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What is death penalty¡¦s purpose?
By Lin Chyong-jia ªLã®a
Saturday, Mar 20, 2010, Page 8
Some time ago, when serving as a judge, I reluctantly passed the death sentence
on a defendant only to discover, years later, that I had been wrong, and could
have spared his life.
Another time, acting for the defense in a capital case, I argued that the
defendant should be given another chance because there was cause for compassion.
I was with the defendant in his final dark hours, but I wasn¡¦t able to save his
life.
I have also prosecuted a man accused of raping and murdering an insurance agent
and another for kidnapping and killing a minor. I pushed for the death penalty
in both cases because there was no question of the defendant¡¦s guilt and death
was the only fitting judgment.
Having seen this issue from many sides, I know that retribution is not the
answer and that mercy and tolerance are the only way to deal with resentment.
Whether a guilty defendant lives or dies should depend on whether they truly
repent their crime.
One time I led the defense in a murder trial in which the punishment was
commuted to a custodial term.
When the defendant heard this, he confided in me: ¡§When you¡¦re in jail you have
no contact with the outside world. You try to do the right thing and repent any
bad things you do. It¡¦s different when you are on the outside. Nothing seems to
go your way, and there are too many temptations around. You try to live a normal
life, but what can you do?¡¨
I find the sincere contrition he expressed quite moving.
There is a saying in Chinese that it is possible to ¡§lay down your arms and
become a Buddha.¡¨
In other words, people can change. Surely anyone serious about repenting their
wrongdoing should be given a second chance.
Lawyers would like to see the end of the death penalty, but there are some
important considerations to take into account.
First, we cannot say whether or not the situation will get worse if we abolish
the death penalty. It is possible, for example, that aggressors will kill their
victims to silence them rather than risk spending the rest of their lives
rotting in some prison cell. Dead men don¡¦t talk.
On the other hand, a fugitive from the law for a serious offense might be driven
to desperate measures and even more brutal crimes if they knew they would be
facing the death sentence if they were caught. What happens when the police
finally catch up with these desperate criminals? Would this lead to more
bloodshed that could otherwise have been avoided?
Second, we need to take into account that the victim or the victim¡¦s family is
likely to want the defendant to receive the death sentence because it will give
them some sense of closure, allowing them to come to terms with their grief and
finding an outlet for their resentment. We need to find a way to mitigate their
need for instant justice if capital punishment is abolished, to stop them from
baying for blood and insisting on an eye for an eye and a tooth for a tooth.
Third, I would say it¡¦s important to think very carefully before professing to
understand how the victim of a serious crime feels, if you are not directly
involved or, indeed, have never been subjected to a serious crime yourself. If
you have not been in that situation yourself, you will not be able to understand
what they are going through.
Of course, we should be able to exercise our compassion and humanity, but these
should be applied equally to both the defendant and the victim. A murder victim
has no way of recounting their side of the story: We only have access to the
defendant¡¦s version of events. We cannot apply our humanity and compassion
exclusively to the perpetrator of the crime, in the absence of the victim.
Human dignity is important, but the principle of fairness and justice in the law
precludes us from offering it exclusively to the perpetrator.
If keeping the death penalty has a stabilizing effect on society; if it makes
law-abiding citizens feel safe in their homes; if it gives victims or their
families a sense of closure and final retribution; and if it contributes to the
overall well-being of society, is it really necessary to abolish it?
The purpose of keeping the death penalty is not the metaphorical head on the
spike, offering someone up as a sacrificial offering to the god of social
sanctions. Instead, it effectively draws a line in the sand and says, to one and
all: ¡§Go no further if you value your life.¡¨ It¡¦s about preventing kidnapping,
rape, murder, the killing of innocents; it¡¦s about guaranteeing the safety of
the public and reducing the temptation of vigilante justice.
Keeping the death penalty does, indeed, have its positive side. If we abolish
it, will our capacity for tolerance and forgiveness really be more powerful than
feelings of vengeful resentment? And without it, will the public feel safe, the
victims satisfied?
If Taiwan were a beautiful country free of malice, where tolerance and fortune
were king, why would we need a police force to maintain public order? Why would
we feel the need to hire security guards to watch over our property?
And why would we insist on iron window grills and closed-circuit TV security
systems? It¡¦s quite a disconcerting proposition, suddenly abolishing capital
punishment with insufficient prior consideration, flying in the face of the
public¡¦s wishes and reservations voiced by countless others, and with no real
way to predict what the outcome will be.
Lin Chyong-jia is a lawyer.
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