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27 B.U. Int'l L.J. 173 (2009)
Guilty of Murder with Extenuating Circumstances: Transparency and the Mandatory Death Penalty in Botswana

handle is hein.journals/builj27 and id is 175 raw text is: GUILTY OF MURDER WITH EXTENUATING CIRCUMSTANCES: TRANSPARENCY AND THE MANDATORY DEATH PENALTY IN BOTSWANA ANDREW NOVAK* ABSTRACT The Southern African nation of Botswana retains a mandatory death sentence for the crime of murder, against the modern trend toward discretionary death penalty regimes. Since mandatory death sentences failed to control sentencing discretion, Southern African nations, including Botswana, introduced the doctrine of extenuating circumstances by which defendants may prove they lack moral blame- worthiness because of a factor that influenced their mind when com- mitting the crime. The doctrine, however, lacks many of the more transparent features of a discretionary death penalty regime; namely, it shifts the burden to the defendant, it does not apply objective guide- lines or standards outside of judicial precedent, and its application is subject to low scrutiny on appeal. The mandatory nature of Bot- swana's death penalty regime is not constitutionally required, and a discretionary death penalty would be more transparent and thus would better prevent arbitrary application and the possibility of mistake. I. INTRODUCTION ................... ........................ 174 II. DISCRETION AND THE MANDATORY DEATH PENALTY ..... 179 III. EXTENUATING CIRCUMSTANCES IN SOUTHERN AFRICA IN COMPARATIVE PERSPECTIVE .............................. 181 IV. TRANSPARENCY AND THE DOCTRINE OF EXTENUATING CIRCUMSTANCES IN BOTSWANA ........................... 187 A. The Doctrine of Extenuating Circumstances Fails to Adequately Guide Judicial Discretion in the Sentencing P rocess .......................... ..................... 193 B. The Doctrine Improperly Shifts the Burden to the D efendant ............................................. 194 * J.D. Candidate, Boston University School of Law, 2009; M.Sc. (Hons.) African Politics, School of Oriental and African Studies, 2006. The author would like to thank Jesse Fecker for his helpful comments on earlier drafts of the article. In addition, the author received significant assistance from the dedicated staff and fellow volunteers at the Ditshwanelo Botswana Centre for Human Rights in Gaborone, Botswana.

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