Thursday, March 11, 2010

The Death Penalty: Other Considerations

The Death Penalty: Other Considerations
China Times editorial (Taipei, Taiwan, ROC)
A Translation
March 11, 2010

Minister of Justice Wang Ching-feng invoked the concept of "reason and tolerance" while publicly calling for a moratorium on executions. Minister Wang has long advocated abolishing the death penalty. Following her appointment, the Ministry of Justice has continued to push for the gradual abolition of the death penalty. Current Vice Minister of Justice Huang Shi-ming was recently nominated for the position of Prosecutor General. When questioned by the Legislative Yuan, he said he advocates the abolition of the death penalty, but feels that until the death penalty is abolished, those already sentenced should be executed. This is why Wang Ching-feng felt compelled to express her solemn opinion on the matter.

The gradual abolition of the death penalty has been going on for the past decade. The policy has not been any easier to implement merely because any particular political party was in office. The legal code still includes the death penalty. Over the past several years the courts have sentenced over 40 persons to death. Whether the Minister of Justice should sign death penalty orders has become a issue. Huang Shi-ming, in his capacity as Vice Minister of Justice, has openly expressed views at odds with the Minister's. That is not not unusual. Minister Wang Ching-feng says she understands the Vice Minister's position, and that his views do not diminish her respect for him. Hers was a concrete expression of reason and tolerance. The Minister of Justice is boldly making policy trade-offs. As a result, the death penalty issue has once again come to the fore.

The death penalty raises issues pertaining to democracy and the rule of law. Those who favor the death penalty believe that the public demands it. Those who advocate the abolition of the death penalty and a moratorium on executions, believe the public opposes it. Opponents of the death penalty believe that once the death penalty has been abolished, alternatives will be found. Opinion polls that resort to simplistic dichotomies are unreliable. The death penalty is too final. The risk of mistakes is too high. This is not an issue that the public can decide. Controversy over the death penalty is hardly confined to the Republic of China. Such debates have been going on throughout the world for some time. They continue to buzz around one's ear. During the 21st century however, calls for the abolition of the death penalty have become the global norm. Last year the Republic of China Legislative Yuan passed two human rights bills. Two provisions of the Charter of Universal Human Rights will be incorporated into our legal system. Existing laws and regulations must be amended and fully implemented before December 10, 2011. The abolition of the death penalty has become the Republic of China's urgent homework assignment.

Advocates of the death penalty say the court has ruled that the Ministry of Justice may not refuse to carry out executions. Those with reservations about the death penalty say the authority to carry out the death penalty belongs to the courts. When and how it is implemented should be considered discretionary, comparable to an executive power. The Convention on Human Rights includes two provisions on the death penalty. They make the carrying out of the death penalty on Taiwan seem hasty. One provision states that the condemned has the "right" to request commutation of his sentence. But the Republic of China still lacks a protocol for such cases. To carry out death sentences prior to the enactment of remedial legislation is a violation of the convention and the law. Another provision in the convention states that although the Convention on Human Rights has yet to explicitly repudiate the death penalty, national governments must not obstruct or delay efforts to abolish the death penalty. Although the convention has yet to explicitly repudiate the death penalty, the Ministry of Justice may not use this as an excuse to not grant a moratorium on executions. Minister Wang's legal reasoning may be subtle. But it has a solid legal foundation.

Minister Wang's article mentions the recent killing of a police officer. This case demonstrates the danger of the death penalty. Ten years ago, police officer Lin An-shun died during a gun battle with drug dealers. Two defendants were charged with homicide. One of the defendants was named Li. One of the officers on the scene failed to identify him as one of the shooters. As a result Li was found not guilty of homicide. He was sentenced to five years for illegal possession of firearms. Because the prosecutor failed to appeal, Li was released after serving out the full term of his sentence. The other defendant was named Chan. He was tried fived times. During his last two trials, the court discovered that the man who killed the policeman was not Chen, but Li. Chen was convicted of attempted murder for wounding another police officer, and sentenced to life imprisonment. Put simply, the High Court's rulings have been inconsistent. Lin An-shun died in the line of duty. But his murderer has escaped justice.

The case underscores a problem. The problem is not who should or should not have been sentenced to death. The problem is that during the administration of justice it is difficult to avoid mistakes in identifying those guilty of murder. The reason the suspect in the Lin murder case escaped justice, is that prosecutors and police lacked forensic evidence. They must reduce reliance on eyewitness testimony and even defendants' confessions. They must collect crime scene evidence, including abandoned guns, fingerprints, bullets extracted from the slain police officers, and obtain convictions by means of scientific evidence. Had this been done, this miscarriage of justice would never have happened. The prosecution chose not to appeal. The courts tried the case five times in ten years, on the basis of limited evidence. The result was this strange ruling.

Think about it. If evidence gathering is as sloppy as this when a police officer has been murdered, what can we expect in other homicide cases? The families of the deceased police officers have nowhere to turn to. From this we can see how poorly crime victims are protected. None of these are problems that can be solved by means of the death penalty. The legal system remains error prone. Under these circumstances, the risks the death penalty imposes exceed those permissible under the rule of law.

Minister Wang has the courage to call for an end the death penalty. Her responsible approach deserves affirmation. Prosecutors must improve their forensic evidence gathering techniques. Only then can they avoid weakening their criminal prosecution efforts. They must actively assist crime victims and their families. These are issues the Ministry of Justice must address as they deal with the death penalty. Only this can solve the problem, and eliminate the rationale for the death penalty.










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