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Title:The dilemma of discretion: a US perspective on the proposal for reform of the South African death penalty for murder
Author:Goldfarb, A.
Periodical:South African Journal on Human Rights
Geographic term:South Africa
Subjects:capital punishment
Abstract:On 2 February 1990, State President F.W. De Klerk suspended executions and proposed an extensive procedural reform of South Africa's death penalty. The subsequent proposal to amend the Criminal Procedure Act 51 of 1977 would require the court to consider mitigating and aggravating factors before deciding whether to impose the death sentence, and would allow an appeal of the death sentence in all cases. Although this proposal should be welcomed, it also means that the proposed increase of judicial discretion will exacerbate existing problems of arbitrariness and racial discrimination in the administration of capital punishment in South Africa. This article addresses the South African government's recent proposal for reform of the current death penalty statute for murder within the context of this dilemma. The first part argues that the extenuating circumstances exception to the current mandatory death penalty statute for murder already provides South African courts with a significant amount of discretion, and that increasing discretion will strengthen the potential for arbitrariness and discrimination. The second part considers the US Supreme Court response to similar concerns. The third part argues that South Africa's proposal for reform would confront the same obstacles as can be found in US Supreme Court death penalty jurisprudence. Notes, ref.