[Deathpenalty] death penalty news----worldwide

[Rick Halperin]

Nov. 14



TAIWAN:

Legal experts debate death penalty


Execution seems to some an effective measure to make society safer because it 
prevents recidivism by serious offenders, but a lawyer, who wished to only be 
identified by his surname, Huang, said it is "absurd" to argue for the 
retention of the death penalty for that reason.

It is absurd to have criminals killed by the state for any crime because it is 
tantamount to letting the state "take lives of its citizens to make up for what 
it is duty-bound, but has failed, to deliver," Huang said.

Huang said he is leaning toward taking a position against the death penalty 
because Judge Regis de Jorna of the Paris Court of Assises has enlightened him 
about whether the sentence is an effective deterrent against crime.

He had attended a forum entitled "Why the EU moved away from the Death Penalty" 
in Taipei on Oct. 15, where De Jorna made his point by drawing on a speech that 
then-French justice minister Robert Badinter delivered to the National Assembly 
on Sept. 17, 1981, when he submitted a bill to abolish capital punishment.

"Those who believe in the dissuasive value of capital punishment are unaware of 
human truth," Badinter was quoted as saying by De Jorna, who spoke in French. 
"Criminal passions cannot be held back by the fear of death. If the fear of 
death could stop crimes, we would have no great soldiers, no great sportsmen. 
We admire them because they don???t hesitate when confronted by death."

"Only to justify capital punishment did one invent the idea that fear of death 
would stop men from their extreme passions and this is not correct," Huang 
quoted Badinter in an interview with the Taipei Times on Oct. 22.

Huang agrees that the death penalty has no dissuasive value against lethal 
crimes.

"At the time of murderous impulse, the evocation of the punishment, whether the 
death penalty or not, does not exist in the mind of the murderer. In a case of 
premeditated homicide, the murderer has either planned an escape or is resigned 
to death," Huang said. "I barely see a correlation between the death penalty 
and murder rates."

The failure of the death penalty as a deterrent was also highlighted by Judge 
Christian Schmitz-Justen of the Cologne Higher Regional Court at the forum, 
when he said that the probability of becoming a crime victim is 10 times higher 
in a country such as the US, where the death penalty is a legal sentence, 
compared with most places in Europe, where the sentence is forbidden.

Academia Sinica assistant research professor at the Institutum Iurisprudentiae 
Jimmy Hsu expressed a different view at the forum, arguing in favor of 
retaining the death penalty and restricting its use to "extravagant evildoers."

The death penalty should be reserved for "the worst of the worst" crimes 
because, for him, "what is placed on the scales of justice and being weighed is 
not the cruel principle of 'life for a life' or 'eye for an eye,'" Hsu said.

Hsu considers the death penalty a "communicative retribution" in response to 
the message sent by extreme levels of crime, that it is in complete 
contravention of what humanity stands for.

"The only proper measure to counter the message is the death penalty," Hsu 
said. "By using the death penalty we send the murderer and society a message: 
What you did is completely beyond the bounds of what humanity stands for. What 
you did only shows that you have stamped out the gift of life, with which all 
humanity shares a bond."

"You have completely degraded what has been given to you - life as a human 
being. Now for what you did, you no longer deserve to retain it," Hsu added.

The death sentence remains one of the most controversial issues in criminal 
justice, with the primary resistance to its abolition being connected to strong 
emotional feelings that often drown out rational arguments.

Following the 4 executions in May 2010 that ended a 4-year de facto moratorium 
in Taiwan, the EU initiated the "EU-Taiwan Judicial Exchange Program" the next 
year to encourage constructive dialogue within Taiwan and between the EU and 
Taiwan on the various dimensions to the issue of using the death penalty.

EU Representative to Taiwan Frederic Laplanche said that the program offers a 
valuable platform for exchange and "we hope that this event will become a 
permanent feature on Taiwan's judicial calendar and contribute to keeping 
Taiwan in tune with the international trend on the issues of human rights."

During this year's program, along with De Jorna and Schmitz-Justen, Judge Peer 
Lorenzen of the European Court of Human Rights and the Danish Supreme Court, 
and Judge Leeona Dorrian of the Supreme Court of Scotland attended a series of 
seminars for discussions with local judges, legal academics, lawyers and 
psychiatric assessment experts on issues related to sentencing for serious 
crimes and trials of defendants who are suffering from mental disorders, in 
addition to the forum.

Sun Kian-ti, a judge at the Taoyuan District Court who participated in one of 
the seminars, said the major difference between Taiwan and countries in Europe 
with regard to ideology behind crime policy is that "Taiwan tends to use 
criminal punishment as a main crime prevention device, while European countries 
attach more importance to rehabilitative measures to prevent relapse."

Citing probation as an example, Sun said that in Taiwan the period for which a 
probationer is placed under supervision expires upon completion of their 
sentence; while in Europe, if judicial officials determine that a probationer 
still poses a danger to the public at the time when the sentence is served, the 
probationer remains under supervision.

"Unlike the situation in Taiwan, rehabilitative measures [in Europe] are 
independent of the sentence," he added.

If Taiwan had similar crime-prevention mechanisms, it would help the public to 
reconsider whether there is no guarantee against recidivism other than putting 
serious criminals to death, Sun said.

Nevertheless, it is impossible to sway opinion if people's attitude toward the 
death penalty is based primarily on emotion, he added.

Emotions drive people to the view that there are criminals who are so 
"atrocious" that they cannot expiate their sins unless they pay with their 
lives, to the extent that they do not care about the problems associated with 
using the death penalty, even irreversible miscarriage of justice, Sun said.

It is impossible to reason with people for whom the life of a criminal in jail 
is more unbearable than the fear the criminal might repeat a crime, Sun said.

That a death penalty is irreversible in nature is one of the main arguments 
against capital punishment.

Badinter said in the speech: "Justice remains human, therefore fallible."

Taiwanese anti-abolitionists have termed these as "external forces" aiming to 
transplant their values in Taiwan, but Sun disagreed, saying that the 
anti-death-penalty campaign in Taiwan actually arose indigenously and fits the 
needs of the nation's situation.

"It's a generally accepted fact that there is widespread distrust of the 
judiciary in Taiwan. Due to various political and historical reasons, the 
judicial system has been scarred by the authoritarian regime. Given that, it 
would be a question worth asking: 'How can we be certain of judicial 
infallibility?'" Sun said.

A lawyer surnamed Hung said that the biggest obstacle those advocating 
abolishing the death penalty in Taiwan face lies in whether they take into 
account the emotions that contribute to support for retaining the death penalty 
- fear, anger, retribution, justice or distaste - when formulating persuasive 
discourse.

Those are all understandable emotions, Hung said.

As Schmitz-Justen said at the forum, in response to a question from the 
audience seeking his suggestions for steps to take to become a country that 
abolishes the death penalty: "You have to find your own way."

(source: Taipei Times)