"A disaster for abolitionists."
"A disaster for abolitionists."
A conversation with Cheng-Yi Huang on the Constitutional Court's Decision to Uphold the Death Penalty; plus, a video and an urgent petition for dual citizenship
Dear readers,
Sorry for being out of touch for a bit: our (no-longer) Baby P. was struck down by a case of enterovirus, and her daycare requires her to stay home for seven days, which means no childcare. Meanwhile, Michelle has been dealing with a series of nasty infections, making it a struggle to keep up with our work.
On Friday, Taiwan’s Constitutional Court released its decision on the death penalty hearing. Long-time readers will know that we've been closely following this court case. For those interested, we recapped the court hearing in May and interviewed Chuanfen Chang and Hsinyi Lin, advocates for death penalty abolition, back in April. We wrote an article on sensationalism and the death penalty, which was published and reprinted in Chinese.
Cards on the table: we’re unabashedly on the side of abolition, and after the conversations in April and May with activists, we were cautiously optimistic about the possibility of ending the death penalty.
It turns out we may have been too optimistic. Friday’s decision was undeniably disappointing and represents a setback for the abolitionist cause. The Court upheld the constitutionality of the death penalty, but in what many see as a compromise, it also stated that its application should be “limited to special and exceptional circumstances.”
To make sense of the ruling, we reached out to our friend Cheng-Yi Huang for insight. Cheng-Yi is a Research Fellow and Deputy Director at the Institute of Law, Academia Sinica. He served as an expert witness in the case. Here’s our edited conversation:
Cheng-Yi: How are you guys feeling about the decision?
Michelle: We’re definitely disappointed. How about you?
Cheng-Yi: I think the justices thought they could please everybody by compromising in this way, but none of us is happy. They chose to maintain the constitutionality of the death penalty, but limit its application to a very narrow scope.
Albert: Tell us about the opinion.
Cheng-Yi: It’s vague and technical. The constitutional court stated that the death penalty should be limited to the “most severe crimes,” but it made no reliable standards for ordinary courts to determine what those consist of. The Court invokes international frameworks like the International Covenant on Civil and Political Rights (ICCPR), but that document was intended to allow varying interpretations from country to country. When the ICCPR was initially made, many countries still had the death penalty. But now, over 100 countries have abolished it. What criteria are our lower courts supposed to use?
There were so many arguments for abolition, but the judges didn’t address any of them.
Michelle: The values of human dignity and the right to life weren’t addressed?
Cheng-Yi: It didn’t answer the bigger questions about what constitutional values are actually enshrined. The court mentioned human dignity just once, but it didn’t fully engage with whether the death penalty violates that dignity.
The court mentioned the right to life throughout its judgment, but it stated that such a right isn’t absolute; it concluded that a limitation on the right to life is constitutional if it meets the test of proportionality.
The court also ignored all of the research and work that shows that the death penalty doesn’t act as an effective deterrent. They dismissed all of the abolitionist arguments without real engagement in a way that feels more ideological than factual.
Michelle: And the judgment did not at all mention the fact of error—that innocent people on death row in Taiwan have been exonerated?
Cheng-yi: The court mentioned the possibility of errors of fact, but they required the courts to apply rigorous due process of law to avoid errors.
Michelle: When I think about the death penalty, I think about how the police, prosecutors, witnesses, and judges all make mistakes, sometimes unintentionally. Meanwhile, the public, often driven by outrage, can misjudge, and the media has incentives to sensationalize and condemn. Amidst all of this, the state’s job is to exercise restraint and control the possibility of error.
Cheng-Yi: It’s impossible for human beings to invent a perfect machinery of killing that satisfies the rigorous requirements of due process of law. There is no such thing in the world. There will always be errors. There will always be innocent people getting killed by the state.
Albert: Is there anything good in the judgment?
Cheng-Yi: The court emphasized the importance of due process, stating that defendants must have legal representation at every stage—from initial questioning through to the final appeal before the Supreme Court. It also mandated that the Supreme Court hold oral arguments, and a unanimous decision from a panel of five judges is required to sentence someone to death.
Michelle: Do you think that’s sufficient?
Cheng-Yi: No, because it will only come down to five judges—if it were the entire Supreme Court of sixty or seventy people, that would be a much higher bar.
Albert: So what is going to happen to the 37 people on death row who asked for a constitutional interpretation? How will the court handle those?
Cheng-Yi: Because the court mentioned that defendants need to have attorneys at every moment in the process, the attorney general is going to have to appeal those cases, and the Supreme Court will hear them again. When the court hears the cases again, it will have to apply a rigorous due process. One judge actually dissented, arguing that these new standards shouldn’t be applied retroactively.
The Court likely believed that this is a good outcome for the 37 death row inmates, because their cases can be re-examined and they could possibly win. But as I mentioned, the court failed to provide any clear operational criteria for the lower courts regarding the most rigorous due process or what constitutes the most serious crimes.
More fundamentally, the ruling still starts from the assumption that we can define that a person is horrendous or is morally reprehensible. It preserves this notion that some people are so bad, so beyond redemption, that they should not be allowed to live. But who gives us the power to make that judgment? Does the Constitution? Should we, as a society, define that some people are more evil than others?
The court referred several times to protecting those with mental illnesses. But even the psychiatric association said clearly that they couldn’t decide in these cases, explaining that they’re not gods who can judge. They don’t believe they’re capable of deciding who lives or dies.
Michelle: We both admire your expert opinion that you submitted to the court. Your first pages take pains to explain how the practice of the death penalty in Taiwan has been neither continuous nor uniform. For instance, you cite many sources to show that indigenous peoples across Taiwan didn’t practice the death penalty. Did the court engage with some of the arguments that you and other expert witnesses brought up about the relationship between Taiwanese history, culture, and the death penalty?
Cheng-Yi: Not at all. There’s no cultural, historical, political, or moral argument within the judgment. The judges attribute support of the death penalty to some broadly defined will of the Taiwanese people (符合台灣民情). But that’s just nonsense. I spent so much time to explain that there’s no such unified concept as "the Taiwanese people" in this context.
Ultimately, it was just a very technical judgment.
I want to tell the court: “Your role should be to elaborate on constitutional values, not simply reiterate what the lower courts are doing.” Besides, the lower courts have already made the application of the death penalty difficult. What's the point of spending 70% of the judgment talking about how to limit the death penalty, especially in a case where you should be deciding the constitutionality of the death penalty?
Albert: Right, they’re saying, “Oh, it's constitutional,” but then they spend most of the judgment saying, “Let’s limit it.”
Cheng-Yi: Exactly. It's like we're trying to decide whether a piece of food is dangerous. They say, "Okay, this banana is dangerous, it's bad, it's poisonous, and probably you shouldn't have it. But in a very exceptional situation, after careful consideration and going through the most rigorous process, you should still eat the banana. Even though it's poison, please eat it.”
The point is, we should be deciding whether the banana is good or bad—whether we should eat it or not—rather than focusing on the process of how to eat it. If it's not safe, why are we spending all our time explaining how it can be eaten in limited circumstances? They just aren’t brave enough to take that extra step and say, "No more.”
Michelle: Where do you think we go from here?
Cheng-Yi: Maybe there’s still a lot we can do. I mean, some of the justices mentioned that we should work hard to persuade people. They left the door open for some sort of legislative process. But even in Germany, when the Basic Law was passed, 80% of the people still thought the death penalty was acceptable.
Michelle: The death penalty was also popular in France and Lithuania when it was abolished. It’s always popular with people.
Cheng-Yi: Right. So the battle isn’t just about persuading people—although that battle has been ongoing, as Chuanfen and Hsinyi can tell you. It’s also about letting people who have the power to interpret the Constitution and to explain what the Constitution truly values. And now you're telling us that the Constitution says the state can kill people if they are deemed evil? On one hand, I still want to maintain faith in the Constitutional Court, but on the other hand, the court had the chance to end this once and for all. Instead, they chose to maintain the status quo.
Michelle: What do you think will be the effect of the ruling?
Cheng-Yi: I think it’s a disaster for abolitionists. The legislature isn’t going to touch the issue of death penalty abolition. Referendums? Even more difficult now. The door to abolition is almost certainly closed for the next decade, maybe even twenty or thirty years. Whether or not Taiwan would still be a country then is a question. (Laughter.)
Links: a video on Lu Cheng, an executed innocent, plus a petition on dual citizenship in Taiwan
TaiwanPlus produced a fantastic ten-minute short film on the case of Lu Cheng, who was executed 24 years ago for a crime he likely didn’t commit. The forensic doctor present at the execution said he had never encountered such a resilient prisoner. After the first shot, Lu Cheng yelled, “I’m innocent.” After the second shot, he continued to shout, “I’m innocent.”
The interview with his sister, who has never stopped fighting for her brother, is particularly moving. She talks about how much he loved his wife and two young children, who were left fatherless. The video also includes an interview with lawyers from the Taiwan Innocence Project, who explain how the police coerced a confession and how they’re working to clear his name now. Bravo to Suvam Pal, who directed this film, and Divya Gopalan, whose program produced it.
Meanwhile, in Missouri, Marcellus Williams is due to be executed in two days, on September 24th. He is innocent. One unusual fact about this case is that prosecutor moved to vacate the conviction, stating that his office had grossly mishandled the murder weapon. But the higher judge still refused to vacate the conviction. You can call the governor’s office at 417-373-3400.
If you’re in Taiwan, we urge you to sign this petition for dual citizenship. It will allow residents in Taiwan to become citizens without renouncing their original citizenship. For many of us who are Taiwanese American, we have the privilege of applying for citizenship through our parents without giving up our American citizenship. But most people don’t. The way our “group” benefits from a blood-inheritance ideology of citizenship is problematic and even abhorrent.
We believe that citizenship should be inclusive, embracing people of all nationalities and backgrounds, and especially “reward” those who have lived here for a long time and call this country their home. We’ve met many of these wonderful people in Taiwan, who come from all over the world; they pay taxes, advocate for Taiwan, and care deeply about its future. Some of them even have children serving in the military (which is, ahem, better than many Taiwanese Americans applying through their parents!). Here’s the petition.
Book Club: Virginia Woolf’s To the Lighthouse and Andrea Lee’s Red Island House
We’ll talk about Virginia Woolf’s To The Lighthouse this coming Friday, September 27th, at 7:00 PM EST / Saturday, September 28th at 7:00 AM Taiwan time. For October, we’re reading Andrea Lee’s Red Island House and are meeting Friday, Oct. 25th at 7:00 PM EST / Saturday, Oct. 26th at 7:00 AM Taiwan time.