Where is the New Criminal Policy?

The current Criminal Code was enacted in 1935 during an agrarian society in China. Over the past 68 years, instead of large-scale criminal legislative policy reforms in sync with the rest of the world, only piecemeal amendments were made. Today, a major overhaul has finally been carried out.

However, while ostensibly framed as preparation for the abolition of the death penalty, the substance of the amendments points toward a policy of severe punishment that drives offenders to the margins of society. Furthermore, to address overcrowded prisons that fail to meet future demands for strict punishment, the Department of Corrections of the Ministry of Justice has already begun planning a mega-prison in western Taiwan capable of housing 15,000 inmates. Faced with this criminal policy that emphasizes mere incarceration, we cannot help but ponder the astronomical budget required (not only for construction, but also for personnel and housing costs). Moreover, when these inmates are released as "elderly individuals" after years behind bars, the state will still bear the welfare responsibility for their lives. It is deeply concerning whether the government's criminal policy might drag down a Taiwanese society that is currently undergoing transformation.

The deterioration of public order, the surge in property crimes, the constant emergence of sophisticated cybercrimes, and successive ministers proclaiming zero growth in national crime all demonstrate that Taiwan's criminal policy fails to meet public expectations and is in urgent need of reform. Yet, when Legislator Ch'en Kên-tê, acting upon the recommendations of professors such as Lin Shan-tien of National Taiwan University, proposed progressive criminal legislative policies—such as strictly limiting the use of short-term custodial sentences, simultaneously rectifying deficiencies in the elements of current "criminal offense types" (e.g., intentional offenses, negligent offenses, offenses aggravated by their consequences, accomplices), introducing alternatives to short-term custodial sentences for traffic negligence offenses such as community service and driving bans, improving flaws in the fine system, and incorporating civil settlements as sentencing factors—these advanced amendments were opposed by conservative factions and failed to gain favor, leaving people deeply disappointed. Currently, in guilty verdicts handed down by district courts, judges make heavy use of short-term custodial sentences, with 70 percent of those verdicts actually being fixed-term imprisonment of less than one year. Provisions that criminal law academia has long criticized and anxiously hoped to see amended were rejected by legislators.

Instead of looking to foreign penalty systems that offer alternatives to incarceration, legislators blindly believe that locking people away can achieve social justice. This results in many first-time offenders being subjected to negative influences in prison simply for being locked up for one or two months, turning them into repeat offenders upon release. In addition, many economic crimes, offenses against public safety, and tech-based sophisticated crimes share characteristics such as brief commission times, numerous victims, and massive damages. Yet, due to the subjective bias of individual judges, these cases often result in lenient sentences or unfair disparities in sentencing severity. This kind of criminal policy only plunges society into further chaos. Some scholars have called for referencing the system of the United States Sentencing Commission to establish a scientific and fair sentencing guideline grid for defendants, yet unexpectedly, this proposal was also blocked.

The Ministry of Justice has consistently argued that society is in turmoil because legal penalties are too lenient; in reality, however, the problem is not that legal penalties are too lenient, but rather that judges hand down sentences that are too light. Furthermore, legislators refused to amend the systems of "deprivation of civil rights," "compulsory labor" (thought reform), and "detention" (拘役), which currently exist only in Taiwan and communist countries. This inevitably raises the question: How should Taiwan's criminal policy forge its own path?

※ Published in: 2005-1-9 / China Times / Forum