Sidelights | The Key Has Been Turned, Where Does the Door Lead? The Path of Death Penalty Reform After Constitutional Interpretation No. 8 of 2024

Fact-Checking Regarding Death Row Inmates

Among the 37 death row inmates whose sentences have been finalized, only two cases involved multiple fatalities, both of which were arson cases. In the majority of other cases, there was a single victim. Among the 22 death penalty cases, there were co-defendants, some of whom received death sentences while others received life imprisonment. An analysis of the background of death row inmates shows that the majority are first-time offenders, rather than individuals with prior homicide records. A portion of them have records of violent crimes. Some had records of entering reformatory institutions during their juvenile years, which may have contributed to their reoffending. Regarding the socio-economic background of death row inmates, 65% have an educational attainment of junior high school or below, and only one is a university graduate. Twelve individuals have been assessed through psychiatric evaluations as having mental disabilities or intellectual impairments, and one-third committed their crimes before the age of 25. There are also wrongful convictions among death row cases, such as that of Chiou Ho-shun (who was detained for 36 years).

Regarding the factual backgrounds of death row inmates, many grew up in dysfunctional families lacking adequate support, facing neglect and domestic violence. Some inmates had family members with criminal records, potentially leading them to enter the path of crime through environmental influence. Furthermore, such dysfunctional families may have caused these individuals to experience corporal punishment or bullying by teachers at school, resulting in running away from home and truancy. Many entered society at a very early age, and some even entered the juvenile correction system. After entering society, due to a lack of educational credentials and professional skills, they struggled to find stable employment.

For ex-inmates with prior criminal records, their status as "rehabilitated persons" upon leaving correctional institutions presents a tremendous challenge in integrating into society. Because they often need to report regularly to local police officers, they are frequently limited to precarious temporary jobs such as part-time work, making the road to reintegration into society arduous.

Is Constitutional Interpretation No. 8 of 2024 a De Facto Abolition of the Death Penalty?

Following the judgment, the death penalty continues to exist because the Constitutional Court held it to be constitutional; the courts still hand down death sentences and the possibility of receiving a death sentence remains. Specific cases facing requests for the death penalty following Constitutional Interpretation No. 8 include the Kaohsiung noise homicide case and the Kaohsiung serial homicide case, while cases where the death penalty was actually adjudicated include the Chang Jung Christian University female student homicide case, the first-instance judgment of the Kaohsiung noise homicide case, and the Huang Lin-kai homicide case. Judging from the statutory provisions and subsequent developments, it cannot be concluded as a de facto abolitionist judgment.

What is the Content of Constitutional Interpretation No. 8?

The judgment states: "The intentional homicide crimes punished under provisions such as homicide, aggravated homicide, robbery-homicide, and kidnapping-homicide constitute the most serious categories of crimes violating the right to life. Among these, the portion stipulating the death penalty as the maximum principal punishment may only be applied to cases where the circumstances of the offense are the most serious, and where the criminal procedure complies with the strictest due process requirements demanded by the Constitution. Within this scope, it is not inconsistent with the intent of the Constitution to protect the people's right to life."

The key points can be summarized as follows: the death penalty is constitutional, and the "maximum penalty" must meet the "three mosts": first, the most serious category of crime, which will be discussed based on criminal motive, methods, impact, etc., including the use of large-scale weapons, planned serial killings, and causing multiple deaths; second, the most serious circumstances in the individual case; and third, the strictest due process, such as the requirement for defense counsel once entering the judicial procedure—a point discussed at length in the judgment.

Execution of the Death Penalty

Regarding the execution workflow, according to an investigation by the Control Yuan, the execution of the death penalty must be decided through a meeting, though this is not conducted on a regular schedule and executions may take place when deemed necessary. The case must first be reviewed by the Supreme Prosecutor's Office, sent to the Department of Prosecutorial Affairs to review the files, then evaluated by the Minister, and finally approved by the Minister. The Chief Prosecutor is notified on the morning of the execution, and Supreme Prosecutor's Office prosecutors only find out whose execution it is upon reviewing the files, usually notifying the prisons and detention centers on the same day. There is no checklist for file review; the executing prosecutor simply reviews the judgment of the final court of fact and the Supreme Court's judgment dismissing the appeal.

Meanwhile, the physical and mental state of a death row inmate is only known if there is a special remark, and information regarding their conditions inside the detention center or physical health is otherwise unavailable. Prosecutors do not know how the review panel selects the person to be executed; sometimes it depends on the number of victims, and other times on chronological order. Prosecutors only review the procedural aspects of the files. As for bailiffs, voluntary executioners are rare, and many take leave on Fridays to avoid the execution. There is also no psychological counseling provided after the execution.

The Regulations for Executing the Death Penalty were amended in April 2025. In earlier years, there were only the Guidelines for the Execution of Capital Punishment, which were internal regulations; the formal Regulations only emerged following legislative amendments. The Guidelines originated from the "Chou Hsun-shan Case," where the defense attorney received the judgment only after the client had already been executed. Such a scenario now seems unimaginable. Civil society organizations protested the extreme procedural carelessness and negligence involved, especially since the case was initially deemed to potentially involve a miscarriage of justice yet was still handled crudely, which subsequently led to the creation of the execution guidelines.

Following the amendment of the Regulations for Executing the Death Penalty, an execution can only be halted if the Prosecutor-General files an extraordinary appeal, the retrial court rules to suspend execution, the Constitutional Court issues a provisional measure, or the President grants a pardon. However, doubts remain regarding these provisions, as gaps persist between these rules and reality. Obtaining a provisional measure is extremely difficult, making compliance and execution challenging.

Many wrongful death penalty cases require years of petitions and efforts before extraordinary relief can be granted—such as the cases of Hsu Tzu-chiang, Cheng Hsing-tse, and Hsieh Chih-hung—making a retrial possible. Taking the Hsieh Chih-hung case as an example, it took eight years from the finalization of the judgment to the final determination of innocence. During this period, the individual was subject to execution at any time. Under the revised regulations, a person might be executed before the relief procedure is fully completed, which does not align with reality. This should be re-evaluated, as both individual case perspectives and legal dimensions reveal profound problems.

Unanimous Decision for Death Sentences

Death sentences require the consent of all judges, known as a "unanimous decision." This is primarily to prevent arbitrariness and wrongful convictions. The same case adjudicated by different judges may yield different results, and the death penalty is ultimately different from other criminal penalties; the occurrence of wrongful convictions should be avoided as much as possible, and sentencing should be appropriate. For example, the United States also requires a "unanimous decision" by the jury in capital cases.

How to View Constitutional Interpretation No. 8 of 2024?

The speaker suggests that from the perspective of its argumentative framework, arguments claiming the unconstitutionality of the death penalty are based on the protection of the right to life, while another view frames it as the relative protection of the right to life. The judgment adopted the relative protection approach, meaning that under certain circumstances, this right can be deprived. From the perspective of human dignity, different societies have varying perceptions of which punishments are cruel and which infringe upon human dignity, yet the judgment failed to discuss this. Throughout its reasoning, the judgment repeatedly emphasizes that the death penalty exists while establishing that the imposition of death sentences should be avoided because the death penalty differs from other criminal penalties.

The speaker believes that the interpretation and application of law is a manifestation of values, and research from Academia Sinica still indicates that the problem of arbitrariness in death sentencing cannot be eliminated. The U.S. Supreme Court previously ruled the death penalty unconstitutional on the grounds that procedural laws at the time were flawed; following legal reforms, federal courts in the U.S. deemed it constitutional, holding that the reforms could prevent arbitrariness. However, subsequent commentaries suggest that the outcomes showed legal reforms failed to prevent arbitrariness.

Are there operational spaces within current cases? Currently, providing opportunities for extraordinary appeals is, to a certain extent, a determination based on individual cases. The majority opinion holds that these cases should be re-examined against the standards listed in the constitutional judgment to determine whether they meet those standards, giving litigants another chance.

Future efforts should focus on localized arguments regarding the death penalty, discussing matters such as wrongful convictions, the unique circumstances of cases, the costs of the death penalty, and the upbringing of death row inmates. Following rulings by the U.S. Supreme Court, statistics were compiled regarding capital cases; perhaps Taiwan can also explore more along this direction.