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Andrew Novak

The abolition of the death penalty is partly the result of sustained constitutional litigation in many retentionist jurisdictions. After abolition, the legacy of this litigation will be threefold: the empirical, the jurisprudential and the strategic. Empirically, the death penalty is among the most widely researched aspects of the criminal justice system. The United States Supreme Court has long scrutinized quantitative and qualitative death penalty research, and increasingly other jurisdictions such as Malaysia and Japan are following suit. Jurisprudentially, the growing constitutional recognition of a human dignity principle has also led to erosion of capital punishment. Because so much death penalty jurisprudence is premised on the protection of human dignity rather than the right to life, this body of law will have relevance to other forms of punishment including life imprisonment long after the death penalty is abolished. Finally, death penalty litigation was a success of strategic human rights litigation. Courts have long ‘shared’ constitutional jurisprudence, citing and cross-referencing one another’s cases. By bringing cases in a range of countries with similar constitutions, human rights lawyers were able to generate a growing consensus of courts against the death penalty, which became self-reinforcing as more and more courts scrutinized the capital punishment process.