The grounds given for arguments against the death penalty involve blurring the distinction between “retribution” and “revenge.” However, retribution is not supposed to be collective revenge. Rather, it is a means for society to solemnly declare its condemnation of a crime and to impose a proportional responsibility on the criminal. The words of Immanuel Kant — “whoever has committed murder, must die” — are representative of retributivist thought in the Enlightenment.
Kant asserted that life is irreplaceable and that in the scales of justice a life could be balanced only with another life. The notion that the penalty imposed must be proportional to the crime is the essence of Enlightenment retributivist thought and a mainstay of the criminal penalty system. When people call for harsher penalties as a solution in troubled times, it is a product of a distortion of deterrence theory, not of the Enlightenment retributivist view.
Human dignity arises from people’s freedom to overcome environmental restrictions and comply with moral principles. Precisely because human dignity arises from this freedom, accepting the just deserts demanded by moral principles is the last chance for a murderer to prove the dignity of life. There are in this world certain lofty values that transcend that of life, and justice is one such value. To allow one’s belief in justice to waver and think that life itself is the ultimate source of value and cannot be taken away under any circumstances actually detracts from the dignity of life. It is a world view that seems noble at first sight but actually is illusory.
Nevertheless, we must be extremely cautious. We may have faith in justice, but we should not make the mistake of thinking that worldly government authorities can assume the place of God and administer justice in an all-knowing and all-powerful way, and on that basis allow vengeance to run amok. The justice that worldly authorities seek is limited, and so is their ability to ascertain the truth.
It is, therefore, possible that they may put someone to death in error. More seriously still, governments may be corrupt and they may kill people indiscriminately. In view of the limited nature of justice, the utmost caution must be exercised in executing the death penalty, and multiple safeguards must be in place to cut down to near zero the possibility of wrongful execution. A trial is not only concerned with revealing the truth about a crime. When determining the penalty, moral outrage must not be allowed to cloud our understanding of and pity for the criminal.
In its judgment in the case of Gregg v Georgia in 1976, the US Supreme Court found the state of Georgia’s death penalty statute to be constitutional. The court’s reasoning was that Georgia had, through reforms to its criminal justice system, greatly improved its capital punishment procedures that had previously been arbitrary and capricious.
Georgia had separated the process of finding a defendant guilty or not guilty from that of sentencing. In the sentencing stage, only with the unanimous agreement of a jury and where there was at least one aggravating circumstance and no mitigating circumstances, and where guilt had been proven beyond reasonable doubt, could a death sentence be imposed. Georgia’s reforms later served as the blueprint for reform in the two-thirds of US states that retained the death penalty.
I can appreciate that the movement to abolish capital punishment in Taiwan gains strength from a reaction against indiscriminate killings under authoritarian rule in the past. During the 20th century, Europe, which is at the head of a global trend toward abolishing capital punishment, endured two world wars, the collapse of democracy and the Nazi Holocaust. Therefore, collective memory of corrupted states causes people there to be rather pessimistic about the ability of even democratic governments to uphold “limited justice.” That is understandable.
However, I do not think this means one should reject at a stroke the possibility of all democratic governments pursuing “limited justice.” Advanced democracies that retain capital punishment, such as the US and Japan, have tried hard to accomplish precisely this. To completely deny the possibility of ensuring “limited justice” makes it impossible for us to bring together all the forces in society that long for justice and have them work in unison to improve the system. Instead, we find ourselves bogged down in endless controversy.
If it is applied only to criminals who have committed heinous murders, capital punishment is in itself morally permissible. Whether Taiwan’s existing system is fit for the task of upholding justice is, however, another question. A principle of justice is that it is better to let a guilty person go than to kill an innocent. I have grave doubts about the ability of a criminal justice system that is incapable even of satisfactorily handling the Sijhih Trio case to bear the moral responsibility that comes with carrying out the death penalty.
For that reason, I call for legislation to institute a moratorium on executions and lay out a timetable for judicial reform. Widespread reforms of the system for examining the trial and execution of capital cases are called for.
Only when all death row prisoners’ cases have been reinvestigated under a new and improved procedure can all doubts about the crimes be removed. Only then can executions be resumed, and only in a very small number of cases involving murderers whose crimes are an affront to humanity.
Hsu Chia-shin is an assistant research fellow at Academia Sinica’s Institutum Iurisprudentiae.
TRANSLATED BY JULIAN CLEGG
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