[CHALLENGE] Repeal P. Innocents

[Imperium Anglorum]

Honest Mistake

I had this prepared earlier today, but there were IRL commitments that made it impossible for me to submit it earlier. Some people noted an earlier version. That one had some errors which happened. I wanted to delete them and fix it, but then I got hit with those commitments. If you want to attack me for prioritising IRL first, I don't know what to say to you. I forgot about it until my major update alarm was what reminded me to vote and then, making the connection, to submit it. I offer my sincerest apologies.

Objectively false statements are not permitted in repeals. See [2018] GAS 6, available here viewtopic.php?p=34338285#p34338285; see also [2018] GAS 8, available at viewtopic.php?p=34583513#p34583513. In both cases, the mere existence of incorrect statements is found to constitute an Honest Mistake. This is especially so in the case of [2018] GAS 6, where the incorrect statement had little to no impact on the claims or impacts in the illegal repeal.

I identified two.

(1) Criticising(i) "arbitrarily prohibiting member states from extraditing criminals to nations with capital punishment, even those who agree to abide by the protections of the target resolution".

The target resolution says:

Member nations shall not extradite, except to World Assembly judicial institutions or jurisdictions without capital punishment, any person charged or likely to be charged with a capital offence.

Two arguments. First, criminals are persons who have been found guilty of a crime, not those who have been charged of such a crime (some astute observers will note that such an interpretation would mean the guilty can be extradited, but that is not the case, due to Banning Extrajudicial Transfer). To say that criminals are the persons affected is factually incorrect, for the target resolution only deals with persons charged or likely to be charged with capital offences.

Second, even if criminals includes persons who are accused of a crime (which it doesn't), then there still has to be dealt with the claim that criminals are barred from being extradited to nations with capital punishment. This is false. A convicted burglar who is wanted on extradition to another nation that has capital punishment will not be barred by my resolution, since that person is not likely to be charged with a capital offence.

Criminals are not barred from being extradited to nations with capital punishment. They are barred from being extradited to nations where they could suffer capital punishment. The former is a significantly more broad claim, since most offences and extraditions are not for capital offences. To claim that is the case is both factually inaccurate and a massive overstatement of the scope of section 7.

(2) Criticising(j) "seemingly permitting a defendant to avoid capital punishment by simply not "exhaust[ing] all available appeals" because then the Division cannot certify the case"

The Division can certify the case if all available appeals are not exhausted. See section 4(g), which states in part:

the Division shall decide whether to certify that all burdens of proof are met, there has been due process, and all conclusions on evidence are justifiable. If certification is withheld, the Division may dismiss or remand the case.

The use of the word 'to certify' and 'certification', immediately after it, is central to determining the scope of what certification is. Certification is given when when burdens of proof are met, there has been due process, and all conclusions on evidence are justifiable.

The other part which is relevant about certification, saying that "the Division has certified that there exist no irregularities in the case record", cannot be used to justify this clause insofar as there is no irregularity in a case record that does not yet exist. Moreover, if one were to interpret an irregularity to exist insofar as there is no appeal, then the repeal argument violates RNT. See [2017] GAS 8, available at viewtopic.php?p=32043541#p32043541 ("But if we accept the premise, that still doesn't make the repeal legal. If the premise is not an Honest Mistake, it's gibberish because it bears no relation to actual national practice, and therefore doesn't belong in a repeal argument, while if it does claim relevance to national practice it is false and therefore an Honest Mistake").

A defendant not "exhaust[ing] all available appeals" does not create a barrier to the Division certifying a case because the Division is not empowered to withhold certification for such a reason. The argument is false.

---

Text of target resolution: (Sourced from viewtopic.php?p=34697401#p34697401)

Preventing The Execution Of Innocents
A resolution to improve worldwide human and civil rights.

Category: Civil Rights
Strength: Mild
Proposed by: Imperium Anglorum

Description: Whereas there is considerable disagreement in the Assembly about the merits of banning capital punishment:

And whereas it is best to set a compromise, where the Assembly does its best efforts to permit, with effective regulations, capital punishment so to best reduce the chance of it falling upon those who have not committed the crime they are accused of:

Be it enacted by the World Assembly, as follows :—

1. Subject to World Assembly legislation, member nations are permitted to sentence and carry out capital punishment within their jurisdictions.
   
   
2. There shall be created a Capital Cases division in the Judicial Committee of the Compliance Commission, here referred to as the Division, staffed with competent jurists and forensic scientists, to review submitted cases. To prevent the Division from being overwhelmed by requests for review, any one jurisdiction shall submit no more than than one capital case per million inhabitants per year. For the purposes of avoiding confirmation bias in assessments, the Division shall not keep records of capital punishment procedures.
   
   
3. Member nations shall not attempt to pervert justice by unduly influencing the defendant or defence counsel. Nor shall member nations require or coerce the defendant or defence counsel to make decisions which may damage their defence or, in the case of counsel, the welfare of their client.
   
   
4. Member nations, when prosecuting capital cases, shall:
   
   
   1. establish an office of a solicitor, specialised in the prosecution of capital cases, who shall conduct the prosecution of all capital cases within their jurisdiction,
      
      
   2. provide the defendant with adequate representation at the state's expense, barring concurrent representation, if the defendant is unable to pay for such counsel,
      
      
   3. provide the defence with all evidence collected in the process of investigation,
      
      
   4. provide the defence ample time, no less than one year, to review and examine that evidence,
      
      
   5. prohibit evidentiary barriers from barring the defence admission of evidence,
      
      
   6. prove, such that there could not arise evidence (foreseeable at the time of trial) that would cast doubt on the guilt of the defendant for any charge which could carry a capital sentence, and
      
      
   7. submit for review, to the Division, all facts of the case and conclusions reached at trial, at which time the Division shall decide whether to certify that all burdens of proof are met, there has been due process, and all conclusions on evidence are justifiable. If certification is withheld, the Division may dismiss or remand the case.
5. In all cases where a capital sentence is issued, before it is carried out,
   
   
   1. member nations shall serially provide the Division and all counsel assigned or associated with a case, six months to discover, examine, and verify exculpatory evidence which could exonerate the defendant,
      
      
   2. permit the defendant full access to the national appellate system and appeal to the Division upon discovery of possibly exonerating evidence or admissible evidence which casts into doubt the narrative put forth by the prosecution at the time of trial, and
      
      
   3. provide to the defendant, in any legal proceedings related to their capital conviction, the same privileges afforded to defendant during and after the original trial.
6. Member nations shall not issue a capital sentence on any mentally incompetent person, as punishment for any non-violent crime, or as punishment for any crime not directly affecting more than one person. All capital sentences shall be carried out via a method which is, upon review demanded by any party to a capital case, proven beyond any reasonable doubt not to cause pain or suffering.
   
   
7. Member nations shall not extradite, except to World Assembly judicial institutions or jurisdictions without capital punishment, any person charged or likely to be charged with a capital offence. Nor shall any person be extradited to a place likely to commence judicial proceedings, which would contravene World Assembly legislation, against that person.
   
   
8. No member nation shall carry out a capital sentence on any person which has not had their case record certified by the Division within the last year. Nor shall member nations carry out such a sentence before the Division has certified that there exist no irregularities in the case record, the defendant has exhausted all available appeals, or the Division has certified that all procedures involved with carrying out that capital sentence comply with provisions set forth in World Assembly legislation.
   
   
9. All individuals currently sentenced to capital punishment or charged of a capital crime shall be afforded the protections of this resolution.

Votes For: 9 244 (52.2%)
Votes Against: 8 475 (47.8%)

Implemented Mon Sep 17 2018

[443 GA on NS] [Official Debate Topic]

Text of repeal: (Sourced from copy-paste of the at vote text, with lists manually put in)

General Assembly Resolution At Vote

Repeal: “Preventing The Execution Of Innocents”

A resolution to repeal previously passed legislation.

Category: Repeal

Resolution: GA#443

Proposed by: Auralia

General Assembly Resolution #443 “Preventing the Execution of Innocents” (Category: Civil Rights; Strength: Mild) shall be struck out and rendered null and void.

Affirming that member states should take all reasonable steps to avoid executing an innocent person;

Regretting that GAR #443, "Preventing the Execution of Innocents", sought to accomplish this goal by establishing an international judicial mechanism for reviewing capital convictions (herein referred to as the "Division") that is grossly unfair, absurdly complex, full of ambiguities, and seems designed to ban capital punishment in all but name;

Criticizing the target resolution in particular for:

1. demonstrating a fundamental lack of respect for the judicial systems of member states by subjecting every capital case to invasive World Assembly oversight, even when there is zero evidence of negilgence or malpractice,
   
   
2. engaging in unjust discrimination on the basis of member state population by requiring member states to submit "no more than than one capital case per million inhabitants per year" to the Division, rendering it difficult or impossible for smaller nations of fewer than one million people to use capital punishment,
   
   
3. contributing to violations of the basic principles of justice by forcing member states to treat similarly situated convicts differently with respect to their eligibility for capital punishment, depending on whether the member state happened to exceed the aforementioned quota,
   
   
4. blocking valid limits to discovery, such as personally identifying information that is not material to the case, by requiring that the defense be provided with "all evidence collected in the process of investigation" without exception,
   
   
5. blocking valid limits to the admission of evidence, such as proof of fabrication, by requiring member states to "prohibit evidentiary barriers from barring the defence admission of evidence" without exception,
   
   
6. requiring member states to meet the effectively impossible standard of proving that "there could not arise evidence (foreseeable at the time of trial) that would cast doubt on the guilt of the defendant" rather than the more common standard of proving guilt beyond reasonable doubt,
   
   
7. creating needless delay by requiring an additional post-sentencing discovery period of six months each by the Division and the defense, and by arbitrarily requiring these periods to occur serially rather than concurrently,
   
   
8. arbitrarily prohibiting the execution of those who have brutally tortured and killed only one person as opposed to several,
   
   
9. arbitrarily prohibiting member states from extraditing criminals to nations with capital punishment, even those who agree to abide by the protections of the target resolution,
   
   
10. seemingly permitting a defendant to avoid capital punishment by simply not "exhaust[ing] all available appeals" because then the Division cannot certify the case, and
    
    
11. arbitrarily expiring Division certification after only one year even if there have been no material changes to the case record, and providing no clear mechanism for certification to be renewed;

Supporting the passage of true and lasting compromise legislation on the issue of capital punishment;

The General Assembly,

Repeals GAR #443, "Preventing the Execution of Innocents".

[Imperium Anglorum]

To respond to this, because I know it's coming:

The ability to challenge the legality of a proposal is a part of the process and was done as openly as the rest of the processs. Just because it was recognized as an illegal by the secretariat on review, does not mean it was undemocratict. Democracy by itself is nothing more but two wolves and a lamb decinding what's for lunch. A well ordered Democracy is a well educated lamb contesting the results.

"Yeah, thanks for the civics lesson Internet Benjamin Franklin. Call it whatever you want; I know a hustle when I see one. On that note, don't think I didn't see that Challenge go up and then vanish earlier today." Here Riley looks in the direction of the IA delegation. "If that magically reappears once the repeal of Preventing The Execution Of Innocents is a day or two into its vote with some BS story about why it's so late you can expect me to be there. The Secretariat might not care that it's being played, but I sure as hell do."

I have a dissertation to submit and other IRL commitments to deal with. You have my apologies for not submitting this "on time". I'm not going to apologise also for not prioritising NS legality challenges above my actual professional life. If you think that's unreasonable and ridiculous, I'm not exactly sure what to say to you.

Yea, and if you want to impute some kind of motive. That doesn't make any sense. If I wanted to argue that the proposal is illegal for maximum procedural delays, then I would first wait a couple of days, see if it is failing or not, and then if it is, submit each argument one at a time so that I can pull some more stuff out for when the repeal is resubmitted. But I think that's profoundly poor and a uniquely destructive practice. It's bad for the game, I won't do it.

Moreover, I have incentives to submit earlier because I have a repeal in the queue. I would much rather have it appear right after the last than be interspersed with another one, to maintain momentum. I've been playing this game long enough to know how to maximise procedural roadblocks and minimise harms to my agenda.

[Auralia]

First, criminals are persons who have been found guilty of a crime, not those who have been charged of such a crime (some astute observers will note that such an interpretation would mean the guilty can be extradited, but that is not the case, due to Banning Extrajudicial Transfer). To say that criminals are the persons affected is factually incorrect, for the target resolution only deals with persons charged or likely to be charged with capital offences.

A person convicted of a crime was necessarily charged with that crime, given existing resolutions on due process. The fact that the charge was proven does not mean that the charge ceases to exist. The state still formally claims that the person committed the crime. So by using the term "criminals", the repeal simply refers to a subset of persons "charged or likely to be charged with a capital offence".

Second, even if criminals includes persons who are accused of a crime (which it doesn't), then there still has to be dealt with the claim that criminals are barred from being extradited to nations with capital punishment. This is false. A convicted burglar who is wanted on extradition to another nation that has capital punishment will not be barred by my resolution, since that person is not likely to be charged with a capital offence.

The phrase "with capital punishment" should be interpreted in the context of that clause, which is about the extradition of criminals. It means that the nation will conceivably employ capital punishment against the criminals being extradited, not that the nation uses capital punishment for some arbitrary set of offences that have nothing to do with the extradition. In other words, it should be interpreted as shorthand for the extradition restriction in the original resolution, which applies to "person[s] charged or likely to be charged with a capital offence."

The Division can certify the case if all available appeals are not exhausted.

I think this may be correct. The argument in the repeal is based on the following clause, which I think I misread:

No member nation shall carry out a capital sentence on any person which has not had their case record certified by the Division within the last year. Nor shall member nations carry out such a sentence before the Division has certified that there exist no irregularities in the case record, the defendant has exhausted all available appeals, or the Division has certified that all procedures involved with carrying out that capital sentence comply with provisions set forth in World Assembly legislation.

The clause is entirely about Division certification, except for the subclause "the defendant has exhausted all available appeals". I initially read that subclause as being part of a larger clause starting with "the Division has certified that...", but I think that was a mistake.

My only defence is that it is indeed true that member states cannot execute a person unless they have exhausted all available appeals. However, that is the case simply because the resolution forbids it, not because the Division cannot certify the case until this occurs.

[Imperium Anglorum]

So by using the term "criminals", the repeal simply refers to a subset of persons "charged or likely to be charged with a capital offence".

Come on! And when I said* "international court", I simply referred to a subset of international courts which have the ability to prosecute war criminals and perpetrators of genocide and provide justice to "victims of war crimes and other crimes against humanity"! (corrected tense)

The phrase "with capital punishment" should be interpreted in the context of that clause, which is about the extradition of criminals. It means that the nation will conceivably employ capital punishment against the criminals being extradited, not that the nation uses capital punishment for some arbitrary set of offences that have nothing to do with the extradition. In other words, it should be interpreted as shorthand for the extradition restriction in the original resolution, which applies to "person[s] charged or likely to be charged with a capital offence."

I'm not sure how that is exactly the case. The repeal plainly says "arbitrarily prohibiting member states from extraditing criminals to nations with capital punishment". I read the underlined portion as being a nation which possesses capital punishment, not as a nation which possesses capital punishment which could be applied to a certain set of persons.

[Auralia]

So by using the term "criminals", the repeal simply refers to a subset of persons "charged or likely to be charged with a capital offence".

Come on! And when I said* "international court", I simply referred to a subset of international courts which have the ability to prosecute war criminals and perpetrators of genocide and provide justice to "victims of war crimes and other crimes against humanity"! (corrected tense)

That's not quite the same. The repeal being challenged here refers to a subset of a set explicitly described by the original resolution. In your repeal, you used a broad term that actually referred to something more narrow.

A better parallel would be the "with capital punishment" language used by the repeal being challenged here, which does use broad language to refer to something more narrow. But I think it makes sense in context, just as your use of the term "international court" makes sense in context. That is why I said in the legality thread that "one might err on the side of legality given the arguments that follow [the "international court"] clause".

[Auralia]

I'm not sure how that is exactly the case. The repeal plainly says "arbitrarily prohibiting member states from extraditing criminals to nations with capital punishment". I read the underlined portion as being a nation which possesses capital punishment, not as a nation which possesses capital punishment which could be applied to a certain set of persons.

I agree that is one reading, though for what it's worth it's not what I meant. I meant it to refer to a nation that would plausibly execute the criminals being extradited.

Clearly the language is at least unclear, and I will change it in a future submission (should that be necessary).

[Imperium Anglorum]

Come on! And when I said* "international court", I simply referred to a subset of international courts which have the ability to prosecute war criminals and perpetrators of genocide and provide justice to "victims of war crimes and other crimes against humanity"! (corrected tense)

That's not quite the same. The repeal being challenged here refers to a subset of a set explicitly described by the original resolution. In your repeal, you used a broad term that actually referred to something more narrow.

If we take criminals to mean people who are charged with offences, criminals is also a superset of the people who are "charged or likely to be charged with a capital offence". Criminals means far more than solely those who are found guilty of capital offences.

[Auralia]

That's not quite the same. The repeal being challenged here refers to a subset of a set explicitly described by the original resolution. In your repeal, you used a broad term that actually referred to something more narrow.

If we take criminals to mean people who are charged with offences, criminals is also a superset of the people who are "charged or likely to be charged with a capital offence". Criminals means far more than solely those who are found guilty of capital offences.

In that sense, I think that's true. I meant "criminals" to be interpreted as "persons who have been convicted of what would be considered a capital offense in the destination country". That in turn is a subset of those who are "charged or likely to be charged with a capital offence".

[Aclion]

That's not quite the same. The repeal being challenged here refers to a subset of a set explicitly described by the original resolution. In your repeal, you used a broad term that actually referred to something more narrow.

If we take criminals to mean people who are charged with offences, criminals is also a superset of the people who are "charged or likely to be charged with a capital offence". Criminals means far more than solely those who are found guilty of capital offences.

[pedant]If we take criminals to mean people who are charged with offences then criminals would be a subset, not a superset. of people who are charged or likely to be charged.[/pedant]

[Bears Armed]

Read it, thinking about it...
... but conciseness in arguing is your friend.

[Liberimery]

One thing I have with this is that IA is forgetting that in the US (The only Common Law nation with Death Penalty that I'm aware of) that sentencing is not part of the determination of guilt but comes after guilt is established by the court (depending on the jurisdiction the Death Penalty is either recommended by the Jury after guilt is established OR by the judge at a sentencing hearing.). So there are situations where the person is found to be a criminal but not yet sentenced to death.

[Imperium Anglorum]

If we take criminals to mean people who are charged with offences, criminals is also a superset of the people who are "charged or likely to be charged with a capital offence". Criminals means far more than solely those who are found guilty of capital offences.

[pedant]If we take criminals to mean people who are charged with offences then criminals would be a subset, not a superset. of people who are charged or likely to be charged.[/pedant]

Consider that there exist criminals who are not charge for likely to be charged with a capital offence. I give you an example in the OP, burglars. Then you have your superset by contradiction.

Read it, thinking about it...
... but conciseness in arguing is your friend.

There's a tldr at the end of each section.

One thing I have with this is that IA is forgetting that in the US (The only Common Law nation with Death Penalty that I'm aware of) that sentencing is not part of the determination of guilt but comes after guilt is established by the court (depending on the jurisdiction the Death Penalty is either recommended by the Jury after guilt is established OR by the judge at a sentencing hearing.). So there are situations where the person is found to be a criminal but not yet sentenced to death.

I was under the impression that such a discretionary sentence with juries determining whether death shall be imposed, was, for a time, unconstitutional, at least if we follow what Douglas said:

In a Nation committed to equal protection of the laws there is no permissible "caste" aspect of law enforcement. [**2735] Yet we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position. In ancient [***359] Hindu law a Brahman was exempt from capital punishment, and under that law, "generally, [****26] in the law books, punishment increased in severity as social status diminished." We have, I fear, taken in practice the same position, partially as a result of making the death penalty [*256] discretionary and partially as a result of the ability of the rich to purchase the services of the most respected and most resourceful legal talent in the Nation.

The high service rendered by the "cruel and unusual" punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups.

A law that stated that anyone making more than $ 50,000 would be exempt from the death penalty would plainly fall, as would a law that in terms [****27] said that blacks, those who never went beyond the fifth grade in school, those who made less than $ 3,000 a year, or those who were unpopular or unstable should be the only people executed. A law which in the overall view reaches that result in practice has no more sanctity than a law which in terms provides the same.

[****28] Thus, these discretionary statutes are unconstitutional [*257] in their operation. They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on "cruel and unusual" punishments.

Any law which is nondiscriminatory on its face may be applied in such a way as to violate the Equal Protection Clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356. Such conceivably might be the fate of a mandatory death penalty, where equal or lesser sentences [***360] were imposed on the elite, a [**2736] harsher one on the minorities or members of the lower castes. Whether a mandatory death penalty would otherwise be constitutional is a question I do not reach.

Of course, this was overruled after some time. However it is, especially with the recent denials of stay (Sotomayor dissenting), Marshall especially was right. However that is, that does not change the fact that criminals are not barred from being extradited to nations with capital punishment.

[Wallenburg]

"Criminal" doesn't denote conviction. There are plenty of nonconvicted criminals.

[Liberimery]

[pedant]If we take criminals to mean people who are charged with offences then criminals would be a subset, not a superset. of people who are charged or likely to be charged.[/pedant]

Consider that there exist criminals who are not charge for likely to be charged with a capital offence. I give you an example in the OP, burglars. Then you have your superset by contradiction.

Read it, thinking about it...
... but conciseness in arguing is your friend.

There's a tldr at the end of each section.

One thing I have with this is that IA is forgetting that in the US (The only Common Law nation with Death Penalty that I'm aware of) that sentencing is not part of the determination of guilt but comes after guilt is established by the court (depending on the jurisdiction the Death Penalty is either recommended by the Jury after guilt is established OR by the judge at a sentencing hearing.). So there are situations where the person is found to be a criminal but not yet sentenced to death.

I was under the impression that such a discretionary sentence with juries determining whether death shall be imposed, was, for a time, unconstitutional, at least if we follow what Douglas said:

In a Nation committed to equal protection of the laws there is no permissible "caste" aspect 18Link to the text of the note of law enforcement. [**2735] Yet we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position. In ancient [***359] Hindu law a Brahman was exempt from capital punishment, 19Link to the text of the note and under that law, "generally, [****26] in the law books, punishment increased in severity as social status diminished." 20Link to the text of the note We have, I fear, taken in practice the same position, partially as a result of making the death penalty [*256] discretionary and partially as a result of the ability of the rich to purchase the services of the most respected and most resourceful legal talent in the Nation.

The high service rendered by the "cruel and unusual" punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups.

A law that stated that anyone making more than $ 50,000 would be exempt from the death penalty would plainly fall, as would a law that in terms [****27] said that blacks, those who never went beyond the fifth grade in school, those who made less than $ 3,000 a year, or those who were unpopular or unstable should be the only people executed. A law which in the overall view reaches that result in practice 21Link to the text of the note has no more sanctity than a law which in terms provides the same.

[****28] Thus, these discretionary statutes are unconstitutional [*257] in their operation. They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on "cruel and unusual" punishments.

Any law which is nondiscriminatory on its face may be applied in such a way as to violate the Equal Protection Clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356. Such conceivably might be the fate of a mandatory death penalty, where equal or lesser sentences [***360] were imposed on the elite, a [**2736] harsher one on the minorities or members of the lower castes. Whether a mandatory death penalty would otherwise be constitutional is a question I do not reach.

Of course, this was overruled after some time. However it is, especially with the recent denials of stay (Sotomayor dissenting), Marshall especially was right. However that is, that does not change the fact that criminals are not barred from being extradited to nations with capital punishment.

No. What was unconstitutional was a the "mandatory sentancing" of Death Penalty. The work around now in place is that Death Penalty may only be applied after weighing the balance of aggravating and mitigating circumstances (I.e. The defendant cannot be given death penalty for a single murder alone but can be given death penalty for a single murder of a prison guard if the defendant decides to break out of jail on a previous conviction (even if the one armed man really did it) and and the guard was killed during the commission of that crime.).

The jury determination of sentencing in death penalty is a unique aspect to the tradition sentencing phase of the crime that only occurs in certain states and only for a potential death penalty case. Other states require the judge to sentance the guilty party or even a panel of judges. In fact, for a potential death penalty, it is perfectly legal to dismiss death penalty abolishists from the jury pool and is expected.

None of which is relevant to my original point which is that sentencing normally is a separate affair to conviction and usually takes place about a month following a conviction, even in non-death penalty cases. Thus one can be a criminal while not being sentenced for the crime.

[Imperium Anglorum]

Wrong. You clearly didn't read what I quoted. Douglas says explicitly "Whether a mandatory death penalty would otherwise be constitutional is a question I do not reach". He says "these discretionary statutes are unconstitutional [*257] in their operation".

Also see the Lexis summary of his opinion:

Douglas, J., concurring, stated that it is cruel and unusual to apply the death penalty selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the boards, and that because of the discriminatory application of statutes authorizing the discretionary imposition of the death penalty, such statutes were unconstitutional in their operation.

In fact, Stewart directly contradicts your claim here:

The constitutionality of capital punishment in the abstract is not, however, before us in these cases. For the Georgia and Texas Legislatures have not provided that the death penalty shall be imposed upon all those who are found [**2762] guilty of forcible rape. [****108] And the Georgia Legislature has not ordained that death shall be the automatic punishment for murder.

[Liberimery]

And you're not even remotely arguing my point. You won't even cite the case you're selecting from and said it might even have been overturned. I'm not arguing minority over repesentation but to your OP. Which has nothing to do with cruel and unusual punishment.

[Xanthal]

The word "arbitrarily" is key in clause i of the repeal. "Arbitrarily" is not an absolute term; "arbitrarily prohibiting" doesn't mean "prohibiting in every case," it means "prohibiting based upon a discretionary judgment," in this case whether or not the individual is likely to face execution, which is, by the admission of IA's own delegation, precisely how the target is read. Further, as others have noted- and ignoring the rather pathetic semantic grasping at straws this challenge relies upon to make its case here- the fact that all people are protected by the language in clause 7 of the target resolution does not make it untrue that criminals are protected by it.

As to IA's second argument, that it is untrue the Division cannot certify a case unless all available appeals are exhausted, I cite the target text:
8. "No member nation shall carry out a capital sentence on any person which has not had their case record certified by the Division within the last year."
4g. "[T]he Division shall decide whether to certify that ... there has been due process."
8. "No member nation shall carry out a capital sentence ... before ... the defendant has exhausted all available appeals."
To spell it out for those not connecting the dots, the target specifies the exhaustion of all appeals as a part of due process for capital cases, that due process is required for certification, and that a person cannot be executed unless certification is obtained. The repeal clause j. "permit[s] a defendant to avoid capital punishment by simply not "exhaust[ing] all available appeals" because then the Division cannot certify the case" is therefore completely accurate, though perhaps not on the basis the Auralian delegation originally thought.

[Sierra Lyricalia]

Having drafted my own repeal of this particular target, I will be recusing myself from participation in any thread (public or among GenSec) having to do with this challenge.

[Imperium Anglorum]

And you're not even remotely arguing my point. You won't even cite the case you're selecting from and said it might even have been overturned. I'm not arguing minority over repesentation but to your OP. Which has nothing to do with cruel and unusual punishment.

Your claim is: "No. What was unconstitutional was a the "mandatory sentancing" [sic] of Death Penalty". That isn't the case, because what was unconstitutional was the ability to have discretion over whether or not capital punishment was imposed. I think I've shown that exceedingly clearly. It's also not difficult to find Furman v. Georgia, 408 US 238.

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The word "arbitrarily" is key in clause i of the repeal. "Arbitrarily" is not an absolute term; "arbitrarily prohibiting" doesn't mean "prohibiting in every case," it means "prohibiting based upon a discretionary judgment," in this case whether or not the individual is likely to face execution, which is, by the admission of IA's own delegation, precisely how the target is read. Further, as others have noted- and ignoring the rather pathetic semantic grasping at straws this challenge relies upon to make its case here- the fact that all people are protected by the language in clause 7 of the target resolution does not make it untrue that criminals are protected by it.

This is a poor argument. Because if you use that substitution, then Criticising(h) is now an honest mistake. Let's do the substitution:

arbitrarily prohibiting prohibiting based upon a discretionary judgment the execution of those who have brutally tortured and killed only one person as opposed to several,

And the target doesn't do that, because in fact, the target does not prohibit based on any judgement whatsoever. It creates a mandatory rule that must be enforced in all situations, which is as described. You can't have the word mean different things in different places where its use is unchanged. That's a pretty clear canon of interpretation. The most generous legality-challenge minimising way to read the clause is to read "arbitrarily" to mean its normal meaning, that is, "without reason".

Moreover, this still doesn't deal with the proof by contradiction in the second part of the first point in the OP:

criminals includes persons who are accused of a crime (which it doesn't), then there still has to be dealt with the claim that criminals are barred from being extradited to nations with capital punishment. This is false. A convicted burglar who is wanted on extradition to another nation that has capital punishment will not be barred by my resolution, since that person is not likely to be charged with a capital offence.

A burglar wanted on extradition to another nation that has capital punishment is not barred from being extradited, as the repeal claims. You cannot have the target resolution "arbitrarily prohibiting member states from extraditing criminals to nations with capital punishment" when there are a set of criminals which can be extradited to nations with capital punishment.

As to IA's second argument, that it is untrue the Division cannot certify a case unless all available appeals are exhausted, I cite the target text:
8. "No member nation shall carry out a capital sentence on any person which has not had their case record certified by the Division within the last year."
4g. "[T]he Division shall decide whether to certify that ... there has been due process."
8. "No member nation shall carry out a capital sentence ... before ... the defendant has exhausted all available appeals."
To spell it out for those not connecting the dots, the target specifies the exhaustion of all appeals as a part of due process for capital cases, that due process is required for certification, and that a person cannot be executed unless certification is obtained. The repeal clause j. "permit[s] a defendant to avoid capital punishment by simply not "exhaust[ing] all available appeals" because then the Division cannot certify the case" is therefore completely accurate, though perhaps not on the basis the Auralian delegation originally thought.

I already thought of that, although from a different perspective. From the OP:

The other part which is relevant about certification, saying that "the Division has certified that there exist no irregularities in the case record", cannot be used to justify this clause insofar as there is no irregularity in a case record that does not yet exist. Moreover, if one were to interpret an irregularity to exist insofar as there is no appeal, then the repeal argument violates RNT. See [2017] GAS 8, available at viewtopic.php?p=32043541#p32043541 ("But if we accept the premise, that still doesn't make the repeal legal. If the premise is not an Honest Mistake, it's gibberish because it bears no relation to actual national practice, and therefore doesn't belong in a repeal argument, while if it does claim relevance to national practice it is false and therefore an Honest Mistake").

The underlined warrant directly cross-applies. The warrant for that warrant is based on the underlined portion in the quote.

[Xanthal]

If you use that substitution, then Criticising(h) is now an honest mistake. Moreover, this still doesn't deal with the proof by contradiction in the second part of the first point in the OP.

It's not a substitution, it's one of the definitions of the word in the dictionary. It's my understanding that when multiple interpretations are possible that the one which preserves legality is assumed. That the word "arbitrarily" may be used one way in one clause and another in a different clause is, at worst, weaselly words which explicitly do not fall under the definition of an Honest Mistake. And since this definition, as noted in my initial response, does not denote that all extradition is barred, there is no contradiction.

Saying that "the Division has certified that there exist no irregularities in the case record", cannot be used to justify this clause insofar as there is no irregularity in a case record that does not yet exist. Moreover, if one were to interpret an irregularity to exist insofar as there is no appeal, then the repeal argument violates RNT.

The difference being that the language I'm citing makes sense and yours is a straw man. You may not be able to cite a case record that doesn't exist, but you can consider the omission of a required criterion for carrying out a capital sentence to constitute a denial of due process. No gibberish, no RNT implication.

[Bananaistan]

I'm struggling to see the relevance of the discussion about RL US practices.

On the second point of the challenge, it is a fact that the target, in clause 8, prevents the execution of a defendant unless they have exhausted all available appeals and the Capital Cases Division has issued the two separately required certifications. But there is nothing in the target which suggests that the defendant merely not exhausting all repeals would be enough for the CCD to withhold certification. The claim in clause j is false. I note Auralia has accepted this.

[Bears Armed]

Honest Mistake
*<snip>*
I identified two.

(1) Criticising(i) "arbitrarily prohibiting member states from extraditing criminals to nations with capital punishment, even those who agree to abide by the protections of the target resolution".

The target resolution says:

Member nations shall not extradite, except to World Assembly judicial institutions or jurisdictions without capital punishment, any person charged or likely to be charged with a capital offence.

Two arguments. First, criminals are persons who have been found guilty of a crime, not those who have been charged of such a crime (some astute observers will note that such an interpretation would mean the guilty can be extradited, but that is not the case, due to Banning Extrajudicial Transfer). To say that criminals are the persons affected is factually incorrect, for the target resolution only deals with persons charged or likely to be charged with capital offences.

Second, even if criminals includes persons who are accused of a crime (which it doesn't), then there still has to be dealt with the claim that criminals are barred from being extradited to nations with capital punishment. This is false. A convicted burglar who is wanted on extradition to another nation that has capital punishment will not be barred by my resolution, since that person is not likely to be charged with a capital offence.

Criminals are not barred from being extradited to nations with capital punishment. They are barred from being extradited to nations where they could suffer capital punishment. The former is a significantly more broad claim, since most offences and extraditions are not for capital offences. To claim that is the case is both factually inaccurate and a massive overstatement of the scope of section 7.

Disagreed on the first argument, because as the repeal doesn't actually say "all criminals" -- which would be inaccurate -- it can just as easily be read as "some criminals" which is okay. There's admittedly a bit of exaggeration involved in that wording, even under the latter interpretation, but it's no worse than some of the exaggeration that I've seen in some of your proposals (such as the current attempt at repealing 'On Universal Jurisdiction', for example).
Agreed on the second point.

(2) Criticising(j) "seemingly permitting a defendant to avoid capital punishment by simply not "exhaust[ing] all available appeals" because then the Division cannot certify the case"

The Division can certify the case if all available appeals are not exhausted.

After having re-read both pieces of legislation: Agreed.

[Imperium Anglorum]

Disagreed on the first argument, because as the repeal doesn't actually say "all criminals" -- which would be inaccurate -- it can just as easily be read as "some criminals" which is okay. There's admittedly a bit of exaggeration involved in that wording, even under the latter interpretation, but it's no worse than some of the exaggeration that I've seen in some of your proposals (such as the current attempt at repealing 'On Universal Jurisdiction', for example).
Agreed on the second point.

The Secretariat just discarded my Repeal "On Universal Jurisdiction" for saying that an international court could not be established. It did not say that any international court or all kinds of international courts could not be established. It could easily have been read as "some international courts", which "is okay".

If you would like to admit error in that repeal, especially since Separatist Peoples made that exact argument and I made a similar one saying that international court should be interpreted based on plain meaning, I would be happy to hear it. Unless that is going to suddenly happen or unless the identity of a person making a challenge now matters in evaluating them, these cases should be treated exactly the same.

It says "criminals" here. It does not say some specific sorts of criminals. Instead, on first glance, it would appear that criminals cannot be extradited to jurisdictions with capital punishment. There are criminals wanted for things that are not capital crimes. The claim made in the repeal is plainly false.

[Bears Armed]

Disagreed on the first argument, because as the repeal doesn't actually say "all criminals" -- which would be inaccurate -- it can just as easily be read as "some criminals" which is okay. There's admittedly a bit of exaggeration involved in that wording, even under the latter interpretation, but it's no worse than some of the exaggeration that I've seen in some of your proposals (such as the current attempt at repealing 'On Universal Jurisdiction', for example).
Agreed on the second point.

The Secretariat just discarded my Repeal "On Universal Jurisdiction" for saying that an international court could not be established. It did not say that any international court or all kinds of international courts could not be established. It could easily have been read as "some international courts", which "is okay".

If you would like to admit error in that repeal, especially since Separatist Peoples made that exact argument and I made a similar one saying that international court should be interpreted based on plain meaning, I would be happy to hear it. Unless that is going to suddenly happen or unless the identity of a person making a challenge now matters in evaluating them, these cases should be treated exactly the same.

Context. The exact wording used around the term in question makes a difference. If you had said

Seeing that this section prohibits the Assembly from establishing international courts,

then I might (repeat, "might"...) have considered the comparison you've just suggested correct... but what you actually said in your repeal was

Seeing that it is patently obvious that this section prohibits the Assembly from establishing an international court,

which -- at least to me -- "patently obviously" indicates a total restriction on creating any such court instead.
You're in danger of beginning to look like the sort of player who posts in Moderation to challenge warnings with complaints that "But you let [NAME} use that word in their thread". Context, context, context.
I am not going to waste time (especially as it's patently obvious that the 'discard' can't be reversed, anyway) discussing this argument any further.

[Imperium Anglorum]

Are there any other sections in the running for preventing the establishment of an international court? Because that's what patently obvious modifies: the section.