Sat, Mar 20, 2010 page8

• What is death penalty’s purpose?

  • By Lin Chyong-jia 林瓊嘉
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  Some time ago, when serving as a judge, I reluctantly passed the death sentence on a defendant only to discover, years later, that I had been wrong, and could have spared his life.

  Another time, acting for the defense in a capital case, I argued that the defendant should be given another chance because there was cause for compassion. I was with the defendant in his final dark hours, but I wasn’t able to save his life.

  I have also prosecuted a man accused of raping and murdering an insurance agent and another for kidnapping and killing a minor. I pushed for the death penalty in both cases because there was no question of the defendant’s guilt and death was the only fitting judgment.

  Having seen this issue from many sides, I know that retribution is not the answer and that mercy and tolerance are the only way to deal with resentment. Whether a guilty defendant lives or dies should depend on whether they truly repent their crime.

  One time I led the defense in a murder trial in which the punishment was commuted to a custodial term.

  When the defendant heard this, he confided in me: “When you’re in jail you have no contact with the outside world. You try to do the right thing and repent any bad things you do. It’s different when you are on the outside. Nothing seems to go your way, and there are too many temptations around. You try to live a normal life, but what can you do?”

  I find the sincere contrition he expressed quite moving.

  There is a saying in Chinese that it is possible to “lay down your arms and become a Buddha.”

  In other words, people can change. Surely anyone serious about repenting their wrongdoing should be given a second chance.

  Lawyers would like to see the end of the death penalty, but there are some important considerations to take into account.

  First, we cannot say whether or not the situation will get worse if we abolish the death penalty. It is possible, for example, that aggressors will kill their victims to silence them rather than risk spending the rest of their lives rotting in some prison cell. Dead men don’t talk.

  On the other hand, a fugitive from the law for a serious offense might be driven to desperate measures and even more brutal crimes if they knew they would be facing the death sentence if they were caught. What happens when the police finally catch up with these desperate criminals? Would this lead to more bloodshed that could otherwise have been avoided?

  Second, we need to take into account that the victim or the victim’s family is likely to want the defendant to receive the death sentence because it will give them some sense of closure, allowing them to come to terms with their grief and finding an outlet for their resentment. We need to find a way to mitigate their need for instant justice if capital punishment is abolished, to stop them from baying for blood and insisting on an eye for an eye and a tooth for a tooth.

  Third, I would say it’s important to think very carefully before professing to understand how the victim of a serious crime feels, if you are not directly involved or, indeed, have never been subjected to a serious crime yourself. If you have not been in that situation yourself, you will not be able to understand what they are going through.

  Of course, we should be able to exercise our compassion and humanity, but these should be applied equally to both the defendant and the victim. A murder victim has no way of recounting their side of the story: We only have access to the defendant’s version of events. We cannot apply our humanity and compassion exclusively to the perpetrator of the crime, in the absence of the victim.

  Human dignity is important, but the principle of fairness and justice in the law precludes us from offering it exclusively to the perpetrator.

  If keeping the death penalty has a stabilizing effect on society; if it makes law-abiding citizens feel safe in their homes; if it gives victims or their families a sense of closure and final retribution; and if it contributes to the overall well-being of society, is it really necessary to abolish it?

  The purpose of keeping the death penalty is not the metaphorical head on the spike, offering someone up as a sacrificial offering to the god of social sanctions. Instead, it effectively draws a line in the sand and says, to one and all: “Go no further if you value your life.” It’s about preventing kidnapping, rape, murder, the killing of innocents; it’s about guaranteeing the safety of the public and reducing the temptation of vigilante justice.

  Keeping the death penalty does, indeed, have its positive side. If we abolish it, will our capacity for tolerance and forgiveness really be more powerful than feelings of vengeful resentment? And without it, will the public feel safe, the victims satisfied?

  If Taiwan were a beautiful country free of malice, where tolerance and fortune were king, why would we need a police force to maintain public order? Why would we feel the need to hire security guards to watch over our property?

  And why would we insist on iron window grills and closed-circuit TV security systems? It’s quite a disconcerting proposition, suddenly abolishing capital punishment with insufficient prior consideration, flying in the face of the public’s wishes and reservations voiced by countless others, and with no real way to predict what the outcome will be.

  Lin Chyong-jia is a lawyer.

  TRANSLATED BY PAUL COOPER
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