The Kaohsiung Prosecutors Office is fine, but do you know that correctional facilities are in deep trouble?

Prosecutor Lin Chun-chieh, who handled the Kaohsiung Prison hostage-taking case, wrote a response criticizing the author's critique of the Kaohsiung District Prosecutors Office's non-prosecution decision. While there are still points of disagreement, the author highly commends Prosecutor Lin's positive attitude in responding, which stands in stark contrast to the judicial higher-ups' typical refrains of "respect," "thank you for your feedback," and "no presuppositions," or even outright ignoring the matter. Confronting the issue directly and discussing it on its merits demonstrates the integrity of the handling prosecutor, showing that the capacity and accountability of frontline personnel are no less than those of their superiors. The voices of frontline prosecutors are often silenced, perhaps due to a flawed system or an atmosphere of excessive self-censorship.

A flawed system also echoes the difficulty of dialogue between the public and the authorities. A non-prosecution disposition carries the same legal effect as a final judgment, yet prosecutors' offices keep them entirely confidential, leaving the public unable to scrutinize them. Prosecutor Lin evidently cares about the criticism of being "overly eager to shield one's own" and repeatedly emphasized that the disposition document "already clearly accounted for it." As brilliant as a 53-page non-prosecution decision might be, the unfortunate reality is that the public cannot see it. If there is genuine intent to communicate with the general society, publishing major cases of high public interest in the manner of a judgment should not be an excessive demand. Should the Kaohsiung District Prosecutors Office seriously consider this?

On the other hand, the press release issued for external communication did not even mention statutory provisions. The media uniformly reported that "because it was an attempt, it is not punishable," which directly contradicts Article 163, Paragraph 3 of the Criminal Code, which explicitly states that "attempted offenses are punishable." Such a glaring contradiction—was there a problem with the spokesperson's statement, or is the media's competence simply abysmal? Curiously enough, reporters manage to "misunderstand" the judicial authorities' "profound implications" every single time. Must we always rely on the Vice President of the Judicial Yuan to step forward and explain? Whether the spokesperson misunderstood or misled, the Kaohsiung District Prosecutors Office still has not responded.

Reading Prosecutor Lin's article charitably, he seems to be explaining on behalf of the spokesperson that "attempted offenses are not punishable" refers to the "negligent offenses" under Paragraph 2 of Article 163. Negligent offenses presuppose the "result of legal interest infringement," and therefore "attempts" are not punished. Prosecutor Lin's conclusion is correct, but his phrasing is strange. In my previous article, I fixated blindly on discussing the subjective elements of intentional and negligent elements while overlooking the premise that negligent offenses require a "result." My knowledge is limited, and I humbly accept instruction. However, such phrasing by Prosecutor Lin is odd; we rarely discuss the issue of "completion versus attempt" within the context of negligence, and we truly cannot blame the media or readers for misunderstanding.

The core of the controversy—and what makes people feel most strongly that the Kaohsiung District Prosecutors Office is "overly eager to shield its own"—is the determination of the defendants' "criminal intent." The offenses of releasing prisoners or facilitating escape do punish attempts. That the prisoners did not manage to escape was merely a matter of luck; the act of releasing or facilitating escape satisfies the elements of the crime. To claim that the warden and deputy warden had not the slightest "intent to violate the law" requires Prosecutor Lin's best response to be an assertion that he adopted the theory of "two-stage crime," rather than emphasizing how diligent and arduous the investigation was. The conclusion of non-prosecution is, in fact, the same as mine; there is no absolute necessity to criminalize the warden. What differs vastly is the process of deduction. My point is that the Kaohsiung District Prosecutors Office is unwilling to even attribute "criminal intent" to the warden, which is truly lenient indeed!

The leniency of the Kaohsiung District Prosecutors Office and the Ministry of Justice's attitude of sweeping matters under the rug are cut from the same cloth, and they are disheartening. Correctional facilities ought to learn from their painful experience and implement drastic reforms—this is precisely what concerns me the most. Although space limitations prevent me from listing them one by one, how to reform was already concretely pointed out as early as 2011 in the "Preliminary Views on Prison Administration Reform" research report by the Research, Development and Evaluation Commission. The insightful recommendations from experts and scholars even thoughtfully accommodated reality by dividing goals into short-, medium-, and long-term phases. What makes the Ministry of Justice most heavily criticized is that, while knowing the core problem lies in hyper-punitive criminal and drug policies, it still adopts an ostrich mentality and refuses to change course. Correctional facilities are intertwined with the success or failure of the entire criminal justice system; it truly is not a matter of "just locking people up and everything is fine." All these various correctional reforms perhaps cannot be fully encapsulated by the Kaohsiung District Prosecutors Office's "single page" of response to a "suicide note," let alone the fact that we still do not know if we will ever see the day we can read the non-prosecution decision!

※ This article was published in the Apple Daily on Oct. 8, 2015