Reducing the number of executions in Taiwan, while moving to eventual abolition of the death penalty is the stated goal of the Taiwanese government. As President Chen Shui-bian said in September of 2005, “My goal is to achieve zero executions within the shortest time and eventually abolish the death penalty.” This goal is part of a broad policy to integrate international human rights norms into Taiwan’s law and to foster a respect for human rights in Taiwanese society. While most aspects of human rights are welcomed by the public there is always one human rights issue that is controversial--abolition of the death penalty. It is a hot-button issue that often puts the good intentions of the government in sharp conflict with the public will.
The good news is there have been far fewer executions in recent years. In 1998 there were 32 executions, in 1999 there were 24, 17 in 2000, 32 in 2001, nine in 2002, seven in 2003, three in 2004 and the same in 2005. Equally good news is that the number of crimes which carry a mandatory death sentence has been greatly reduced.
The bad news is that the death penalty is still an option for a number of crimes, the public still supports the death penalty and executions are still being carried out.
The ugly news is that executions are generally by gunshot, a notoriously unreliable form of execution, and are carried out without impartial observers being present. Defense attorneys appointed to handle death penalty cases usually have very limited expertise in criminal matters in general and usually zero prior experience in handling death penalty cases.
Death penalty cases are handled in basically the same manner as any serious felony. Unlike places such as the United States, in Taiwan there is not a separate body of law or separate set of procedures that are followed in death penalty cases. Such cases follow the normal route through the criminal justice system. The only two procedural differences are that death penalty cases have automatic appeal to Taiwan’s Supreme Court and from there the cases are automatically reviewed by the Ministry of Justice (MOJ) prior to that ministry carrying out the execution.
The death penalty is mandatory for a very few crimes, such as murder in the course of a kidnapping or an act of piracy on the high seas. A mandatory death penalty crime is one where, if the judge finds the defendant guilty, he or she must sentence the defendant to death. With the repeal in 2000 of the controversial Act for the Control and Punishment of Banditry, most of Taiwan’s mandatory death sentence crimes have been converted to crimes where the death penalty is an option but not a requirement. Taiwan’s criminal code has a number of optional death penalty crimes including the fairly obscure crimes of sedition and treason and the unfortunately more common crime of murder.
Over the past decade a number of nongovernmental groups in Taiwan have campaigned for abolition of the death penalty. These groups include Amnesty International, the Taiwan Association for Human Rights, the Judicial Reform Foundation, the Catholic Church as well as a number of smaller non-governmental organizations (NGOs). What progress there has been toward limiting the use of the death penalty and the movements toward abolition are the result of these groups’ campaigning over the years. Amnesty International, both through its local chapter and through its worldwide network, has pressured successive Taiwanese governments to end executions and abolish the death penalty, and it has been joined in these calls and worked closely with the Taiwan Association for Human Rights.
The Catholic Church has had a leading moral role in calling for an end to the death penalty. In particular the John Paul II Peace Institute at Fu Jen Catholic University has been a major player in the drive for abolition. In 2001 the Peace Institute hosted a major conference on the death penalty that served to focus attention on the general problems of Taiwan’s death penalty. In 2004 Cardinal Paul Shan, bishop of Kaohsiung, went on record stating, “We have called on the government to abolish the death penalty in Taiwan. Many times I have spoken with President Chen Shui-bian and the minister of justice, making an explicit request for the law to be abolished immediately.”
On the Protestant side, the Taiwan Presbyterian Church has also campaigned vigorously against the death penalty. The Chi-nan Presbyterian Church in Taipei, which sits right next to the Legislative Yuan, has been the site for many candlelight vigils against the death penalty and a number of Presbyterian elders have been vocal in their calls for abolition. The Taiwan Presbyterian Church has long worked on a range of human rights issues including anti-death penalty work.
Putting a focus on the legal problems of Taiwan’s death penalty was a task taken up by the Judicial Reform Association. That group widely publicized a number of death penalty cases where serious legal errors went unresolved by the courts yet nonetheless the defendants were executed. Working together, these different groups within the Taiwanese NGO community were able to turn the death penalty into an issue that caught the attention of politicians and government officials.
The rhetoric from the president and the minister of justice is certainly lofty and noble with its promises to limit the use of the death penalty with total abolition soon following, but the move toward abolition faces a number of practical problems.
The first of these is public opinion. Given the fact that Taiwan is a democracy, public opinion and passions matter to elected officials, and opinion polls have shown that Taiwanese still favor retention of the death penalty. As the MOJ pointed out in a policy paper released in January this year, “opinion polls conducted in recent years show around 80 percent of respondents are consistently opposed to abolition of the death penalty.” The same report also concedes that, “whether to completely do away with the death penalty depends on the development of society, the maturity of concepts of law and order and popular consensus and support.”
There is an irony here: the same kind of opinion polls that show an acceptance of the death penalty also reveal that Taiwanese have a very poor view of their judicial system, complaining about the low quality of judicial reasoning and fact-finding. The public seems to say in one breath, “we think Taiwan’s judges do a very poor job of deciding cases,” and then in the next breath, “but despite that, executing people at the conclusion of these cases, which we think have been mishandled, is OK.” Such non-sequiturs are often part and parcel of the public’s view of the death penalty, which is often more driven by darker motives of revenge and fear instead of dispassionate reason and analysis.
It is not just public opinion that is at odds with the government’s aspirations toward abolition; many working prosecutors are for keeping the death penalty. Herein lies another irony; the MOJ holds press conferences committing it to abolition of the death penalty while 100 meters away in the Taipei District Court, some trial prosecutor is standing in front of a judge calling for the death penalty for some defendant. The two groups are aware of each other’s actions but the reality, often overlooked in foreign discussions of Taiwan’s prosecutorial system, is that the MOJ has no authority to dictate to ordinary prosecutors what their position should be on the appropriateness of calling for the death penalty in any particular case. As a result, the two groups are often going in different directions. One Taipei judge termed it, in private, as “hypocrisy” while another, giving a kinder assessment, simply noted that, “all the talk of abolition is mostly for foreign dignitaries, scholars and media.”
Whether or not that assessment is accurate, what is certain is that the desire for abolition of the death penalty is far from being shared by all prosecutors or judges. A stock feature piece that runs in both the Taiwanese and English language newspapers every few years is a profile of some Taiwanese prosecutor who is responsible for overseeing the actual executions. “Execution Prosecutors” express a “wild west” machismo about their support of the death penalty, that the country needs it to keep the streets safe for law-abiding folks and how unrepentant outlaws ought to die.
Another of the practical problems facing abolition of the death penalty in Taiwan is the fact that Taiwan’s criminal code does not provide for what is known as a “true life sentence.” What a “true life sentence” does is require that the defendant be kept in prison until the day they die. When a Taiwanese judge sentences a defendant to “life,” what that means is that the defendant is eligible for parole in 10 years. Under amendments to the Taiwanese Criminal Code, which went into effect in July this year, defendants sentenced to “life” are eligible for parole in 15 years. A “life sentence” does not mean “till you die in prison”; as a practical matter it means 10 to15 years then back on the streets.
And this is a legitimate public concern. What the public is thinking is that, since Taiwan does not have a true life sentence, dangerous murderers could be, and normally are, back on the streets rather than in prison. The public’s position, put crudely, is either lock these guys up forever or kill them; but do not put them back on the streets. The amendments to the Criminal Code, which were passed last year, would have provided an excellent opportunity for putting into Taiwan’s law a true life sentence. But that opportunity was lost for reasons unknown, and the MOJ did not really push the matter.
This acquiescence makes the MOJ’s claim that they are seriously committed to ending the death penalty ring a little hollow. The ministry knew that having a true life sentence in the criminal code would have been a major step forward in convincing the Taiwanese public to accept the abolition of the death penalty. They knew this because their own policy paper mentions it: “the [public’s] opposition [to abolition of the death penalty] falls to 40 percent, however, if complementary measures [by which they mean a true life sentence] are adopted.” But the opportunity was lost, and for the foreseeable future Taiwan will not have a way to “lock ’em up and throw away the key,” which equates in the public’s mind to “we have to have the death penalty to protect society from the really crazy killers.”
A broad problem facing abolition of the death penalty in Taiwan is the public’s perception that social order is somehow decaying and that Taiwan is becoming a more dangerous place to live because of rising crime rates. A public perception that the streets are not safe is not a very fertile ground for abolition of the death penalty. This is a broader and deeper problem than simply the opinion polls problem mentioned earlier.
This problem can be put in a historical perspective. Both the Japanese period and the long period of martial law were authoritarian times when the government kept a tight rein on public information. As a result, the public was told that crime was under control, the streets were safe and all was well. In fact murders and violent crime may or may not have been at current levels during earlier epochs in Taiwan’s history; but the perception was that crime was under control.
Now Taiwan is an open democracy; the government has almost zero control over public information and the public has the perception that crime is out of control. A careful analysis of the current situation has to ask two questions: what does the public really think, and what do politicians, government officials and the media say that the public thinks. These are by no means the same things, although the two can become self-fulfilling in the sense an ordinary person with little concern over crime rates picks up a newspaper and sees a politician talking about how public opinion polls show that the Taiwanese public is alarmed about the rise in crime, and then starts to think “everyone says that crime is out of control, I should be concerned.” Then if such a person is polled, he or she may well voice a concern over crime and that often segues into support for the death penalty as the solution for violent crime.
But statistics do not support the claim that Taiwan is undergoing a crime wave. Statistics generated by the National Police Administration (NPA) show that violent crime rates have stayed fairly flat over the past decade. The most recent figures available, for 2004, show that the number of “Offenses Known to the Police” (i.e., the number of reported violent crime cases) was 12,706. That figure is somewhat lower than the previous year, 2003, which saw 12,966 violent crime cases reported, while these peaked at 14,895 cases in 2002. But 10 years ago, in 1995, there were 16,489 violent crime reports. The reality is that Taiwan is actually getting to be a slightly safer place to live, at least according to the NPA figures.
Taiwan’s media may well be driving the public’s conception of a decay of social order and a rise in violent crime. Some of Taiwan’s sleazier media splash luridly graphic pictures of murder and mayhem across their pages each day. Given such reporting, it is easy to see why less discerning members of the public may feel that social order is collapsing. Politicians and government officials are also sometimes guilty of exaggerating crime for a lack of anything else to talk about. And all of this hardens the public against abolition of the death penalty.
Going in the opposite direction, the MOJ has a program the goal of which is to educate the public about abolition of the death penalty. According to the ministry’s policy paper, this program includes such things as enlisting the assistance of the Government Information Office in making public service announcements, holding education classes for police and prosecutors, having scholars write articles on abolition as well as “publicizing the idea of abolition to the people.” The pièce de résistance of the program seems to be “using the MOJ’s Web site to post the policy of abolition of the death penalty … this will enable the people to know that abolition of the death sentence has become the order of the day in the world and to persuade them to give up their suspicions.” Whether the ministry’s Web site can compete with the media in molding public opinion remains to be seen.
Education, however, is certainly central to molding public opinion, and an approach which uses a variety of channels is certainly an effective one. What the MOJ envisions is a long-range program that will, over the years, create a more fertile ground for public acceptance of the abolition of the death penalty. The MOJ is cognizant of the hot-button nature of the issue and correctly realizes that getting the public to accept abolition is not a short-term project. The ministry is to be greatly praised for its courage in running counter to widely held and deeply rooted emotions in Taiwan over the death penalty.
In addition to its long-term educational approach, the MOJ is taking immediate short-term steps to ensure that all death penalty verdicts receive the most thorough review. Prosecutors at the High Court and Supreme Court levels review death penalty cases to see if any extraordinary appeals should be filed. Extraordinary appeals, as the name implies, are appeals filed by the prosecutors calling for “extra” rounds of appellate court review. Once the normal and “extraordinary” appellate process is completed, the case then returns to the MOJ for a final review before the minister signs the execution warrant. The MOJ hopes to use these methods to stall executions as long as possible.
Brian L. Kennedy is an American attorney living in Taiwan, where he writes on local criminal justice and human rights issues.
Copyright © 2006 by Brian Kennedy and Elizabeth Guo.