[Congressional Record Volume 141, Number 103 (Thursday, June 22, 1995)]
[Senate]
[Pages S8957-S8958]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


           THE ABOLITION OF THE DEATH PENALTY IN SOUTH AFRICA

 Ms. MOSELEY-BRAUN. Mr. President, the new Government of South 
Africa has just abolished the death penalty.
  As we all know, South Africa has undergone incredible changes in the 
last 2 years. They have achieved nothing short of a revolution--
peacefully, via the ballot box. They have abolished apartheid and 
rebuilt their government and institutions to reflect real majority 
rule. The American people can take pride in the fact that American 
leadership in imposing international sanctions played a significant 
role in making this negotiated revolution possible, and the Government 
of Nelson Mandela a reality.
  South Africa has looked to the United States as a model as it creates 
its institutions of government. I recently met with member of 
Parliament Johnny DeLange, chairman of the equivalent of our Judiciary 
Committee in the South African Parliament, who was in the United States 
to study how Congress and the Justice Department interact. Likewise, 
the new Constitutional Court, the equivalent of the Supreme Court, has 
looked to American jurisprudence for guidance in a variety of areas of 
the law.
  As a lawyer and a Senator, I take pride in the fact that South Africa 
is looking to our legal system and our body of laws as a model. But in 
the case of the death penalty, after thoroughly examining its practice 
in the United States, the 11 justices of the [[Page S 
8958]] Constitutional Court of South Africa unanimously concluded the 
death penalty is cruel and unusual punishment subject to elements of 
arbitrariness and the possibility of error.
  The case before the Constitutional Court, Makwanyane and McHunu 
versus State, stemmed from an intra-family murder-for-hire which 
occurred in July 1987. Five people died when their hut was set on fire. 
Both men who carried out the attack and the man who hired them were 
convicted of murder and sentenced to death. The issues raised before 
the court concerned not the facts of the crime, but rather the 
constitutionality of the death penalty. Attorneys for the defendants 
cited the long history of racial discrimination and the arbitrary 
application of the death penalty in the United States as grounds for 
outlawing this ultimate punishment. The South African court heard that 
the United States practice of leaving capital punishment to the 
discretion of the judge and jury opens the door to the inevitable 
influences of race, poverty, and the quality of representation.
  In effect, the South African court came to the same conclusion as 
former United States Supreme Court Justice Harry Blackmun, who 
concluded that the death penalty experiment has failed. Although 
Blackmun repeatedly voted to uphold capital punishment in the belief 
that the law could be channeled to guarantee its fair application, he 
ultimately decided that he could no longer ``Tinker with the machinery 
of death.''
  South Africa had a history of applying the death penalty in an even 
more arbitrary fashion than the United States. Until the use of the 
death penalty was suspended in February 1990, South Africa had one of 
the highest rates of judicial executions in the world. The previous 
government executed 1,217 people between 1980 and 1989. And, as in the 
United States, it was much more common for a black defendant to be 
sentenced to death than a white defendant. In 1988, 47 percent of black 
defendants convicted of murdering whites were sentenced to death; 2.5 
percent of blacks convicted of murdering other blacks were sentenced to 
death; while no whites convicted of killing blacks were given the death 
penalty.
  I want to emphasize that the abolition of the death penalty will not 
result in impunity for those who commit the most heinous of crimes. But 
South Africa concluded that even in the country they looked to for 
guidance, the United States, the death sentence had not been shown to 
be materially more effective at deterring or preventing murder than the 
alternative sentence of life imprisonment.
  The Government of South Africa has come to the decision that the 
recognition of the right to life and dignity is incompatible with the 
death penalty. I applaud them for it.


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