We Recap Taiwan’s Historic Day-long Hearing About the Death Penalty
Plus, book club details
Dear all,
We want to first apologize for [RPDR SPOILER ALERT!] spoiling the ending for RuPaul’s Drag race in our most recent newsletter. Several readers wrote in. We are terrible people. When we heard from you, we immediately changed the text on the website. This is not an attempt to excuse ourselves, but Nymphia’s win in Taiwan was treated as news, with our president immediately congratulating her on X. But—having been people who studiously avoided the Internet for the 24 hours following every Game of Thrones release—we know it doesn’t feel good to have something spoiled.
Since we last wrote, universities across the U.S. have been in uproar. As we write more than 2000 students (and some professors) have been arrested. Watching from afar, everything seems confusing and terrible. But at least one thing is pretty clear to us: if you’re a university administrator, you really shouldn’t be calling in cops to arrest your own students. This is particularly true if—at least in the case of Columbia—you’ve been telling students for decades that 1968 and student-led non-violent protests and occupation of buildings have been legitimate tactics for voicing political dissent. An important part of the university’s history is that the administration made a mistake in 1968 when it called in the cops.
Over in Taiwan, there have been a continual stream of solidarity events but no encampments. If you’re in Taipei and interested in participating in actions, join us for a Birds for Gaza event on May 18th organized by Generation Now Asia.
Death Penalty Hearing Recap
Last Tuesday, on April 23rd, Taiwan’s constitutional court held a historic day-long hearing to review the constitutionality of the death penalty. It involved six expert witnesses, three for each side, and briefing on each side reached thousands of pages. The hearing was open to the public and live-streamed on the government website. We joined a group of thirty or so staffers and volunteers from three NGOS—Taiwan Alliance to End the Death Penalty (TAEDP; see our interview with its leaders, Chuanfen Chang and Hsinyi Lin), Amnesty International Taiwan, and Judicial Reform Foundation. We collectively did real-time transcription and translation.
There’s been virtually no English language commentary on this event, so we asked Michelle’s dear student, Yimin Wang, to do a recap with us. Yimin has an encyclopedic knowledge of criminal law. He’s helped incarcerated people access parole and has volunteered at TAEDP for seven years. Just last week, he graduated from his masters program at National Taiwan University; his dissertation explored domestic violence, restorative justice, and the import of American penal approaches in Taiwan. This coming year, he'll do four months of military service, which is mandated by the state, before heading to Harvard for an L.L.M. But besides all of that, he’s humble and kind and generous, always ready to lend a helping hand to a fellow student whom he sees struggling.
In this interview we talk about recurring, central questions of the death penalty in Taiwan. Is it really “local” to Taiwan? How has public dialogue changed on this topic, and how much should social consensus matter? Should courts decide?
Is the death penalty “local” to Taiwan?
Michelle: I think this question—whether the death penalty is “local” to Taiwan—lies at the heart of the public debate here. You’ll hear it all the time in conversations here. The premise is that there’s something inherently “culturally” Asian about the death penalty, and that the desire to abolish it comes from foreigners who don’t understand Asian culture. (As we’ve written, one irony of the “foreign influence” argument is that some harsh penal approaches in Taiwan today are imports from the West.) Last Tuesday the government repeated this argument, stating that the death penalty can be justified by Confucian values and texts.
One of my favorite moments in the hearing was when Cheng-Yi Huang eviscerated that argument. (Look out in the coming month for our interview with Cheng-Yi about transitional justice.)
Cheng-Yi made three lucid and powerful responses.
First: indigenous people in Taiwan have never had the death penalty—so what do we really mean by “local”? To whom are we referring?
Second: Historically, when China used the death penalty, Confucianism was invoked by critics—not by those who practiced it.
Third: The use of the death penalty was ramped up during the KMT’s arrival, when they executed dissidents, suspected communists, and others without trial.
More simply, in Taiwan the death penalty has varied with colonial periods, with regimes, and among its diverse groups of people.
Albert: I’m in a reading group with scholars, and they were deeply moved by how Cheng-Yi invoked the historical absence of the death penalty among Indigenous Taiwanese communities. They saw this as the culmination of three decades of scholarship and advocacy for indigenous peoples. For years now, Taiwanese legal scholars such as Tay-sheng Wang, Chia-Wen Lee, and Hao-ren Wu have sought to expand our perspectives beyond that of a Sinocentric approach to crime and punishment. My friends were inspired that the decades-long work of Taiwanese scholars could get such a public hearing—and that their work was cited to make a central argument to abolish the death penalty. If you look at Chengyi’s written expert opinion, he starts his arguments with indigenous communities, turning our attention towards historical alternatives. I think this is an important way of thinking.
And on a side note, I think Cheng-Yi’s expert opinion is a masterclass in legal historical scholarship. It’s clear in prose and moral vision—and broad in its situation of the abolitionist struggle in the world. I really recommend anybody who reads Chinese to at least take a glance at it.
Yimin: I want to emphasize that values and practices that were deemed “local” have evolved over time. I think we have already moved beyond 殺人償命 (“life for a life” or “eye for an eye”). In the 1990s, the women's rights movement demanded reform of a law that favored husbands over wives. They argued that so-called “local” or traditional values violated the ideal of equality that was enshrined in our constitution. Along a similar vein, civil right activists pushing for procedural safeguards for criminal defendants argued that the power of pre-trial detention that was “traditionally” exercised by prosecutors put people’s right to liberty in jeopardy. Such advocacy prevailed not because western values were “imposed” on our society, but because our values have evolved.
There are many indications that Taiwan has moved beyond an eye for an eye. One of those moments was when many people supported activists who pled for the life of Tang Ying-shen in the late 1980s. Tang, a young indigenous person of the Tsou peoples, was abused by his employer. Ultimately Tang took the lives of his family of three in a fit of rage and was put on death row. Another moment was the trial of Deng Ru-Wen in the mid 1990s. Feminist groups raised protest banners outside of the court in support of Deng, who murdered her abusive husband and was also on death row. And in the 2000s, former Justice Ministers Morley Shih (under the DPP government) and Wang Ching-feng (under the KMT government) also instituted a moratorium on the death penalty. When the International Covenant on Civil and Political Rights became the law of the land in 2009, legislators knew that we needed to move toward the complete abolition of the death penalty.
The government knows full well that the “localness” of the death penalty is neither self-evident nor unchanging. However, in the death penalty hearing, the government failed to bring up this history.
Is there a “social consensus” about the death penalty?
Michelle: The government repeatedly argued that social consensus hasn’t been reached. What do you think of this argument?
Yimin: Justice Jan Sheng-lin addressed this question in his second round of questions He invoked the wisdom of "a man who desires to lead the orchestra must turn his back on the crowd." He gave multiple examples in which the court went against public opinion. Among the two most famous instances: Judicial Yuan Interpretation No. 748, which required marriage equality for same-sex couples, and No. 791, which ended adultery as a crime. He then went even further back and mentioned Interpretation No. 365, a 1994 case that declared statutes favoring men over women in the family unconstitutional. The Court could have given in to public opinion in 1994, but the principle of equality dictated that the Court ruled against these statutes. Justice Jan questioned the Ministry of Justice’s insistence that the Court must consider the public opinion in ruling on the death penalty.
Unsurprisingly, the Ministry dodged the question by pointing out that courts in South Africa, Ukraine and Lithuania declared the death penalty unconstitutional because it was backed by the governments.
Albert: What were the strongest arguments that you heard on the side that argues that the death penalty is constitutional?
Michelle: Although I didn’t agree with him, I think the government’s expert witness Jimmy Hsu (許家馨) was the most nuanced. He rejected the culturally essentialist view and said that this wasn’t about Eastern v. Western values. He argued that martial law had created a gulf in the public sphere between intellectuals and the public, and that intellectuals stood at odds with a broader democratic culture that still sees justice within the bounds of traditional Confucian morality. For Hsu, “judge-made constitutional law” would foreclose any possibility for dialogue.
I see the value of Hsu’s argument; a court can damage its legitimacy when it makes a judgment that is viewed as minoritarian rule. This is the broader point made by scholar Samuel Moyn, who visited Taiwan recently and gave a series of wonderful talks. I agree with a cautious and critical attitude towards courts; we have an unprecedentedly liberal court in Taiwan, but what if reactionaries make a comeback in the future and pack the court? When we look at the United States, we see what has happened with the Supreme Court, asserting its political positions under the cover of so-called legal reasoning. Still, I think that the public dialogue about the death penalty has changed, and Hsu could have provided a more precise portrait of its twists and turns over forty years. Instead, he said that dialogue has only just begun.
Yimin points us to a more popular history of social movements that have come to defend people on death row. More, the idea that social dialogue has only begun obscures the very recent—and incredibly dangerous—role that the media machine has played. Big media has shamelessly turned a morally complex issue into clickbait, fanning the flames of public desire for execution. There is an urgent need to research and bring attention to the role of big media in distorting and influencing public opinion.
Albert: I agree that Hsu was the most persuasive argument on the pro-death penalty side. But I also was not persuaded by his argument that dialogue has just begun. Perhaps we’re too embedded in activist circles, but from what we see, NGOs have spent many years putting on events, engaging in public dialogue. There have also been numerous flashpoints in the past ten years—2010 and 2014 come immediately to mind—where there was broad discussion within mainstream media about the future of the death penalty. While of course we can have more public dialogue, I feel that the argument that “public dialogue has just begun” minimizes both the work of activists and also assumes that the public hasn’t been paying attention to these issues.
Michelle: I think the notion of the death penalty’s popularity is much more complicated than the government acknowledged. As Chuan-fen and Hsinyi mentioned in our interview, people’s views are multi-dimensional. In Lithuania, supposedly 80 percent of its citizens supported the death penalty, but social scientists found varying answers depending on how polls were structured. For example, half the respondents supported the abolition of the death penalty when told that offenders would be securely isolated. I also don’t agree that a court's decision necessarily forecloses social dialogue. After Lithuania’s constitutional court abolished the death penalty, the government and nonprofits worked effectively to educate the public about alternatives to the death penalty and methods to prevent crime.
The pro-death penalty camp also did not mention the sea change in popular storytelling in Taiwan. As we’ve written, there have been popular TV shows, documentaries, and films in Taiwan that criticize the criminal legal system and expose the rank opportunism of big media. The fact these went unmentioned by the pro-death penalty camp makes you think that their measures for “social consensus” are very flat, neglecting to account for new media consumed by millions of people.
Last, youth ought to be our lodestar for determining whether social values are changing. Yet the pro-death penalty camp didn’t breathe a word about young people. To truly measure popularity, I think you have to isolate data about youth. Look at Miao Poya, an unapologetically vocal anti-death penalty city councilor, whom young people adore. This is a generation of youth who grew up without any experience of martial law; it’s also the first to grow up without corporal punishment in schools. Compared to those who came before them, they may have lower tolerance of harsh punishment. How the state approaches punishment itself shapes social attitudes. As the Lithuanian constitutional court put it, the state’s “repeated promotion of cruelty changes the public’s tolerance of it.”
How did the court talk about victims’ needs, and where does restorative justice fit in?
Michelle: I was deeply moved by Lee Hsuan-yi’s (李宣毅) opening statement. He is one of the lawyers for the 37 petitioners on death row. He talked about the grief and anger he had when his grandma was killed, and how he went to law school because he wanted to get justice for her. But as he learned more and began thinking about the origins of violence, he changed his mind and became a death penalty abolitionist.
Yimin: Yes. The hearing began and ended with very different images and conceptions of victims. In contrast to Lee, the Ministry of Justice argued in its closing statement that the state seeks the death penalty for the 37 petitioners on behalf of the victims.
On this issue, the lawyers for the petitioners made two points. First, they said that the victims’ families have diverse needs. Most have no prior experience of being a victim of a major crime and are unprepared for the sudden loss of loved ones. They may find it difficult to cope with such a disturbing and stressful situation. The anger, the helplessness, the painfulness, the bewilderment and the sorrow that follow the traumatic incident may require diverse responses that depend on the needs of individual victims. For some victims, execution of the offender is an inadequate way to provide closure.
Second, victims’ families may experience heightened pressure from the public to conform to the stereotype of an "ideal victim." The state exacerbates that pressure by publicly declaring its intention to pursue the death penalty in the aftermath of the crime. Victims’ families might not demand capital punishment if the state has facilitated alternative efforts at reconciliation. Given its resources and expertise, the state could and should do better to help them overcome the traumatic experience. So far, meaningful state response to victims’ needs have been absent.
In the end, the Ministry clung to the stereotypical notion of an ideal victim, one that demands “an eye for an eye.” In so doing, victims’ families are left to themselves after the offenders are sentenced and executed.
Albert: Could you talk about how restorative justice was discussed in the hearing?
Yimin: Justice Huang Jui-Ming brought up this issue, pointing to the petitioners’ brief. According to petitioners, social welfare reform and restorative justice could better address the diverse needs of victims' families. Justice Huang asked lawyers what proactive steps the petitioners have taken to mitigate the impact of their crimes. He also asked the petitioners’ lawyers how the idea of restorative justice could persuade victims who oppose the abolition of the death penalty.
Lee, the aforementioned lawyer, emphasized that the profound loss of a loved one lasts a lifetime. While a criminal trial may span three to five years before reaching a conclusion, the emotional recovery for victims' families extends far beyond that. A meaningful restorative dialogue between the offender and the victims depends on the right time and place. But the current structure of the criminal system in Taiwan does not provide that supportive environment where both parties can engage in a way that fosters understanding and possibly healing. (To be clear, this is a totally voluntary process, so victims’ families can choose not to participate.) It's also worth acknowledging that a significant number of petitioners were sentenced over a decade ago, a time when the concept of restorative justice had not yet gained widespread recognition. Consequently, the majority, if not all, of these individuals have not been afforded the chance to participate in any restorative processes prior to their sentencing to death.
The lawyer Liu Chi-wei represented petitioner Yang Shu-fan before the Court. He explained that Yang, who was responsible for the death of his ex-girlfriend, has sought restorative justice processes as well. We, as a community, have the responsibility to ensure that everyone is included. This demands that we must show understanding towards one another. That is the purpose of the restorative process.
Did the court address wrongful conviction and the fact that people on death row were proven innocent?
Michelle: I am surprised that wrongful conviction was not emphasized during that hearing. Can you tell me more?
Yimin: There are seven people in Taiwan who have been on death row and been exonerated:
謝志宏 (Hsieh Chih-hung, pictured above)
鄭性澤 (Cheng Hsing-tse; see our newsletter about Yu-Lun Shih’s documentary on Cheng)
江國慶 (executed)
劉秉郎
莊林勳
徐自強
There are others who have not been exonerated but highly likely to be innocent, among them 盧正 (executed), 杜明郎 (executed), 杜明雄 (executed), 王信福, and 邱和順.
Justice Jan asked the petitioners if we could reserve the practice of capital punishment in cases where there is zero chance of wrongful conviction—that is, for cases where defendants whose guilt is absolutely beyond doubt. This is a common point made by supporters of the death penalty in Taiwan; they say that people like Cheng Chieh, who went on a killing spree on Taipei MRT, or Wang Jing-yu, who severed the head of a child on the street, killed their victims in broad daylight. There could be no risk of wrongful conviction in these cases.
Michelle: Those are horrific cases. It’s difficult, if not impossible, to say any words that acknowledge the horror of those crimes. Still—I don’t think it’s self-evident that the punishment required by these crimes outweighs the risk of executing an innocent person. The existence of wrongful conviction forces us to ask: how can we entrust the awesome power of killing to a state that malfunctions repeatedly and at multiple stages of the legal process? The state arrests the wrong guy. It tortures the defendant. It coerces a confession. It uses junk science at trial. The media—which we all consume—speeds up the process of conviction. Then, during appeals, it’s deny, deny, deny. Chih-Hung Hsieh spent 19 years in prison on death row, for instance, before hard-working and mostly underpaid members of civil society worked to get him out.
How much does geopolitics matter? Europe? And why would anybody ever cite American law on the death penalty?
Albert: Was there anything that surprised you in the line of questioning from the judges? I thought the question from the judge Fu-Meei Ju (朱富美) about the death penalty and Taiwan’s geopolitical situation to be quite pointed and surprising. It seems like she was saying: Shouldn’t we hold onto the death penalty because how are we going to deal with traitors in a wartime situation? What did you think of that question?
Yimin: Her question overlooked that European countries have always navigated the landscape of geopolitical risks since the dissolution of the Soviet Union. Ukraine, a nation under armed conflicts with Russia since 2014, has not reintroduced the death penalty. This is despite Russia having attempted to influence Ukrainian politicians and obtain intelligence from national security personnel through financial means. It is a remarkable feat considering that Ukraine has significantly fewer resources than Russia in countering espionage, yet it’s Russia that is considering the reinstatement of the death penalty. The Baltic states have been living under the threat of Russian infiltration. Then again, there are no plans to reintroduce the death penalty. Therefore, her question appears to be driven more by her preference for the death penalty rather than a genuine concern for national security necessity.
Michelle: For my part, as an American lawyer, I cringed every time the pro-death penalty camp cited American law. I wish the judges had questioned whether American law on the death penalty could ever be a guide to the world. In the United States capital punishment is indisputably racist in its application. In one famous study of 2,500 murder cases in Georgia, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence than defendants charged with killing Black victims. This statistical disparity was brought to the Supreme Court in 1987, but the death penalty wasn’t struck down. Justice Powell famously said on his deathbed that he made a mistake and wished he could change his vote.
Race is just one powerful example of how arbitrary the death penalty is in the United States. But there are many other factors, such as access to and quality of legal representation, the state one lives in, and so on.
On another note, Yimin, I know that Europe gives Taiwan flak for not yet abolishing the death penalty. Can you tell us more about this?
Yimin: Just this Friday, the EU representative in Taiwan met with Chen Chu, once again calling for the abolition. Taiwan has faced ongoing pressure from the international community to abolish the death penalty in recent years. In 2013, a group of international human rights law experts invited by the government strongly recommended that Taiwan step up its efforts towards abolishing capital punishment and to promptly enact a moratorium on executions. Similar recommendations were made in 2017 and 2022. Most recently, the experts again expressed their extreme disappointment that Taiwan continued with the executions despite the recommendations made in the last decade. The European Union, with whom the government claims to share democratic values and human rights, has also repeatedly urged Taiwan to abolish the death penalty.
In response, the government has consistently claimed that it adhered to the policy of “gradual abolition of the death penalty (逐步廢除死刑).” Under this policy, the government acknowledges the imperative to abolish the death penalty, yet it intends to do so gradually. It aims to restrict the use of the death penalty, implement procedural safeguards for capital defendants, and introduce alternatives to capital punishment—all with the hope of garnering public support for eventual abolition.
But the arguments presented by the Ministry of Justice at the hearing should cast doubt on its professed commitment to gradual abolition. The representative of the Ministry explicitly denied the right to life of perpetrator and affirmed the power of the state to take away their lives. When asked by Justice Jan what concrete steps it had taken to promote abolition, the government failed to provide any evidence other than conducting polls.
The hearing may have revealed that its claim of gradual abolition of the death penalty has always been used to maintain its image as a country that upholds human rights.
Albert and Michelle: Thanks so much for taking the time to be a part in this discussion, Yimin!
Related Links
If you are interested in re-watching the day’s proceedings, you can watch the whole thing on YouTube here:
And all of the case files, including the petition, expert opinions, and amicus briefs are available here.
For a global perspective on the death penalty, we recommend Comparative Capital Punishment, edited by Carol Steiker and Jordan Steiker. For a view on the local-global dynamic in Taiwan, we recommend Chia-Wen Lee’s piece in Taiwan in Dynamic Transition: Nation Building and Democratization, edited by Ryan Dunch and Ashley Esarey.
Our interview with Hsinyi Lin and Chuanfen Chang of TAEDP
Our piece on how accusations of “foreign influence” are wielded like a smoking gun in debates about the death penalty (here’s the Chinese version, translated by Grace Lin)
Our post about how popular movies and television shows in Taiwan criticize the death penalty
The Diplomat interviews Kirsten Han, who works tirelessly to abolish the death penalty in Singapore
Our guest essay from Shesshsan Balakrishnan about the death penalty in Malaysia
Lu Chun-yi (盧俊義), a pastor of a Presbyterian church in Taiwan, wrote about the death penalty in 2010
Book Club
We’ll finish Abraham Verghese’s COVENANT OF WATER this month, then read Claire Keegan’s FOSTER and SMALL THINGS LIKE THESE, then Claire Messud’s THIS STRANGE EVENTFUL HISTORY. Reply to this email for the zoom link.
Friday, May 31 / Saturday June 1 Abraham Verghese, COVENANT OF WATER
Friday, June 28 / Saturday, June 29 Claire Keegan, FOSTER & SMALL THINGS LIKE THESE
Friday, Aug 2 / Saturday, Aug 3 - Claire Messud, THIS STRANGE EVENTFUL HISTORY