The decapitation of four-year-old Xiao Deng Pao (小燈泡, little lightbulb) in Taipei’s Neihu District (內湖) was a gruesome murder.
My son, a junior-high school student, wrote in school that “The incident proves that the death penalty does not have a deterrent effect and random killings continue to occur frequently, despite the existence of the death penalty.”
“However, it is rarely carried out ... and very few judges will issue [a death penalty]... It exists in name only,” his teacher said.
The same day, an editorial published in the United Daily News with the headline A society worshiping the death penalty vs a legal profession that disdains the death penalty said that legal circles, including practitioners, had an exaggerated disdain for the death penalty.
There are legislators who bluntly say that judges are unwilling to issue the death penalty in child killings, and every time a child is killed, they submit legal amendments requiring heavier sentences for child killers, seeking to restrict judges’ discretionary powers by prescribing the death penalty. According to proposed amendments, only under exceptional circumstances where there could be some degree of understanding for the perpetrator’s actions would it be allowed to issue a life sentence, but no sentence other than the death penalty would be allowed otherwise.
Is the general understanding of the death penalty and judges correct?
First, 32 convicts have been killed since President Ma Ying-jeou’s (馬英九) administration resumed executions in 2010. This amounts to an average of five to six killings per year and each execution comes as a great shock to society. How can anyone say that the death penalty is almost never executed?
Second, are legal practitioners really disdainful of the death penalty? Put aside the issue of prosecutors being very liberal in asking for the death penalty in murder cases, whether they call it “capital punishment” or “the most severe punishment.” What they want is for the judge to kill the defendant.
Since Ma took office in 2008, 47 people have had their death sentences approved by the Supreme Court and the minister of justice has not been able to kill people as fast as the verdicts have been confirmed. Add to that the countless number of death sentences issued by judges at different courts that still have to be approved by the Supreme Court.
The view that judges would not issue a death penalty in a child murder case is a misunderstanding. Of the 32 death penalties that have been carried out since 2010, 10 of the convicts had killed a child, including an arsonist. The reason that Kung Chung-an (龔重安), who killed a girl at Wenhua Elementary School in Taipei’s Beitou District (北投), which drew great attention, and Tseng Wen-chin (曾文欽), who killed a fifth-grade student in Tainan in 2012, did not receive the death penalty was that they were assessed to be suffering from mental illnesses, and according to Article 19 of the Criminal Code, a sentence reduction was mandatory. They also could not be given the death penalty due to the Act to Implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (公民與政治權利國際公約及經濟社會文化權利國際公約施行法). Therefore, the judges issued the heaviest possible verdict: a life sentence. It is worth noting that after 25 years — the legally stipulated release date — the Ministry of Justice can reject a convict’s release if it decides that they are still dangerous and that they have not repented, so that in practice they can be kept in prison until they die.
Judges who have never issued a death sentence or think that the death penalty is unconstitutional are ruthlessly criticized, ridiculed as “human rights” judges — as if there were “anti-human rights” judges — and blamed for “violating the law and breaking discipline.” The view that “the law allows for the death penalty, so why do you not issue a death sentence” makes one wonder whether the society is still in cruel times when issuing the death penalty was not a choice.
Some have also suggested that a referendum be held to ban such judges from the courtroom and the legal profession.
It is beyond comprehension that people can think that the legal profession disdains the death penalty. The correct view is that not only do most judges and prosecutors not disdain the death penalty, but they embrace its existence in the legal system, not to mention that quite a few judges — including Supreme Court justices — believe that the UN’s Act to Implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights is destroying the nation’s legal system and interfering with its sovereignty.
Knowing these facts, is there still anyone who thinks that legal circles disdain the death penalty? There is no other group that is as “law-abiding” as the community of judges. The nature of the death penalty is that it is a legal way for the state to kill, but it must first be approved by a judge. How could a judge dare go against the law? Most judges probably think that because it is necessary, it is right for them to kill people, and because there is nothing they can do about it, they do not talk about it.
Judges do not like to talk about how many people they have sentenced to death, because they know that issuing a death sentence arouses as much dislike as the crime that called for it. Issuing and executing a death penalty is not as common as having breakfast in the morning, but it is a part of the society and is rooted in the judicial system.
Anyone who says that the death penalty exists in name only in Taiwan, that judges do not want to issue the death penalty and that they disdain it is sorely mistaken.
Chien Chien-jung is a Taoyuan District Court judge.
Translated by Perry Svensson
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