The murder of a 10-year-old boy whose throat was slit in an arcade in Tainan in December 2012, the multiple stabbings on a Taipei MRT train in May last year, the murder of a 14-year-old junior-high student in Hsinchu and the girl who had her throat slit at a Taipei elementary school last month were shocking. This, along with the fact that many of the victims were women and children, has set off heated debate about the death penalty.
Because this is an important social issue that involves complicated moral, ethical, legal, cultural, political and economic issues, the question of whether to abolish the death penalty — or implement a moratorium — has always divided Taiwan. A few days ago, the Taipei Bar Association and others joined hands to organize a second constitutional court simulation aimed at initiating an in-depth discussion about the death penalty.
Is the death penalty constitutional? Article 23 of the Republic of China (ROC) Constitution only authorizes the legislature to restrict people’s freedoms by law, but it does not provide authorization to deprive them of the fundamental right to life on which the right to freedom depends. Judging from the constitutional text, the death penalty violates the Constitution.
From the perspective of criminal policy, does the death penalty deter crime? International studies on the fluctuation in murder rates as a reflection of the existence of the death penalty examined the effect of executions on short-term murder rates, performing a multiple regression analysis of the relationship between the death penalty and the murder rate from the mid-1970s onward. These long-term, in-depth studies showed no correlation between murder rates and the existence of the death penalty.
It is worth noting that there have been studies that have found that the death penalty has the opposite effect to the one intended.
When sociologist David Phillips studied 22 executions reported in London newspapers from 1858 to 1921, he found that murder rates fell for two weeks, but that they increased after that. When criminologist William Bowers analyzed Phillips’ data, he found that the death penalty had a “cruelty effect” in that every execution resulted in an increase of 2.4 murders.
As a result, the US’ National Academy of Sciences concluded that based on the data available, researchers are unable to reach a consensus on the deterrent effects of the death penalty.
If there is no evidence that the death penalty has a deterrent effect on crime, capital punishment should not be legitimized. Based on a respect for life, the unsupported idea that the death penalty is a deterrent to crime cannot be used to deprive people of their lives.
Supporters of the death penalty say that even if there is no unambiguous scientific evidence to back the idea that the death penalty is a deterrent, it does not prove that there is not such an effect. With an almost religious determination, they continue to believe that the death penalty is a deterrent and they insist that retribution is a legitimate reason to maintain capital punishment. The result is a long-standing stalemate, as neither side is willing to budge.
By 2012, 140 countries had abolished the death penalty, while 58 nations, including advanced democracies such as Taiwan, Japan and the US, maintained it. While Taiwan does not have an absolute death penalty, there are still 50 offenses punishable by death, the highest number in the world. Whether this complies with the International Covenant on Civil and Political Rights is worth an in-depth discussion: Article 6 of the covenant says: “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes.”
Academia Sinica conducted public opinion polls in 1990, 1994 and 2006, which all showed that the public was opposed to abolishing the death penalty. However, if the death penalty were replaced by life imprisonment, the number of people who would approve of an end to capital punishment was 25 percent.
When Hong Kong abolished the death penalty in 1993, opinion polls showed that 71 percent of the public were opposed to the measure. However, after the abolishment in 1993, overall social order in Hong Kong saw great improvement and a prospering economy, resulting in a lower crime rate. This counters the argument that the abolishment of the death penalty will lead to deteriorating social order.
A system of life imprisonment could be established to replace the death penalty for major violent offenses, for example by dividing life imprisonment into different categories. Group A could be a “special life imprisonment” category, where the offender must serve 30 years in prison before being eligible for release, and that does not allow sentence reductions or amnesty. Category B, “regular life imprisonment,” would require offenders to spend 20 years in prison before being eligible for release, and they would also be eligible for early release through sentence reductions and amnesties.
This would mean that death-row inmates would serve the special life imprisonment and could only be released after 30 years, which means that the youngest would be more than 60 years old and less capable of committing new offenses once released.
Perhaps such a system would receive wider public support.
Some people might wonder how society should prevent such offenders from emerging in society. Taiwan Alliance to End the Death Penalty director of legal affairs Miao Po-ya (苗博雅) said: In addition to killing off “monsters,” we must be truly concerned with how to avoid creating such monsters in the first place.
The one thing these offenders have in common is that they have lost all hope for the future; extreme crime is a sign that there are serious social problems. If these offenders are executed based on the view that “such garbage have disqualified themselves from the right to live,” perhaps even angels might be turned into monsters.
Shih I-hui holds a doctorate in criminology.
Translated by Perry Svensson
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