This chapter aims to demonstrate that the fundamental human rights principle that no one should be subjected to (grossly) disproportionate punishment should be interpreted to take into account terminal illness of the offender. It should be applied both during imposition of the sentences and also during execution of already imposed sentences.
In order to reveal whether this principle takes into account serious medical conditions, including terminal illness of the offender in the calculus of the proportionality of punishment and whether it is applicable at the execution stage of sentences, this chapter examined the roots of the fundamental human rights principle of proportionality of punishment by briefly surveying the penal theory, jurisprudence, court cases, laws, and legislative history from the U.S. federal and state jurisdictions and from Europe.
There is a consensus among surveyed theories that terminal illness of the offender is an element of the principle of proportionality of punishment. Thus the fundamental human rights principle must be interpreted to take it into account. The principle should be observed not only at the imposition stage, but also at the execution stage of already imposed sentences.
This chapter re-examines the roots of the fundamental human right to not being subjected to (grossly) disproportionate punishment. It does so in order to demonstrate that the right should be interpreted to take into account terminal illness of the offender and that it should be observed not only at the imposition stage, but also at the execution stage of already imposed sentences.
I thank Professors Hans-Jörg Albrecht and Dirk van Zyl Smit for their helpful discussions on the topic of this chapter. Of course they are in no way responsible for my errors and opinions. Funding is provided by the Max Planck International Research Network on Aging (MaxNetAging).
Khechumyan, A. (2014), "Continued Imprisonment of Terminally Ill Prisoners in the United States: An International Human Rights Perspective", Punishment and Incarceration: A Global Perspective (Sociology of Crime, Law and Deviance, Vol. 19), Emerald Group Publishing Limited, Leeds, pp. 179-201. https://doi.org/10.1108/S1521-613620140000019008
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