Thu, Jun 30, 2016 page8

• No place for rehabilitation potential

  • By Hsu Wun-pin 許文彬
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  Several people who have recently been convicted of murder have been sentenced to life imprisonment by the nation’s courts. They escaped the death penalty despite the severity of their crimes, as the presiding judges have said that they can be rehabilitated. Such rulings completely fail to meet the public’s expectations.

  As the administration of President Tsai Ing-wen (蔡英文) pushes for judicial reform, this is another major issue it must examine.

  For example, a case that was recently finalized involved the shooting of a female daycare instructor by a man surnamed Wu, who had been released from prison on parole after serving part of a sentence for killing another woman. Despite Wu’s recidivism and the clear evidence pointing to his guilt, it took judges seven years to rule that Wu should be sentenced to life imprisonment.

  According to a National Taiwan University professor of psychology who assessed Wu’s mental state, the reason he was spared the death sentence was because “the defendant has a high potential for rehabilitation.”

  Another case involved the rape and murder of a teenage girl by a group of five men, who tried to burn their victim’s body. Surprisingly, the five were sentenced to life imprisonment on the grounds that they have “rehabilitation potential,” as a psychological assessment carried out by National Taiwan University Hospital concluded.

  However, a defendant’s potential for rehabilitation is not a legally recognized reason for not handing down the death penalty, which means that there is no legal basis for using “rehabilitation potential” as a means of avoiding the death sentence.

  Furthermore, should this practice become generally applied, would it not mean that a psychologist, in effect, becomes a judge?

  As it stands, any defendant who manages to acquire a psychological assessment suggesting rehabilitation potential is likely to escape the death penalty. However, rehabilitation potential is only a possibility, it does not promise any results.

  As a medical term, it is safe and uncontroversial. Something that is so uncertain cannot become the reason why a vicious criminal should be exempted from the death penalty, and it does not reflect the spirit of the Criminal Code.

  Article 57 of the Criminal Code lists 10 factors a judge should consider when determining punishment. They are, in principle, restricted to circumstances that occurred prior to or during a crime, such as motive; purpose; means; stimulation perceived at the moment the offense was committed; disposition; education and intelligence of the offender; the offender’s relation to the victim; and the danger and damage caused by the offense.

  Even the 10th and last item on the list — the defendant’s attitude after committing the offense — can be observed during a trial. An offender’s potential for rehabilitation, on the other hand, cannot be proven until after the punishment has been announced and served, and clearly is not listed in the Criminal Code.

  Furthermore, the law says that “sentencing shall be based on the liability of the offender.” Therefore, how an offender turns out after serving their sentence should not affect the court’s decision regarding punishment — not to mention the fact that no one can foresee the future.

  Neither of the two international conventions protecting human rights oppose the death penalty when the offense is of the most severe kind. (It is worth noting that the Supreme Court did not mention them when announcing its rulings regarding the aforementioned cases.)

  The Judicial Yuan should immediately issue new guidelines stating that offenders who have committed the most severe offenses should be given the death penalty. As this guideline could apply to all criminal cases, it would not be an infringement on judicial independence.

  The nation’s prisons are packed, a phenomenon that has drawn international attention. Compared with Japan and South Korea, Taiwan has an embarrassingly high incarceration rate.

  One reason for this is an erroneous amendment to the Criminal Code 10 years ago that removed the rule stipulating that offenders would not be punished for each offense in a series of offenses — but allowed an addition of up to 50 percent of the final sentence. That rule was replaced with one stipulating a combined punishment for several offenses and increasing the maximum period of imprisonment from 20 years to 30 years.

  Another reason is the courts’ tendencies to replace the death sentence with life imprisonment. As a result, taxpayers’ money is spent on caring for the worst kind of offenders. They are not easy to handle as they have nothing to lose and are exempt from the death penalty.

  The only losers are ordinary, law-abiding citizens.

  Rehabilitation potential is not an acceptable reason to exempt an offender from the death penalty: it has no legal basis, and it violates common sense as well as public opinion. This is where judicial reform should start.

  Hsu Wun-pin is the honorary chair of the Chinese Association for Human Rights.

  Translated by Tu Yu-an
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