A series of cruel murders has sparked public calls on outgoing Minister of Justice Chiu Tai-san (邱太三) to order executions to dissuade copycats.
Responding to public concern that the murders were connected to the government’s unwillingness to carry out capital punishment, Chiu said that executions must not be carried out in a state of anger.
On July 3, a court upheld the prison sentence of a man who beheaded a four-year-old girl, nicknamed Little Light Bulb (小燈泡), sparing him the death penalty, a move that was expected to trigger further public outrage.
The permanent tension between the death penalty and public anger is not exclusive to Taiwan.
The US Supreme Court’s 1984 opinion in Spaziano versus Florida quoted then-US Supreme Court associate justice John Paul Stevens, who stated in the 1976 opinion in Gregg versus Georgia case that “capital punishment is an expression of society’s moral outrage,” representing a kind of community sanction rather than any individual’s juridical judgement.
To issue a death penalty is to announce that a community believes an individual in that community has forfeited their right to life. Therefore, the death penalty cannot be understood as a general decision made in accordance with the law, but rather as a moral decision expressing the conscience of the community.
Harris versus Alabama in 1995 suggested that only jury members selected by the community can appropriately reflect “the conscience of the community.”
In ordinary cases in the US, juries or judges determine fact, while judges alone determine sentences, with the exception of death-penalty cases, which require the formation of a capital jury to decide the sentence. This means that a death sentence transcends legal issues, and is instead an ethical and moral issue.
As legal experts, judges are only dealing with legal issues within their community, while decisions regarding ethical and moral issues should be left to representatives of the members of that community, in this case capital juries.
The level of crime that should merit “society’s moral outrage” will be subject to contemporary standards or evolving standards of decency. This means that not even the legislature can stipulate mandatory capital punishment for certain crimes and predetermine who should be executed before a capital jury decides.
It is precisely because a death sentence differs from other punishments that individualized considerations should be allowed in such cases. No matter how similar one case is to another, both the accused and their lawyer should have the right to provide ample mitigating evidence for the capital jury to consider.
In Sumner versus Nevada Department of Prisons in 1987, the US Supreme Court ruled that a law mandating capital punishment for prisoners given a life sentence who commit murder while on parole was unconstitutional, officially ending the state’s mandatory death-sentencing statute.
In Furman versus Georgia in 1972, the US Supreme Court held the opinion that the judicial processes for capital punishment stipulated in state statutes were incomplete with the result that “the death penalty violated the Eighth Amendment prohibition on cruel and unusual punishment ... because it had been imposed in a seemingly random and inconsistent manner.”
This was tantamount to announcing the abolition of the death penalty, which triggered public discontent. States that wanted to reinstate capital punishment started to revise the legal procedures for handing down death sentences and filed a new challenge, and four years later, in Gregg versus Georgia, it was ruled that capital punishment was not necessarily unconstitutional.
Nevertheless, the US Supreme Court recognizes that the death penalty is different in kind from any other punishment, such as life imprisonment or a time-limited sentence, and so a special safety provision was required. While common cases comply with due process, capital cases must meet even higher standards, which is often referred to as “super-due process.”
Using the US as reference, it is evident that a close connection exists between capital punishment and the moral outrage of society at large, as capital punishment reaches beyond the legal realm into the ethical, moral and even philosophical realm.
The role that lawyers can play in the face of public anger and criticism is to maintain clarity, and insist on compliance with procedural justice and “super-due process.”
Lin Chen-hsien is the presiding judge of the Tainan District Court.
Translated by Chang Ho-ming
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