedings". United Nations International Criminal Tribunal for the former Yugoslavia. United Nations. Retrieved March 30, 2016.
  31. ↑ "Background Information on the Justice and Reconciliation Process in Rwanda". Outreach Programme on the Rwanda Genocide and the United Nations. United Nations. 2016. Retrieved March 30, 2016.
  32. ↑ Lovemore Munlo (November 27, 2004). The Enforcement of Sentences in the ICTR (Speech). International Criminal Tribunal for Rwanda Headquarters, Arusha, Tanzania. http://ictr-archive09.library.cornell.edu/ENGLISH/colloquium04/munlo.html. 
  33. ↑ 33.0 33.1 "Frequently Asked Questions". International Criminal Court. Cour Pénale Internationale. Archived from the original on October 20, 2015. Retrieved March 30, 2016.
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