Amicus Curiae Brief to the Constitutional Court | The Case on the Unconstitutionality of the Death Penalty

Main Case Number: 111-Xian-Min-Zi-No.904052
Amicus Curiae: Judicial Reform Foundation
Representative: Huang Hsu-t'ien (See power of attorney for details)
Agents: Wu Han-sheng, Attorney-at-law; Lu Cheng-yen, Attorney-at-law; Chiao Cheng-hsiang, Attorney-at-law (See powers of attorney for details)

---

Regarding the petition for the constitutional review of legal norms filed by individuals in Case 111-Xian-Min-Zi-No.904052, this amicus curiae brief is submitted pursuant to Article 20, Paragraph 1 of the Constitutional Court Procedure Act and the Constitutional Court's ruling in Case 111-Xian-Min-Zi-No.904052 dated February 22, 2024:

I. Disclosures Required for Submitting an Amicus Curiae Brief:

Pursuant to Article 20, Paragraph 3 and Article 19, Paragraph 3 of the Constitutional Court Procedure Act, individuals or organizations other than the parties or interested persons, when submitting professional opinions or materials, shall disclose whether they have any division of labor or cooperative relationship with the parties, interested persons, or their agents, as well as any financial remuneration or subsidy and the amount or value thereof.

This amicus curiae brief was drafted by agents Wu Han-sheng, Attorney-at-law; Lu Cheng-yen, Attorney-at-law; Chiao Cheng-hsiang, Attorney-at-law; and Kuo Hao-jen, Attorney-at-law (non-agent). Regarding the preparation and submission of this brief, this Foundation, its representative, its agents, and the consulted experts have:

(1) Had no division of labor or cooperative relationship whatsoever with the petitioners, underlying case parties, interested persons, or their agents in Case 111-Xian-Min-Zi-No.904052 and its consolidated cases;
(2) Received no financial remuneration or subsidy from the petitioners, underlying case parties, interested persons, or their agents in Case 111-Xian-Min-Zi-No.904052 and its consolidated cases;
(3) No legal interest or command-and-supervision relationship with the aforementioned petitioners, underlying case parties, interested persons, or their agents;
(4) Received no financial remuneration or subsidy from any other source.

II. This Foundation's Opinions and Reasons in Support of the Petitioners, Categorized According to the Issues Announced by this Court, are as Follows:

Issue Outline 1: Whether the death penalty, as a form of statutory punishment, is unconstitutional:
(1) Aside from depriving the right to life, does the death penalty infringe upon other constitutional rights, such as the right to be free from torture and human dignity?
(2) What are the objectives pursued by the death penalty system? Are they all constitutional?
(3) Does using the death penalty as a means to achieve the aforementioned objectives, resulting in the deprivation of people's constitutional rights, permissible under our Constitution?

1. The fundamental essence of constitutional basic rights is the protection of human dignity; no state action shall have as its objective the permanent exclusion of individuals from society, otherwise it is tantamount to annihilating human dignity:

(1) Human dignity is the dignity of the human person, individual dignity. Human dignity primarily emphasizes the distinctiveness and independence of the human person, and has gradually evolved from traditional ethics and morals into the foundation of the legal order and a fundamental principle of the Constitution. Human dignity only has meaning based on the protection and respect of the right to life; therefore, the state shall not treat individuals as objects or instruments. Secondly, absolute respect shall be given to people's autonomy and self-determination, whether in the private or public sphere. Thus, human dignity, as a core value protected by the Constitution, while capable of limitation, cannot be deprived, otherwise it violates the aforementioned constitutional purpose of protecting human dignity.

(2) Although our Constitution does not explicitly stipulate the protection of human dignity, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights explicitly recognize human dignity (or personal dignity) as an inviolable value of humankind, and that the state shall afford it maximum protection. Furthermore, this Court's Judicial Yuan Interpretation No. 603 explicitly states: "The safeguarding of human dignity and the respect for the free development of personality are the core values of the liberal democratic constitutional order." (Interpretations No. 656, 689, and this Court's 2023 Constitutional Judgment No. 8 hold the same view). Former Grand Justice Su Chun-hsiung also explicitly pointed out in his concurring (and partly dissenting) opinion in this Court's Interpretation No. 372: Human dignity is a natural law prior to state systems (including penal systems, of course) and a basic right protected by the constitutions of general nations. Therefore, although our Constitution does not explicitly stipulate human dignity as one of the basic rights like the German Basic Law, it does not impede human dignity from being the core value intended to be safeguarded by our Constitution.

(3) Since the safeguarding of human dignity is a core value of the liberal democratic constitutional order, all basic rights stipulated in the Constitution shall exist to protect the human dignity of every citizen. For only when an individual's subjectivity is secured in social communal life can they freely develop their personality. Consequently, if a state action has as its ultimate goal the permanent exclusion of an individual from society, its essence denies the person's qualification as "a member living together in society." This action is no different from treating the excluded person as an "enemy" of society, or even viewing the excluded person as non-human. Consequently, the excluded person cannot freely develop their personality, and their human dignity cannot be secured. This action undoubtedly annihilates human dignity and violates the fundamental intent of the Constitution to safeguard human dignity.

2. Modern punishment must not be established solely to respond to and penalize past harms, but must also encompass the functions of addressing and preventing potential future harms, and its execution results shall not exclude people from society, otherwise it contradicts the purpose of the Constitution:

(1) The purpose of punishment, since the development of the retributive theory proposed by Immanuel Kant up to the present, has gradually shifted toward the special prevention theory proposed by German criminal law scholar F. von Liszt. Of course, the aforementioned theoretical developments were all aimed at protecting human "human dignity," but any theory's explanation of the purpose of punishment has its flaws and incompleteness, whether it is retribution, general prevention, or special prevention theory. Just as physics once explained the nature of "light" as "particles" or "waves," modern physics believes that light simultaneously possesses the properties of both waves and particles, and neither property can be neglected, otherwise it cannot constitute "light." Punishment is no different. Retribution, general prevention, and special prevention theories are all core to modern penology and are indispensable. When legislators enact punishments, although they mostly proceed from the perspective of general prevention and hope to achieve a deterrent effect, looking at the execution of punishment, our current Enforcement of Custodial Punishments Act, the International Covenant on Civil and Political Rights, this Court's Interpretation No. 796, and Grand Justice Tsai Ming-cheng's partial concurring opinion in Interpretation No. 796 all recognize that the primary purpose of punishment must still be to reform the offender so that they may return to society. Therefore, even if legislators establish specific types of punishment in response to specific behaviors out of the pursuit of general prevention objectives, it does not impede the inherent nature of punishment requiring a rehabilitative function.

(2) Admittedly, stipulating severe punishment or the death penalty for specific acts in the criminal code may have a certain comforting effect on the public, but in reality, is the stimulation (or deterrence) of human behavior by punishment so simple? Historical criminological research has not proven this, and there is even no empirical research showing whether the death penalty possesses special deterrent power. On the contrary, according to statistics from the competent authority, our country's crime rate has shown a downward trend since 2001 (the number of crimes in 2021 was only 48% of that in 2001, as detailed further below). This demonstrates that the decrease in crime rates brought about by prison rehabilitation may far outweigh the infinite aggravation of punishment, further proving that punishments whose sole objectives are retribution or general prevention can hardly pass the proportionality test.

(3) Therefore, whether departing from the core constitutional value of protecting human dignity or discussing the purpose of punishment itself, it must be recognized that punishment must be established based on the objective of "enabling the offender to reintegrate into society," otherwise it has no possibility of being constitutional.

3. The death penalty has no special prevention objectives to speak of, lacks the basic requirements of a modern rule-of-law state for punishment, and annihilates human dignity. It inherently contradicts the fundamental intent of the Constitution to safeguard human dignity and the purpose of administering punishment:

(1) As mentioned above, punishments in a modern rule-of-law state must balance retribution, general prevention, and special prevention. Although "retribution" is one of the foundations for exercising punishment (i.e., "responding to past harms that have occurred"), the severity of punishment must still be prudently determined by judicial authorities up to an upper limit based on the offender's degree of culpability. Within this upper limit, consideration should be given to the time needed for the offender's rehabilitation and preparation for reintegration into society, after which a reasonable sentence shall be pronounced. Correctional institutions shall then endeavor in accordance with the law to reform the offender during the term of imprisonment, with the expectation that they may reintegrate and once again become "a member living together in society" (i.e., "preventing and addressing potential future harms"). Only in this way can the punishment conform to the constitutional purpose of protecting human dignity.

(2) However, the death penalty completely lacks the aforementioned functions of "preventing and addressing potential future harms" required by modern criminal law. It merely exhibits the aspect of the retributive theory of "an eye for an eye, a tooth for a tooth." At most, legislators may use this type of punishment at the time of legislation to proclaim to the entire nation and make the public aware of the severity of specific criminal acts, without any design allowing the people who committed the crime and were subsequently executed to reintegrate into society. Therefore, the death penalty fails to satisfy the multi-faceted demands that modern penology should encompass, and given its irreversible nature, one cannot expect the state to realize the fundamental constitutional value of protecting human dignity through the execution of the death penalty.

(3) In summary, although the death penalty is currently one of our country's punishments, it fails to meet the demands of modern penal theories that must balance retribution, general prevention, and special prevention theories. Furthermore, its execution results in permanently excluding people who have made mistakes (or even wrongful convictions) from society, which also violates the constitutional requirement for the protection of human dignity. Therefore, the death penalty clearly has no possibility of being constitutional.

4. The death penalty prescribed in Article 33, Subparagraph 1 of the Criminal Code contravenes the fundamental intent of Article 15 of the Constitution to protect the people's right to life, and violates the proportionality principle set forth in Article 23 of the Constitution:

(1) Debates on the abolition of the death penalty internationally and domestically are often hindered by public opposition. To this end, the following will respond to public opinion and viewpoints supporting the maintenance of the death penalty system to explain the argument that the death penalty should be unconstitutional. The core viewpoints of reasonable public support for the death penalty system are explained as follows:

(a) First, it can be explained through Matthew Kramer's "purgative rationale." Kramer argues that when certain crimes possess a monstrously evil nature sufficient to desecrate the criminal's own humanity, the community has an obligation to expel the criminal from the community through the death penalty in order to "purge" the moral contamination caused by the evil crime to humanity, because the continued survival of the criminal is tantamount to a desecration of humanity and universal values to which they belong.

(b) Through the concept of "extreme evil," the purgative rationale limits the application of the death penalty to extreme exceptional circumstances, without excluding "serious crimes" based on certain social causes (e.g., poverty, sympathetic upbringing background); meanwhile, it also explains the rationality of public "righteous indignation," thereby attempting to explain that the demand that "extremely evil persons 'should not' be recognized as human beings" is a moral sentiment originating from the moral intuition of the majority, which may be a legitimate manifestation of "retributivism" (or a view of justice).

(c) If one is to further engage in dialogue with the public, the aforementioned "moral sentiment" cannot simply be treated as a negative phenomenon that is irrational and needs to be recognized and overcome. In fact, objective moral standards (i.e., penal standards) arrived at through long-term rational debate can hardly run counter to the public's moral sentiment. This moral sentiment is most strongly expressed in the common empathy query: "If someone you loved was cruelly and inhumanely murdered by a killer, do you think the punishment for the killer must completely exclude the possibility of the death penalty?" Furthermore, if it is considered reasonable that "the family members of victims harbor emotions denying the killer's qualification as a human being," then retaining the death penalty as an option in criminal law is also reasonable.

(2) The death penalty system, as an extreme moral action or argument in the form of the purgative rationale, should not be systematically supported by public power through legal compulsion at the legislative level; at the sentencing level, it must inevitably be tied to the adjudicator's personal moral judgment and cannot be restrained even through due process of law, thus possessing arbitrariness:

(a) The focus of the purgative rationale is that we can identify "demons who have annihilated humanity" through their crimes, and since "it" has deprived others of their lives and denied its own humanity through its crime, re-acknowledging "it"s humanity fails to maintain or restore the community's seriousness and integrity regarding moral obligations (good values). The question is: Why is it "reasonable" for the personality denial of extremely evil persons (e.g., death penalty, life imprisonment without parole) to consolidate or restore the community's moral obligations? What is the significance?

(b) Personality denial seems to be the most serious moral condemnation, without which its malignity cannot be manifested. By distinguishing between "it" and "us," people proclaim a red line that no one may cross. As can be seen from the reactions of the media and the crowd to the death penalty, the purpose of this proclamation does not care whether the function of general prevention can be achieved, but rather seeks to transmit and share the strongest moral message to the criminal and community members through the harshest punishment. However, since the crime is already "extremely evil" without the possibility of shaking or loosening moral obligations, the sharing of this moral message certainly has no function of consolidating moral obligations or strengthening psychological coercion, but merely serves to confirm the truth of this message (i.e., oneself). Viewed from the term "purgative" in Kramer's reasoning, what it practices is indeed a collective moral fastidiousness. In short, the death penalty system is not actively supported; its rationality and significance lie in serving as the "harshest condemnation ritual," deemed irreplaceable in symbolic significance. Since the death penalty possesses no other purpose, its sole purpose or meaning is to serve as the "harshest condemnation ritual," and thus it can also be said to be an end in itself.

(c) From this perspective, the death penalty system is a moral action that stops at nothing, possesses extreme significance, and has only the institution itself as its end. Its extremity is also manifested in the attitude of many supporters who "take it for granted that their own arguments are absolutely correct and not at all extreme," and even launch overly radical criticisms and personal threats against abolitionists. These non-negotiable qualities, difficult to reconcile with other pluralistic values, become the reason why it ultimately cannot conform to the liberal democratic constitutional order, and is thus falsified by constitutional law and penal theory. Here, this brief specifically points out that the death penalty system, as an extreme moral action, cannot possess legal operationality and should be unconstitutional:

a. For proponents of the purgative rationale, precisely describing the degree of evil of extreme evil (such as the number of people killed, methods, targets, motives, time span) seems irrelevant, but this is the core issue during adjudication. Michael H. Stone, in his book The Anatomy of Evil, after systematically analyzing murder cases in the United States, categorized 22 levels of evil, with the highest levels being serial, pathological murderers whose primary motivation is sadism. Conversely, in recent years, the public clamor for the death penalty in our country has been directed at acts such as child abuse resulting in death, child murder, and police murder. For adjudicators, for what kind of crime can sentencing a person to death be considered non-arbitrary? Are criminals whose motives are money, power, or hatred, but who do not enjoy the process of killing, "less evil"? Are acts that do not directly but still result in the deaths of numerous people (e.g., unscrupulous entrepreneurs causing environmental pollution, dictators' social purges, officials executing social purges, or frontline executioners) also extremely evil?

b. As Professor Yen Chueh-an points out, the concept of "extreme evil" is a proposition that already implicitly contains the conclusion of supporting the death penalty system. Looking back to think about "what kind of crime 'deserves' the death penalty," one finds that the sentencing of the death penalty stems entirely from the adjudicator's moral intuition. Professor Yen Chueh-an points out that the pronouncement of the death penalty cannot fail to simultaneously be a "personal judgment":

Because the moral judgment serving as the basis for the retributive echo of "crime/culpability/punishment" relies too heavily on moral evaluations lacking consensus (for example, is killing a child or a police officer necessarily more serious than killing an elderly person or a teacher?), and this divergence in evaluation benchmarks cannot be thoroughly overcome through due process of law. And when the "effect" of such judgment is the killing of a person, the only "bottom line" that can meet "fairness" happens to be "not" killing them. For such death penalty sentencing, we can never be without any reasonable doubt (beyond reasonable doubt).
To put it more poetically: under the requirements of due process of law, we can live with the gray areas, but cannot be compatible with the "dark areas".
To put it philosophically: Fairness defeats desert. Why does fairness defeat desert? The reason goes back to the inherent limitations of the judgment of "desert": under reasonable pluralism, the moral judgment required by desert cannot absolutely and solidly pass the fairness test of due process of law, and therefore the possibility of "punishment" must remain forever open and revisable.

What I want to highlight here is that a "civilized death penalty" may be even more terrifying. Specifically, suppose the T'ang Ying-shen case had occurred in recent years; what is important is not that the judiciary has the opportunity not to sentence him to death, but that if he were still sentenced to death, the judgment would likely offer "more sufficient" reasons to support it. Under a civilized death penalty system, we conversely cannot offer "decisive" reasons for opposing this type of death penalty case. ... For the defense, it is impossible to ultimately refute the prosecution's demand for the death penalty and the court's pronouncement of the death penalty. Whether to execute or not hangs on the whim of a few people, but these decisions are all "reasonable".

c. For proponents of the death penalty, the above problems merely cling to the "technical problems of individual cases" and believe that when a level 22 murderer of evil appears, people can naturally easily reach a consensus to sentence them to death. Admittedly, people are free to make the moral judgment that "death is too good for them," but there seems to be an unsettling moral message here that contradicts the purgative rationale: "Why must good people distinguish these incomprehensible evils? Should not all these evils be thoroughly eliminated?"

d. The point here is not whether the above moral judgment is "moral or immoral," but that under a liberal democratic constitutional order, such extreme moral judgments do not become "moderate" or "ordinary" just because they conform to the views of the majority, such that they are sufficient to be systematically and forcibly implemented by state power through law. On the contrary, under a constitutional order that protects people's basic rights, there are numerous and diverse moral claims and values of the good in society, and state power will not carry out extreme moral claims through compulsory systems.

e. It should be clarified that the abolition of the death penalty system does not mean that public power denies the moral stance that "extremely evil persons deserve to die" or that "family members of victims deny the killer's qualification as a human person," but merely reiterates that this stance is not endorsed by state power, and should instead be judged through constitutional law and penal theory. In other words, an adjudicator may still, while agreeing with this moral stance, conclude that the death penalty system contravenes the Constitution.

(3) In the article titled "Retribution, the Death Penalty, and the Psychology of Severe Punishment," Professor Li Mao-sheng's interpretation of Hsieh Yu-wei's writings points out:

The point of Hsieh's article is not the theoretical negation of the purgative rationale, but rather pointing out that we must face the social reality indicated by the purgative rationale. That is, letting the state possess this kind of extreme power is not an individual matter, but involves the issue of the values of society as a whole. Even though the rationality of the existence of the death penalty cannot be justified theoretically, the death penalty is a reality in Taiwan; 80% of citizens, including judges, regardless of their reasoning, simply affirm the existence of the death penalty.

(4) The emotionally charged moral sentiments expressed by the public regarding serious crimes are indeed overly extreme moral claims in supporting the conclusion of the death penalty, but this moral claim may still be reasonable (conversely, opposing moral claims may also be reasonable). In fact, under a liberal democratic constitutional order, reasonable moral claims unsupported by law are ubiquitous, and this does not constitute an obstacle to declaring the death penalty system unconstitutional, nor does it mean this Court is replacing the public's moral judgment with its own moral judgment. The point is that abandoning the "harshest condemnation ritual" does not mean lowering the degree of people's rejection or condemnation of serious crimes. Through this, we can also cease clinging to the "highest grade," which actually only possesses symbolic significance and may empirically paralyze society from taking beneficial actions; instead, we can contemplate another "extremely severe condemnation ritual" that strips away the symbolic significance possessed by the "highest grade," and send a more positive message to the public alongside the commensurate pronouncement of life imprisonment. For example, relevant agencies can synthesize and submit an official report to citizens annually regarding the occurrence of major criminal cases, reiterating the condemnation of crimes while also studying relevant risk factors to reduce the systemic factors giving rise to perpetrators, or appealing to potential victims to pay attention to risks. In addition to written reports, public events can be held to exchange views and mourn, conducting social condemnation and restoration more clearly and solemnly.

(5) In summary, the death penalty system itself, as an extreme moral action, should not be systematically supported by public power through legal compulsion at the legislative level; at the sentencing level, it must inevitably be tied to the adjudicator's personal moral judgment and cannot be restrained even through due process of law, thus possessing arbitrariness. Therefore, pursuant to the protection of the people's right to life under Article 15 of the Constitution and the principle of proportionality under Article 23, Article 33, Subparagraph 1 of the Criminal Code should be declared unconstitutional.

5. Observing the number of death penalty executions and the number of major public safety crimes occurring in our country over the past twenty years, it can be seen that "the fewer death penalty executions, the fewer major public safety crimes occur" trend. Whether the death penalty can deter crime and maintain social public safety in our society is highly questionable:

(1) Constrained by the page limits of this Court's Rules of Procedure, the following paragraphs are only a summary. For the full text, please refer to Supplementary Amicus Curiae Brief (I) (Reference to Exhibit 1), pages 1 to 3.

(2) Over the 23-year period from 2000 to 2023, the total number of people executed under the death penalty in our country was 84, showing a downward trend year by year. However, according to public data from the National Police Agency's Police Statistics Query Network of the Executive Yuan (Reference to Exhibit 2), the number of major public safety crimes punishable by the death penalty (intentional homicide, kidnapping, forcible sexual assault, robbery) also significantly decreased during the period from 2000 to 2023 (with decreases ranging from 89% to 96%). This presents a situation where "the fewer death penalty executions, the fewer major public safety crimes occur." Consequently, whether the death penalty can achieve the objectives of deterring crime and maintaining public safety in our society is highly questionable. To step back, even assuming that the death penalty is not without a deterrent effect on crime, since the non-execution of the death penalty can also drastically reduce the occurrence of major public safety crimes, the death penalty is not only not the sole means capable of deterring crime, nor is it the least restrictive means, thus violating the principle of proportionality.

6. The criminal policy of our country over the past 26 years has been to drastically raise the parole thresholds for custodial sentences, the probation periods following parole, and the upper limits of cumulative years for concurrent sentencing of custodial sentences while simultaneously reducing death penalty executions, and social public safety has continued to improve. It can be affirmed that the abolition of the death penalty has complementary measures already in implementation:

(1) As shown by the previous data, the number of death penalty executions in our country has shown a downward trend year by year starting from 1996. Coincidentally, our country's criminal policy was also substantially adjusted between 1997 and 2005. First, regarding the parole threshold for imprisonment under Article 77, Paragraph 1 of the Criminal Code, prior to its amendment on November 11, 1997, it was "more than 10 years for life imprisonment, more than one-third for fixed-term imprisonment." Subsequently, that paragraph was amended on the same day to "more than 25 years for life imprisonment, more than 20 years for habitual offenders, more than one-half for fixed-term imprisonment, and more than two-thirds for habitual offenders." That paragraph was amended again in 2005 to "more than 25 years for life imprisonment," and a circumstance where fixed-term imprisonment is ineligible for parole was added in Paragraph 2 of the same article (i.e., including the so-called three-strikes rule). It can be seen from the above that the parole threshold for custodial sentences was substantially raised between 1997 and 2005, with the life imprisonment parole threshold raised from the original 10 years to 25 years, alongside raising or adding parole thresholds for habitual offenders.

(2) At the same time, according to the former text of Article 79, Paragraph 1 of the Criminal Code prior to its amendment on November 11, 1997: "Where parole from life imprisonment is not revoked after 10 years, or where parole from fixed-term imprisonment is not revoked within the remaining term of imprisonment, the unexecuted sentence shall be deemed executed," and referring to the provision of Article 93, Paragraph 2 of the same Code: "Persons released on parole shall be placed under protection-surveillance during parole," it can be seen that the period for which life imprisonment parolees were to be placed under protection-surveillance was originally 10 years. However, the aforementioned provision of Article 79, Paragraph 1, first sentence, of the Criminal Code was subsequently amended twice on November 11, 1997, and January 7, 2005, to "after 20 years from parole for life imprisonment...", substantially increasing the period under protection-surveillance following life imprisonment parole to 20 years.

(3) Furthermore, Article 51, Subparagraph 5 of the Criminal Code prior to its amendment on January 7, 2005: "For concurrent sentencing of multiple offenses, separate sentences shall be pronounced for each crime, and the aggregate sentence to be executed shall be determined according to the following subparagraphs: ... 5. Where multiple fixed-term imprisonments are pronounced, the aggregate sentence shall be fixed at a period above the longest of the individual sentences and below the total accumulated length of the sentences. However, it shall not exceed 20 years," was amended on the same day to read: "... shall not exceed 30 years," raising the upper limit for the aggregate execution sentence of fixed-term imprisonment from 20 years to 30 years.

(4) Although the legislative reasons for the amendments to the aforementioned Article 77, Paragraph 1, Article 79, Paragraph 1, and Article 51, Subparagraph 5 of the Criminal Code did not mention the death penalty execution policy, viewing the aforementioned legislative history, death penalty execution status, and the objective facts of the number of major public safety crimes together, it is evident that our country's criminal policy over the past 26 years (from 1997 to 2023) has indeed been to reduce the number of death penalty executions year by year while maintaining social public safety through policies such as substantially raising the parole thresholds for custodial sentences, the protection-surveillance periods after parole, and the upper limits of cumulative years for concurrent sentencing of custodial sentences. The result of this is a significant decrease in the occurrence of major public safety crimes. Considering that the number of death penalty executions in our country over the past 8 years has been 3, reaching the extent of extremely rare application of the death penalty, the aforementioned custodial sentence and security measure policies already implemented are, for the purpose of maintaining social public safety, practically indistinguishable from complementary measures for the abolition of the death penalty system, and they are complementary measures that have been implemented and applied for over 15 years (starting from 2007) with practical results. Based on this, the abolition of the death penalty system does not require the addition of other complementary measures.

7. Life imprisonment without parole is tantamount to making the convict wait for death within prison, constitutes cruel and inhuman treatment, infringes upon their human dignity, and thus cannot serve as a criminal sanction measure to replace the death penalty:

(1) Constrained by the page limits of this Court's Rules of Procedure, the following paragraphs are only a summary. For the full text, please refer to Supplementary Amicus Curiae Brief (I) (Reference to Exhibit 1), pages 3 to 5.

(2) Rehabilitation is the primary purpose of custodial sentences, and life imprisonment without parole contradicts this purpose. If the execution of imprisonment deprives the convict of the hope and opportunity to regain freedom and reintegrate into society, it constitutes inhuman treatment and infringes upon their human dignity. Life imprisonment without parole is a cruel and inhuman treatment that infringes upon human dignity and therefore cannot serve as a criminal sanction measure to replace the death penalty.

8. Sentencing persons with impaired cognitive capacity to death not only fails to assist in achieving the purpose of punishment, but constitutes excessively harsh treatment. Article 19 of the Criminal Code, by still leaving open the possibility of death penalty deprivation of life when a defendant lacks culpability due to an overall lack of cognitive capacity, violates the principle of proportionality and the principle of correspondence under Article 23 of the Constitution:

(1) Constrained by the page limits of this Court's Rules of Procedure, the following paragraphs are only a summary. For the full text, please refer to Supplementary Amicus Curiae Brief (II) (Reference to Exhibit 3), pages 1 to 7.

(2) The purpose of punishment is to attribute responsibility for the perpetrator's conduct and make the perpetrator accountable for their criminal conduct. Therefore, it is predicated on the perpetrator understanding the prohibitions or mandates prescribed by law, committing the criminal conduct based on free will after rational consideration, and possessing the capacity to be responsible for their conduct. Referring to international human rights law standards, because persons with impaired cognitive capacity have an insufficient understanding of punishment, their culpability for criminal conduct is diminished, and they shall not be sentenced to or executed with the death penalty. Referring further to the views of the United States Supreme Court, persons with impaired cognitive capacity lack sufficient capacity for reasoning and impulse control and lack blameworthiness; sentencing them to death cannot achieve the purpose of punishment and violates the Eighth Amendment prohibition against excessive sentencing under the U.S. Constitution.

(3) Sentencing persons with impaired cognitive capacity to death not only fails to aid in achieving the purpose of punishment, but also results in excessively harsh treatment. Article 19 of the Criminal Code only regulates distinctions for "exemption from punishment" or "reduction of punishment" based on the defendant's "degree of cognitive capacity" "at the time of commission," without excluding the possibility of the death penalty depriving life when the defendant lacks culpability due to an overall lack of cognitive capacity outside the time of commission. This clearly violates the principle of correspondence and the principle of proportionality under Article 23 of the Constitution.

9. The trial proceedings for persons with impaired cognitive capacity carry a high risk of lacking fairness and completeness. Therefore, Article 19 of the Criminal Code, which restricts distinctions to "exemption from punishment" or "reduction of punishment" based on the defendant's "degree of cognitive capacity" "at the time of commission" and fails to apply to defendants lacking cognitive capacity at times other than the time of commission, violates the principle of due process of law in cases where the death penalty is pronounced:

(1) Constrained by the page limits of this Court's Rules of Procedure, the following paragraphs are only a summary. For the full text, please refer to Supplementary Amicus Curiae Brief (II) (Reference to Exhibit 3), pages 7 to 14.

(2) The right to a fair trial by a court in judicial proceedings, enjoying full rights of defense and receiving substantially effective defense by counsel, constitutes the content of the constitutional principle of due process of law. Judgments of the U.S. Supreme Court and reports of the American Bar Association both point out that persons with impaired cognitive capacity bear a heightened risk of wrongful death sentences during trial proceedings, which undermines the fairness and completeness of trial proceedings. Therefore, imposing the death penalty on persons with impaired cognitive capacity should be prohibited.

(3) Our criminal procedure does not adequately guarantee the right of defendants with impaired cognitive capacity to receive a fair trial. Article 19 of the Criminal Code fails to apply to defendants lacking cognitive capacity at times other than the time of commission, which, with respect to death penalty pronouncement cases, violates the principle of due process of law.

10. Article 19 of the Criminal Code limits the application of "exemption from punishment" or "reduction of punishment" solely to the defendant's "time of commission," while unjustifiably excluding other defendants who similarly suffer from diminished cognitive capacity at times other than the "time of commission," which also violates the principle of equality under Article 7 of the Constitution:

(1) Referring to the legislative reasons for Article 19 of the Criminal Code:

The terms "insanity" in the original Paragraph 1 and "diminished mental capacity" in Paragraph 2 are both recognized by academic and practical views as equivalent to the concepts of "lack of criminal responsibility" and "diminished criminal responsibility." Circumstances where a perpetrator is unable to recognize the illegality of their conduct or where their cognitive capacity is significantly reduced include, for example, persons with severe intellectual disabilities. They are completely unable or find it difficult to understand that homicidal acts are prohibited by law; circumstances where a perpetrator's capacity to act based on such cognitive capacity of illegality is lacking or significantly reduced include, for example, perpetrators suffering from persecutory delusions. Although they know homicide is impermissible under the law, they are unable or find it difficult to control themselves due to persecutory delusions and thus kill the victim. Therefore, following the German legislative example, the provisions of the original Paragraph 1 and Paragraph 2 have been amended.

As can be seen from the above, the legislative intent of this article is to reduce or exempt perpetrators lacking or having diminished criminal responsibility from criminal liability, with a view to achieving proportionate criminal liability.

(2) However, the scope of application of Article 19 of the Criminal Code is limited to the defendant's lack of cognitive capacity "at the time of commission," and does not extend to defendants lacking overall cognitive capacity resulting in a lack of blameworthiness at times other than the "time of commission." Furthermore, our judicial practice narrowly construes the scope of application of Article 294, Paragraph 1 of the Code of Criminal Procedure, resulting in defendants who similarly suffer from significant cognitive impairment but lack diminished criminal responsibility or limited criminal responsibility bearing different criminal liabilities depending on whether their condition occurred "at the time of commission" or "not at the time of commission." This differential treatment lacks justifiable reasons and runs counter to Article 7 of the Constitution.

11. Criminal procedural rules in death penalty cases still contain numerous provisions running counter to the principle of due process of law under Article 8 of the Constitution and the intent of protecting the right of action under Article 16. The criminal procedural rules and related provisions of our current criminal procedure followed in this petition case are clearly unconstitutional, as elaborated below:

(1) Constrained by the page limits of this Court's Rules of Procedure, the following paragraphs are only a summary. For the full text, please refer to Supplementary Amicus Curiae Brief (I) (Reference to Exhibit 1), pages 6 to 19.

(2) When a criminal defendant is charged with an offense punishable by the death penalty, the right to the assistance of counsel is not guaranteed during either the investigative proceedings or the third-instance proceedings, which violates the principle of due process of law under Article 8 of the Constitution and the intent of protecting the right of action under Article 16.

(1) The psychological pressure generated by investigative proceedings is a sharp tool that collapses a defendant's right to silence. Whether a defendant can fully exercise defense rights centered on the right to silence depends entirely on defense counsel providing substantially effective assistance. Our country guarantees the defendant's right to the assistance of counsel through the mandatory defense system of the Code of Criminal Procedure, supplemented by the legal aid system. However, the protection of this right is manifestly insufficient during investigative proceedings and third-instance proceedings.

(2) Compared to trial proceedings, the defendant's right to the assistance of counsel during investigation should be even more systematically guaranteed. Article 31, Paragraph 1 of the Code of Criminal Procedure excludes mandatory defense during investigation, which violates the principle of due process of law under Article 8 of the Constitution and the intent of protecting the right of action under Article 16.

(3) Article 388 of the Code of Criminal Procedure excludes the application of mandatory defense in third-instance proceedings, ignoring the difficulty defendants unversed in the law face in independently conducting legal-review litigation advocacy and the routine practice of the Supreme Court's third-instance adjudication dismissing appeals on procedural non-compliance grounds (refer to Exhibit 4). Even supplemented by the legal aid system, the explicit and absolute guarantee of the right of defendants charged with serious crimes to the assistance of counsel remains lacking, which also contravenes the intent of Articles 8 and 16 of the Constitution.

(3) Article 282 of the Code of Criminal Procedure fails to guarantee that defendants are interrogated and questioned during investigation under conditions where their physical person is unrestrained, which clearly violates the principle of due process of law set forth in Article 8 of the Constitution and the intent of protecting the right of action under Article 16:

(1) When a person's physical body is fettered, their mind can naturally not be free. Physical restraints on a defendant's body and limbs not only cause physical suppression, but also easily induce psychological states of fear, obedience, and self-abandonment in the defendant, generating a negative impact that collapses the right to silence and affects the voluntariness of statements. This is why Article 282 of the Code of Criminal Procedure explicitly stipulates that a defendant's body shall not be restrained while in court. This is intended to ensure that the defendant consistently maintains the status of a procedural subject throughout trial proceedings, remaining silent based on free will or making voluntary statements and defenses to resist state prosecution, which holds significant meaning for protecting the defendant's defense rights and complying with the privilege against self-incrimination.

(2) However, the aforementioned negative impact of physical restraints on the right to silence is equally present in investigative proceedings. Furthermore, the interrogation environment during investigation exerts immense psychological pressure on the defendant and already carries the danger of collapsing the right to silence. If, in such isolated and hostile environments surrounded by adversaries, the defendant is further subjected to interrogation and questioning while their physical body is restrained, the hazard to the defendant's right to silence is even greater. If physical restraints are deemed impermissible in public trial proceedings before a court, then a fortiori, under the legal principle of extending the lesser to the greater, equivalent procedural guarantees should be afforded in investigative proceedings where the defendant's plight is even more perilous. As for instances where a defendant exhibits aggressive or self-harming behavior, they should naturally not be interrogated or questioned while in such an unstable mental state, thus not raising the issue of restraining the defendant's body prior to interrogation and questioning.

(3) Article 282 of the Code of Criminal Procedure fails to guarantee that defendants are interrogated and questioned during investigation under conditions where their physical person is unrestrained, which clearly violates the principle of due process of law set forth in Article 8 of the Constitution and the intent of protecting the right of action under Article 16.

(4) Confessions cannot exclude the possibility of falsehood. However, provisions such as Article 156, Paragraph 2, Article 159-1, Paragraph 2, and Article 159-2 of our Code of Criminal Procedure enable courts to use unsworn statements made by accomplices during investigation as corroborating evidence for a defendant's confession, thereby allowing the confessions of the defendant and accomplices to serve as primary evidence for pronouncing the death penalty, which also violates principles such as the presumption of innocence and is unconstitutional:

(1) Pursuant to the privilege against self-incrimination and the presumption of innocence, a defendant's confession shall not serve as the primary evidence for establishing criminal facts, nor shall its corroborating evidence be testimonial evidence provided by co-defendants or accomplices. For the statements of the defendant themselves and accomplices can never absolutely exclude the possibility of falsehood. Statements possessing the possibility of falsehood, even when coupled with other statements that are consistent in content but similarly possess the possibility of falsehood as "corroboration," still cannot exclude the possibility of falsehood (wrongful conviction). Therefore, if a defendant's confession "plus" an accomplice's confession, "mutually corroborating," is deemed capable of yielding a conclusion beyond a reasonable doubt, and is used as the primary evidence or even "sole two" pieces of evidence for conviction without the existence of other independently existing evidence sufficient to reconstruct the criminal facts, it is no different from the idiom of "three men make a tiger," violating the presumption of innocence and the principle of in dubio pro reo.

(2) Provisions such as Article 156, Paragraph 2, Article 159-1, Paragraph 2, and Article 159-2 of the Code of Criminal Procedure allow courts, even in cases punishable by the death penalty such as homicide, to use unsworn statements made by accomplices during investigation as corroborating evidence for a defendant's confession during investigation, and further allow confessions of the defendant and accomplices that cannot exclude the possibility of falsehood to serve as primary evidence for pronouncing the death penalty. These provisions amount to hollowing out the statutory evidentiary methods for human testimony, clearly contravening the privilege against self-incrimination and the presumption of innocence, severely undermining the defendant's defense rights, impairing the discovery of the truth, and failing to prevent the occurrence of wrongful death penalty cases.

(3) In summary, these are respectfully submitted for Your Honors' perusal and guidance.

Respectfully to:
The Constitutional Court
April 9, 2024

 

List of Exhibits

Exhibit 1: Supplementary Amicus Curiae Brief (I).
Exhibit 2: Query results from the National Police Agency's Police Statistics Query Network of the Executive Yuan regarding the occurrence of crimes such as intentional homicide, kidnapping, forcible sexual assault, and robbery from 89 to 112 (2000 to 2023).
Exhibit 3: Supplementary Amicus Curiae Brief (II).
Exhibit 4: Conclusion status of criminal appeal cases in the Supreme Court for 2020 and 2021 (categorized by offense).

Filing Organization: Judicial Reform Foundation
Representative: Huang Hsu-t'ien
Agents: Wu Han-sheng, Attorney-at-law
Lu Cheng-yen, Attorney-at-law
Chiao Cheng-hsiang, Attorney-at-law