Ten years ago, respected judge Chen Chin-Hsien (陳欽賢) delivered a keynote address at the first Asian Regional Congress on the Death Penalty in Kuala Lumpur. At the end of his speech, he said something that has stayed with me ever since: “Those judges who clearly and firmly oppose the death penalty are truly fortunate. Judges like us — who still believe in retribution deep down, yet struggle against capital punishment — are the ones who truly suffer.”
Ten years later, in August 2024, I took early retirement from the Supreme Court after more than 25 years on the bench, more than 19 of them in criminal courts.
I have been openly abolitionist for more than a decade. I have never hidden my opposition to the death penalty. I do not know whether that makes me one of the “fortunate judges” Chen spoke of. What I do know is this: Being openly against capital punishment within Taiwan’s judiciary is not an easy life. However, it is a deeply meaningful one.
Taiwan still has the death penalty. Whenever a judge refuses to impose it, media outrage often follows and public opinion quickly turns vicious. Judges are labeled “dinosaurs,” a mocking term for those said to be out of touch with reality — especially by anonymous voices behind keyboards and screens.
Our government, whether by misunderstanding or political design, often equates “low judicial credibility” with “judges unwilling to sentence people to death.”
I believe this misconception helped motivate the Citizen Judges Act (國民法官法) of 2023, which introduced public participation in homicide trials — an apparent attempt to dilute the association between professional judges and resistance to capital punishment. Yet the pressure does not come only from outside. Within the judiciary itself, the tension is just as real.
A colleague once proposed a “national referendum among judges” to decide whether those who refuse to impose the death penalty should even be allowed to remain on the bench. He openly said: “Judge Chien is unqualified to be one of us. He should be expelled from the judiciary.”
Whenever I heard such words, I reminded my peers of this: Under international law, the death penalty — if it exists at all — is supposed to be reserved for the “most serious crimes,” as stated in Article 6 of the International Covenant on Civil and Political Rights. Yet after handling 40 or 50 homicide cases, I have never encountered one I could honestly call the “most serious” or the “most heinous.”
Albert Camus once wrote: “Times and manners change; a day comes along when the criminal who was executed too quickly no longer seems quite so guilty. By then it is too late.”
I have always loved criminal law and trial work. However, when I became senior enough to be promoted to an appellate criminal court, I made a different choice. For four years, I transferred to the administrative courts instead. Perhaps, deep down, I feared that one day I might be forced to impose a death sentence against my conscience. At that time, a death sentence in Taiwan could be imposed by a simple two-to-one vote — even if one judge dissented.
I used to tell my friends that if my name ever appeared on a judgement sentencing someone to death, I would rather resign than live with that.
Early in my career, I was almost a “homicide-designated judge,” handling five or six murder cases at once. In two of those cases, the presiding judge leaned toward capital punishment.
Quietly, privately, I persuaded another associate judge to vote with me. By a two-to-one majority, we blocked the death sentences. The presiding judge was furious and said he would write a dissent — but in the end, he did not.
Later, when I myself became presiding judge, perhaps my colleagues already knew my position, or perhaps the cases were simply not so “beyond forgiveness.” For a time, I was spared that moral quandary. However, I always knew the possibility would return.
In Taiwan’s ordinary courts, judges cannot publish dissenting opinions in panel cases. Dissents might only be recorded in confidential deliberation notes, never seen by the public.
For years, I dreamed that one day judges could publish dissents openly — so that I could publicly say that the death penalty is unconstitutional.
In 2016, that wish was partly fulfilled. I was invited to serve as an expert witness in a Mock Constitutional Court organized by former justice Hsu Yu-Hsiu (許玉秀) and civil society groups. I submitted a 40,000-word legal opinion arguing that the death penalty violates the Constitution. It was later published by the Taipei Bar Association, although never included in the judiciary’s recommended readings.
Still, I often asked myself: Even if I could write a powerful dissent in a real death penalty case, what good would it do? It would still come at the cost of a human life.
Perhaps that thought was the final straw. Perhaps that is why I eventually left the criminal courts and declined promotion.
Years later, I returned to the High Court, and then to the Supreme Court. During that period, I was fortunate to handle mostly corruption cases rather than homicides. It spared me the torment of choosing between conscience and law. Yet even then, I knew that under a majority-vote system, one person’s conscience can always be overruled.
During my three years on the Supreme Court, death sentences were rarely handed down. The atmosphere was cautious, even resistant. There were many reasons — political, social, legal — but I believe a crucial factor was that the President of the Judicial Yuan and the Chief Justice of the Supreme Court were personally opposed to capital punishment. They never said so publicly, but their influence was unmistakable.
A judicial leader’s attitude toward the death penalty shapes the climate in which other judges decide. We all understand this, even if we do not say it aloud.
A younger colleague once confided in me that he too opposed the death penalty, but lacked the courage to speak out. “What can I do?” he asked. I told him: “If you are a first-instance judge, simply refuse to impose it. Higher courts rarely overturn such decisions out of respect for trial court discretion. Many death sentences become final precisely because the first trial imposed them. Never underestimate your power — and never use the death penalty as a tool to ‘scare’ defendants.”
I have long believed that abolition of the death penalty must ultimately be decided by leaders. Under the separation of powers, the judiciary is the most appropriate branch to do so, because capital punishment is fundamentally a human-rights and constitutional issue.
Having the Constitutional Court declare it unconstitutional is the least politically costly path to reform.
In 2017, the Constitutional Court made history by legalizing same-sex marriage. I had hoped that in 2024 it would do the same for the death penalty.
It did not. In September of the same year, the court ruled that capital punishment remains constitutional, cloaking its reasoning in phrases such as “the most stringent due process” and “extreme caution.” The substance was simple: the Constitution still allows the state to kill.
In the 21st century, it is astonishing that a democratic constitutional review would serve not to abolish the death penalty, but to preserve it.
The ruling party breathed a sigh of relief. The opposition began advocating mass executions or life imprisonment without parole (LWOP), even mocking the judgment as a “de facto abolition.” The irony is that LWOP is normally introduced after abolition, as an alternative. In Taiwan, neither major political camp truly seeks to abolish the death penalty, yet both embrace its replacement.
Judgement No. 8 is widely described as achieving “de facto abolition” without formal abolition. This logic is deeply flawed. LWOP can only be justified after formal and actual abolition are achieved.
Political leaders should understand that solving social problems and creating a sense of security for the public can never be achieved by relying on the death penalty or harsher punishments. The death penalty only leads society away from the right direction.
Protests advocating the death penalty for child-abuse crimes reflect a tragic misdirection. No one opposes protecting children. The existence of the death penalty fundamentally fails to achieve that goal. Capital punishment neither prevents abuse nor addresses its structural causes; it merely offers an illusion of justice at the cost of human dignity.
Domestic reforms are the foundation of social stability and the best diplomatic and defense strategy. Marriage equality showed the world that Taiwan is not China. Abolishing the death penalty would do the same — demonstrating that Taiwan chooses human rights over repression, dignity over fear and conscience over killing.
Chien Chien-jung is an attorney-
at-law, former judge of the Supreme Court, adjunct lecturer in the Department of Law at Soochow University and assistant professor at the Graduate Institute of Law at Feng Chia University.
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