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Abstract:
Capital punishment has been abolished in all Australian States. However, public demands for the reintroduction of the death penalty continue to be heard intermittently in Australia, especially after a gruesome murder or other atrocity. A discussion of the appropriateness and desirability (as opposed to the legality or illegality) of the death penalty is never completely removed from the Australian and American political agenda. An objective observer cannot fail to notice that, in general, such discussion is often carried on by people who have preconceived and inflexible views. An inevitable result is the polarisation of the capital punishment debate. In these circumstances, an insistence on cogent reasoning is clearly warranted.
Key words: death penalty, life imprisonment, cruel, inhuman and unusual punishment, discriminatory penalty, reciprocity, proportionality.
Introduction
Capital punishment has been abolished in all Australian States. However, public demands for the reintroduction of the death penalty continue to be heard intermittently in Australia, especially after a gruesome murder or other atrocity. In contrast, in 1976, the Supreme Court of the United States decided in Gregg v. Georgia[ 1] that the death penalty did not constitute "cruel and unusual punishment" and, therefore, was not prohibited by the Eighth Amendment to the United States Constitution[2]. This case settled the legal status of the death penalty in the United States and limited further capital punishment litigation to a discussion of the finer points of constitutional law. For example, is it permissible to impose the death penalty for crimes other than murder, or on juvenile or mentally handicapped defendants? [3]. Is an indigent death row inmate entitled to counsel in post-conviction clemency hearings?[4]. Is it constitutional to exclude from juries persons who are implacably opposed to the death penalty? Is mandatory capital punishment for some crimes constitutionally permissible? Is the lethal injection protocol constitutional?^]. Is it acceptable for juries in capital punishment cases to hear evidence about the victim's family?[6].
Thus, the public debate in the United States has largely shifted away from "the broader question of whether the death penalty should be permitted at all"[7]. In this context, it is interesting to note that the constitutional status of capital punishment has been settled despite the dogmatic insistence of Associate Justices Marshall and Brennan that capital punishment in...