Is Korea's death penalty unconstitutional?
Whether capital punishment in Korea is unconstitutional is again under review by the Constitutional Court of Korea. Gettyimagesbank
Catholic Bishops Conference of Korea argues Constitution guarantees one's basic right to preservation of life
By Ko Dong-hwan
Earlier this month, the Constitutional Court of Korea began another hearing over what could be the problem left unresolved for the longest time in the country's judiciary history: whether the death penalty, which was written into the Criminal Act of 1953, violates the Constitution.
The latest hearing will be the third time for the Constitutional Court to review the constitutionality of the death penalty. It ruled in favor of maintaining capital punishment twice in previous hearings held in 1996 and 2010.
This time, the case in question concerns a man who murdered his parents in 2018. Prosecutors demanded at the district court trial that the defendant be sentenced to death. He had appealed to the court that the punishment violates the Constitution, but the court dismissed his appeal.
What ended up saving the man's life was the Catholic Bishops' Conference of Korea (CBCK) Committee for Peace and Justice. With his consent, the CBCK requested a hearing at the Constitutional Court in 2019 to claim that the penalty is unconstitutional.
The CBCK provided Articles 10 and 37 of the Constitution in support of their claim: that the Constitution must guarantee one's basic right to the preservation of life, which should be reserved uncompromised; and that laws, though able to limit one's freedoms and rights in order to maintain civil order, must not violate basic human rights.
“The death penalty considers criminals only as a means to keep social order, not as human beings that can express regret and improve themselves,” the CBCK said. “There are no verified effects that it reduces the occurrence of serious crimes. Besides, if it turns out that a court was wrong [in its guilty verdict], an individual who was executed cannot be brought back, which clearly makes the death penalty unethical.”
Prosecutors countered, saying that the public benefit of justice being served through the use of capital punishment cannot be ignored either. They mentioned “retribution” as one of the death penalty's purposes ― which they say accounts for many criminal penalties and is supported by a majority of the public, over rehabilitation of convicted criminals to become better human beings.
The 1996 ruling was in favor of maintaining the death penalty, with seven out of nine of the Constitutional Court judges declaring it constitutional. They said that if a dangerous criminal threatens public order, the country could decide which lives should be protected and which lives should not. They also said that if the penalty is later deemed unnecessary it could be ruled unconstitutional at that point.
An enlisted soldier in Korea identified by the surname Lim, second from left, leaves a military court in Wonju, Gangwon Province, after being sentenced to death in February 2015 for shooting five other soldiers to death and injuring seven others at his camp a year before. Newsis
The death penalty survived court review again in 2010, with five out of nine Constitutional Court judges declaring it constitutional. However, now, based on the rising trend of judges opposing it and the increasing number of countries abolishing it ― with over 70 percent having abolished it in law or practice, according to the Death Penalty Information Center ― there are now expectations that these previous decisions could be overturned.
Even if capital punishment is ruled unconstitutional this time, there are questions about what to do with the convicted individuals who have already been sentenced to death. According to the Constitution, five out of the 59 convicted criminals currently on death row in Korea will be given a chance to appeal if the Constitutional Court ruling is in their favor.
During a public hearing at the Constitutional Court in Seoul's Jongno District on July 14, some supporters of capital punishment worried that, based on the country's current judiciary system, there will no longer be legal measures to keep those five criminals behind bars if their death sentences are deemed unconstitutional. Meanwhile, those against the death penalty allayed such concerns by saying that the five people in question will likely be sentenced to life in prison as an alternative punishment.
The conflicts around the death penalty will likely continue until the judges announce their verdict, which could take weeks, months or even possibly years.
What are its purposes?
Capital punishment and its abolition have been the subject of endless debates around the world for centuries. At first, one of its purposes was retribution ― an eye for an eye ― although the types of crimes for which it was a punishment, as well as how it was applied, varied greatly over the course of history and across societies. The debates took a fresh turn in the late 1700s when Italian jurist Cesare Beccaria condemned capital punishment in his 1767 treatise, “On Crimes and Punishment.” Asserting the value of human life, he argued that there is no justification for the taking of life by the state and that executions are “neither a useful nor a necessary form of punishment.”
“Korea has not carried out an execution since 1997,” a lawyer based in Seongnam, Gyeonggi Province, told The Korea Times on condition of anonymity. “If it hasn't been practiced in more than 20 years, practically speaking, it is considered abolished in that country.”
The lawyer, who is in favor of abolishing the death penalty, cited that more and more countries around the world are abolishing the punishment. Since 1976, more than 75 countries have abolished it for all crimes, according to the Death Penalty Information Center, a nonprofit based in Washington, D.C.
In 2014, after the Daegu District Court sentenced a woman who beat her stepdaughter to death to 10 years in prison in Chilgok County, North Gyeongsang Province, protesters gathered in front of the court to demand the court sentence her to death. Newsis
“Of course, there are exceptions, like some states in the United States, where the death penalty was abolished and then revived. Those are cases where the previous judiciary setting couldn't withstand the extreme seriousness of certain crimes,” the lawyer said. “But even if we were to preserve the death penalty, its deterrence effect has proven not to be effective according to certain countries that compared serious crime rates before and after they abolished it, where they found not much of a difference. Besides, we could replace capital punishment with life in prison without parole, which could be as painful as the death penalty.”
Besides retribution, another purpose of criminal penalties ― including the death penalty ― is to prevent others from committing the same crime by warning the public, by showing them the severity of the punishment. On the other hand, other experts believe the corrections system must instead reform criminals and return them to society as better human beings.
“Most members of the public in Korea support the fact that those who commit serious crimes should suffer retributive punishment, not that the criminals should be educated using the country's tax money to assimilate into society again. But that is on the same page with the talion principle from the Code of Hammurabi (of 1755-50 B.C., in which criminals must be punished with precisely the same injury they inflicted),” the lawyer said. “But times have changed since then, and as studies have proven the ineffectiveness of capital punishment as well as alternative punishments, I think it is okay to let it go now.”
Kwon Oh-geol, a professor at Kyungpook National University Law School in Daegu, however, argued that one of the most important things about carrying out criminal punishment is “instilling justice” in the public by getting through to them the entire process of doling out punishment. Citing his excerpt published in 2017 that studied the death penalty, he said that criminal punishments exist to make criminals understand that their lives can be violated as well.
“Justice can only be achieved when members of the public confirm that proper punishment has been dealt to criminals,” Kwon told The Korea Times. “As for the death penalty, its external effect is alerting the public with a warning, whereas its internal effect is making potential criminals understand that not only their lives but those of other innocent people are important as well. Knowing that the death penalty exists, whether consciously or unconsciously, is the foremost condition to protect human lives. So I think the penalty must be preserved at present.”