Double jeopardy: trend toward abolition

Editor's note: Double jeopardy is a five-part series focusing on the case of the Hsichih Three in Taiwan, which helped put the death penalty back up for debate in Asia.

TAIPEI, Taiwan — Worldwide, the death penalty is on the decline.

In 2009, only one-third (58) of the world’s countries kept the death penalty on the books, according to Amnesty International; only 18 of those carried it out. For the first time in history Europe had zero executions; in the Americas, only the United States carried out the death penalty.

Asia is a holdout. It leads the world in executions, thanks to China. Beijing refuses to divulge numbers on how many it puts to death; Amnesty estimates “thousands” per year, including political criminals. Vietnam was a distant runner-up in 2009 with more than nine executed.

Elsewhere in Asia, though, capital punishment is on the wane. The Philippines abolished the death penalty in 2006. India executed just one person from 1999 to 2008.

South Korea, which like Taiwan has moved from dictatorship to democracy, hasn’t executed anyone since 1997, although it recently upheld the constitutionality of the death penalty.

Activists in Japan are pushing for abolition. The center-left government has only put two to death since taking power in the fall of 2009. In those cases, the justice minister allowed the media into the execution chamber for the first time, and called for public debate.

Popular support

Despite those trends, a majority of Taiwanese — 70 to 80 percent, depending on the poll — still supports the death penalty. In Japan it’s 85 percent.

In a 2006 report, the International Federation of Human Rights (IFHR) found that most Taiwanese explained their support in terms of a "cultural belief in retribution.”

"There is a belief that human nature can be fundamentally evil and irredeemable, that serious criminals should pay for their crimes with their lives and that extreme punishment is needed to curb behavior," the IFHR found. "There is a fear that if the death penalty is removed, the social order will disintegrate."

The IFHR report noted, though, that some 50 percent polled also think life sentences without possibility of parole could be substituted for the death penalty.

Taiwan sociologist and death penalty opponent Chiu Hei-yuan said Taiwan’s capital punishment was rooted in universal ideas of vengeance, but took Chinese forms. Interestingly, Taiwan's Austronesian aborigines had no tradition of the death penalty, he said, but the Chinese who settled Taiwan did.

"In Chinese culture, the death penalty is a very important institution for maintaining social order and the ruling government's power,” he said.

Chinese history is packed with gruesome punishments, such as execution to the “ninth degree” — wiping out an entire clan for one man’s treason against the imperial family. Condemned men were often paraded in public before being killed, and peasants would jostle to dip buns of bread in the fresh blood of the executed, said Chiu. "They thought it was good for your health, and for curing illness.”

Paul Katz, a historian at Taiwan’s Academia Sinica, said Chinese judicial tradition often featured a presumption of guilt. "The idea has always been that if you were brought into court, it was a shameful indication that something was wrong — mediation had failed," he said. "The burden of proof was always on the person being accused."

That was true also under martial law in Taiwan, said Katz, when the Kuomintang’s totalitarian spy and security apparatus operated with impunity. "If you were caught up in the state's web, you must have done something wrong and it was up to you to prove that you were innocent."

A Taiwanese anti-death-penalty activist stands in front of a billboard reading "Say no to the death penalty" in Taipei on June 2, 2010. (Patrick Lin/AFP/Getty Images)

Torture to extract confessions from suspected political enemies was routine. Kangaroo courts sent thousands before firing squads.

In that context, the treatment of the Hsichih Three by cops and prosecutors was a reflexive habit of an authoritarian regime in its dying days.

Since democratization in the late '80s and early '90s, Taiwan has cast away much of that troubling legacy. Part of that is reducing the number of people it puts to death.

Executions declined from 32 in 1998 to just three in 2005, according to the 2006 IFHR report.

A thirst for vengeance

In 2005 Taiwan quietly put a moratorium on capital punishment. It wasn’t abolished, but no one was put to death, either.

But last year, public debate was reignited when the justice minister, under legislative questioning, vowed that no one would be executed on her watch. Two prominent murder victims' relatives — including a TV celebrity — took to the airwaves with emotional protests. They quickly attracted a groundswell of public support.

"This was an irrational movement; crowd behavior to ask the government to kill these criminals,” said Chiu, the sociologist.

The crowd got what it wanted. The justice minister resigned in March. Two months later, four death row inmates were shot to death, with the new justice minister saying their cases were extreme ones that had, by a Chinese saying, "made the gods and man alike tremble with rage."

The executions came despite what Amnesty described as “assurances” from the current president Ma Ying-jeou in June 2008 that Taiwan’s moratorium would continue.

Forty men remain on death row, according to rights groups, including 15 who had no lawyers at their final trials.

Still, Taiwan is moving toward abolition. A task force has met to chart the way forward on scrapping the death penalty. One human rights alliance has challenged the constitutionality of the death penalty in Taiwan, on behalf of most of the condemned men (a few refused to be part of the suit, saying they wanted to die.)

Pro-death-penalty groups say that until the laws are changed, executions should continue as legally mandated.

But rights groups make the reverse argument, saying Taiwan shouldn't put anyone to death until there's a ruling on the penalty's constitutionality.

"People who are against the abolition of the death penalty misunderstand," said Chiu. "They think if a guy's not killed, that means he's not guilty. They say, only if we kill him can we get justice. We don't think so."

Read more from Double jeopardy:

Part I: a look at the death penalty in Asia

Part II: victims' families seek justice

Part IV: presumed guilty

Part V: matter of "face"