Taiwan Today

"An execution is not simply death," as the French writer Albert Camus reminds us. Taiwan's population is overwhelmingly in favor of retaining the death penalty for a variety of crimes. Recent cases of capital punishment suggest that it may be time to take a fresh look at procedures, safeguards, and judicial supervision.

Few criminal justice issues generate quite the emotional fervor as the death penalty. It is an issue that stirs passions on both sides. Regardless of whether one is for the death penalty or against it, most people would want the system to be fundamentally fair, uncompromisingly reliable, and hedged about with adequate procedural checks to insure that the defendants receive a fair and complete hearing. As Albert Camus observes, a state execution is not simply a death, it is the culmination of a legal process.

It is a legal process that has been very much in the news over the past several years. The case of three young men dubbed by the media the "Hsichih Trio" (because the offense with which they were charged was committed in the Taipei suburb of that name) currently ranks as the island's best-known death penalty case. It involved a double murder, a rape, and robbery occurring in March 1991. Su Chien-ho, Liu Ping-lang, and Chuang Lin-hsun were convicted of the crimes and sentenced to death in 1992.

Immediately afterward, doubts as to their factual guilt began to spread. A number of local nongovernmental organizations took up their cause, spearheaded by the Taiwan Association for Human Rights. The case soon drew international attention when Amnesty International began to campaign on behalf of the three co-defendants. Amnesty made a number of appeals in the case, including an open letter to former President Lee Teng-hui and direct discussions with current President Chen Shui-bian. The case continued to garner international attention, earning a full-page article in Time magazine's Asia edition in 1999 that drew considerable reaction from the government. The case was remanded for a new trial that began last year.

That retrial is being conducted under Taiwan's criminal law system, which is inquisitorial as opposed to adversarial. It is largely based on the German model, although in recent years more and more aspects of the American criminal law system have been added.

An inquisitorial system such as Taiwan's differs in fundamental ways from the adversarial system of countries that adhere to the common law. The adversarial system is dominated by the parties' attorneys, whose task is to present evidence and arguments for their respective sides. The adversarial system involves a two-sided contest between prosecution and defense in a judicial arena. The judge in the adversarial system has little or no involvement in the direction of the trial.

Taiwan's inquisitorial system is in marked contrast to this. Here, the judge is the central figure who supervises the course of any criminal trial. There is no lay jury of any kind. The judge's task consists of finding the truth at all costs and, within broad limits, by whatever means he or she sees fit. The judge decides what the issues are, what inquiries are to be made, what witnesses will be called, and also conducts the questioning of witnesses. This relegates the defense attorney and the prosecutor to far more passive roles.

Taiwan's criminal trial system is in the process of moving away from the purely inquisitorial model. Revisions to the code of criminal procedure will in the near future shift more of the task of questioning witnesses and moving the case forward to the attorneys, both prosecution and defense.

On a per-capita basis, the death penalty can be said to be applied frequently in Taiwan. For example, in 1998 Taiwan executed thirty-two people, while in the same year the United States executed sixty-eight. How do the figures break down? According to Ministry of Justice (MOJ) statistics, twelve of the thirty-two convictions were for murder, ten were for violations of the Bandit Law, two were drug-related, six concerned kidnapping, and there were two cases of murder-rape. Eighteen of the condemned had no prior criminal records of any significance.

In 1997 there had been thirty-eight executions: twelve for murder, sixteen for violations of the Bandit Law, two in drugs-related cases, four for kidnapping, three for murder-rape, and one for robbery. Fifteen of the condemned had no significant prior records. And in 1999 there were twenty-four executions. Of those, five were for murder, fourteen for violations of the Bandit Law, three were drug-related offenses, and two involved kidnapping. Eight of those executed had no significant criminal history.

In the same three-year period, no women were executed. But four foreigners were. Half of those executed were unemployed at the time of the offense.

Under Taiwan's criminal code, a number of offenses carry either an optional or a mandatory death sentence. According to a report issued by the Cabinet in 1994, ninety-five different offenses carried the death penalty as an optional punishment, while in sixty-five other cases it was mandatory.

One example of this mandatory death sentencing that has come in for widespread criticism is the Bandit Law. The Bandit Law creates ten offenses that carry the death penalty, including such crimes as intentional kidnapping, robbery combined with rape, sea piracy, and the crime which gives the law its name: "organizing groups, in the mountains or marshes, to resist the authority of government officials." The Bandit Law would be a quaint little bit of Chinese legal history but for one fact--its use, as long as it remains law, is mandatory. A bill to abolish the Bandit Law has passed its first reading in the legislature.

If the offense carries an optional punishment of death, the judge may but is not required to apply it. The usual option for the judge in such a case is to sentence the defendant to life imprisonment. However, under Taiwan law a "life sentence" does not necessarily mean the defendant will spend the rest of his life in custody. It simply means a period of imprisonment not to exceed twenty years. The fact that Taiwan's sentencing law does not contain a provision for a "true" life sentence is one rationale often put forward for retaining the death penalty.

Capital cases in Taiwan are handled no differently than those involving other serious felonies; there are no separate sets of special procedures. The only major procedural difference is that death penalty cases are granted an automatic appeal to the Supreme Court. This lack of a separate or additional set of procedures and safeguards is in contrast to many other systems, such as the American one, where safeguards include bifurcated trials: the guilt phase is heard separately from the penalty phase.

Taiwan's "business as usual" approach to death penalty cases perhaps reflects a cavalier attitude toward the process, as does the fact that such cases are not assigned to senior judges, nor are specially skilled defense attorneys appointed.

Death penalty cases start with a crime. The criminal justice system comes into play as soon as the crime is reported and the police begin their investigation. It is an axiomatic but often overlooked fact that how effectively, how thoroughly, and how competently the police handle their initial investigations will fundamentally affect the outcome of any capital case. Poor initial police investigation can lead to wrongful convictions and in turn wrongful executions. Taiwan's police force is well known for placing an emphasis on confessions, sometimes at the expense of other aspects of the investigation, such as witness interviews, crime scene preservation, or collection and testing of forensic evidence.

The Hsichih Trio case is a high-profile example of poor police practices leading to potential injustice. According to the worldwide appeal issued by Amnesty International in 1998, "there is widespread concern that Su Chien-ho, Liu Ping-lang, and Chuang Lin-hsun were convicted on the basis of confessions extracted under torture, and that they are innocent." That same report went on to say: "...[The co-defendants] claim to have been tortured and forced to confess to the murders. They were each told that the others had already confessed. None of the confessions they made were consistent with each other, and all three later denied committing the murders."

Prosecutors may enter the case at a number of different points. In some cases they will visit the scene of the crime at the time of the initial police investigation. More commonly, however, the police send their reports to the local prosecutors' office after their investigations are complete. When the crime reports are received the case will be assigned at random to a prosecutor, who will review the reports and available physical evidence and make a decision as to how the case should be charged.

The initial decision to seek the death penalty is made by the deputy prosecutor assigned the case. By law that person signs the indictment and is responsible for the prosecution of the case at trial. In reality, however, all indictments, be they seeking the death penalty or not, are reviewed by the Divisional Head and the Chief Prosecutor for that district. After review and approval the case comes back to the deputy prosecutor, who then files the dossier with the court.

The charging decision involves a number of steps. The first step is for the deputy prosecutor to review the facts to see if there is sufficient evidence to support criminal charges at all. If the crime charged happens to carry a mandatory sentence of death, the prosecutor's analysis ends at that point. But if it carries an optional death sentence, the prosecutor must then decide whether the specific facts of the case warrant seeking the death penalty. There are no criteria laid out in the law to guide the decision. This is in stark contrast to American death-penalty law, where "special circumstances" are specified: facts that would allow the death penalty to be given.

Prosecutors and the Ministry of Justice have come in for both praise and censure in their handling of capital cases. The MOJ made the unprecedented move of filing three extraordinary appeals in the Hsichih Trio case. This effectively stayed the execution of the three co-defendants.

However, the same ministry has been roundly criticized for rushing executions in circumstances where there were doubts about the convictions or the law underlying them. A recent example was the kidnap-murder conviction of Hsu Tzu-chiang. The MOJ allowed his execution to go ahead, despite the fact that an investigation of the case by the Control Yuan, Taiwan's top supervisory watchdog organization, was still pending. The execution was legal, but many question the equities of such a rush to the gallows.

Defense attorneys, like prosecutors, may enter the picture at a number of different points. It may be as early as the suspect's questioning, but that is rare. More common is for the defense to begin at the first appearance of the defendant in court. If a defendant in a death-penalty case cannot afford an attorney, the court will appoint one for him.

The Bar Associations have developed a program in cooperation with the courts to draw up a list of attorneys who can be appointed. Few Taiwanese attorneys, however, specialize in any area of the law. The vast majority of them are general practitioners, and as a result there is no organized criminal defense bar.

The system of court appointments for capital cases in Taiwan has several notable characteristics. First, there is no minimum experience required for an attorney to be appointed to represent an indigent facing the death penalty. Second, the total amount paid by the court for the entire representation of a death-penalty defendant, from first appearance to final appeal, ranges from NT$10,000 to $40,000 (US$313 to $1,250). Given the low fees, the courts and the Bar Associations encourage novice attorneys to make themselves available for appointment in capital cases.

Many would question a criminal justice system's commitment to fundamental fairness and moral certainty when that system allows and in fact encourages underpaid non-specialists to represent defendants on trial for their lives.

Judges are assigned their criminal cases at random; capital cases do not automatically end up with the most senior judges. Indeed, they are often tried by judges with minimal experience not only of the law but also of life in general. It is important to note that judges in Taiwan are not former attorneys; they are graduates of a training institute, which they entered after completing undergraduate law school.

The dominant role of the tribunal in Taiwan's death-penalty procedures places a premium on the individual judge's maturity, experience, reasoning skills, and fairness. Most prosecutors and defense attorneys will privately admit that Taiwan's bench faces a critical shortage of these qualities. Again, the Hsichih Trio case stands out as an example of poor judging leading to a potentially fatal injustice. Amnesty International's report on the case says this...

"During the district court proceedings the three judges reportedly refused to call some of the defense witnesses, including fellow prisoners who might have corroborated the men's claims of torture and several other people who claim to have seen the three men elsewhere on the night of the murder. The coroner's testimony appeared to rule out any possibility that the female victim had been raped, and forensic evidence from the scene of the crime was apparently not presented to the court. In spite of this, the men were found guilty on all charges, and on February 18, 1992 they were sentenced to death."

An attorney speaking for Amnesty International Taiwan was more blunt in his assessment: "It was the worst example of judicial incompetence I have ever seen." Death penalty cases proceed through three levels, beginning with the District Court. At the first trial the court will question witnesses, examine physical evidence, and hear arguments from the defense. Depending on local practice, the prosecutor may or may not be present. The defense is, at the court's discretion, allowed to cross-examine and call witnesses.

Both the prosecution and the defense can appeal the decision of the District Court. As a result, generally, findings of both guilt and innocence are appealed from the District Court to the High Court, which tries the whole case all over again, rehearing the testimony and reviewing the physical evidence. After the High Court renders a decision, the case then advances to the Supreme Court.

The Supreme Court, in theory, is a pure appellate court. That is, it considers only matters of law, not factual findings. No new evidence is taken, and the appeal is considered solely on the case file. It is worth noting that trial proceedings in Taiwan courts are not transcribed. The court record consists of items noted in the file by the clerk upon order of the judge. Thus the only information contained in the court documents are those things the judge sees fit to include. Such sketchy and subjective records can become a problem at the Supreme Court level.

In theory, the defendant enjoys the presumption of innocence, but as a practical matter this is undermined by a number of factors. In particular, judges base their approach to the case on the dossier prepared by the prosecution, which the court will have read in advance. In addition, since there is no bifurcated trial, sentencing factors are considered at the same time as the facts relating to guilt or innocence. This mixing of the guilt phase of the trial with the sentencing phase has the potential to undercut the presumption of innocence.

Once the Supreme Court has confirmed the death penalty, the case is sent to the MOJ for a final review and the carrying out of the execution. This review is limited to ensuring that the documentation is in order. It is not a factual review of the case. The Minister of Justice signs the death warrant, which is forwarded to the prison. The ROC president has the authority to grant clemency in death penalty cases. That authority has never been used.

Executions must be carried out, by law, within seventy-two hours of the Minister of Justice signing the death warrant. The exact time and day of the execution are kept secret from the condemned, his attorney, the family, and the public, the official rationale for such secrecy being that informing outside parties would constitute a security risk. More probably, the corrections department wants to avoid public protests in the vicinity of the prison.

Taiwan's law allows for two methods of execution: lethal injection and shooting. The condemned have the choice; most choose shooting. This may seem odd, as lethal injection is considered more humane, but whether from pride, face, or machismo most condemned prisoners opt for death by gunshot. If so, prior to being taken to the execution ground the condemned convict is given a tranquilizer injection. A single gunman, not a firing squad, carries out the sentence with shots to the back of the condemned man's head and torso. Present at the execution, apart from the executioner, are a medical doctor, the prosecutor in charge of the case, a clerk from his office, and one or more corrections officers. No other witnesses are permitted to be present.

As an interesting cultural note, the execution ground, which is laid out with reference to the principles of feng shui (a type of Chinese geomancy), houses a shrine dedicated to the Taoist god of death. It is hoped that these measures will ensure that the executed man's ghost does not linger to haunt the living. As Camus said, an execution is more than just a death.

Copyright 2001 by Brian Kennedy.