By: Lorenzo Garcia
Edited By: maggie farina and shiny han
1. Introduction
A ban on the death penalty has been decisively codified into law in 108 countries. In the rest of the world, 55 countries remain retentionist, like the U.S., and 28 are abolitionist in practice but not by legal mandate, like South Korea. In both categories, the debate is in a constant, confusing state of flux. What is it about these countries that curses them with an inability to resolve the matter of capital punishment? Their respective constitutions may give us some clues. This article will focus on the constitutions of the U.S. and South Korea.
2. Due Process and the Death Penalty in the U.S.
Is capital punishment a constitutionally acceptable means of punishment? Does the text of a given country’s constitution even matter if there is enough consensus that the very idea of capital punishment is morally reprehensible? Although answering such questions requires a delicate review of the law and judicial precedent, it is common to find politicians seeking to fan the flames of an impassioned populace in order to gain votes, rather than voicing constitutionally-informed opinions.
There appears to be a disconnect between the American popular discourse, which focuses on the morality of capital punishment, and the legal discourse, which focuses on whether capital punishment violates due process protected by the Constitution. The popular discourse is largely driven by the political atmosphere. For instance, American conservatives who typically advocate for the death penalty often imply that liberals are spineless, pro-crime, terrorist sympathizers. This is exemplified in Republican Sen. Tom Cotton’s words, “The Biden administration should stand strong in favor of capital punishment for [Tsarnaev, a capital offender], and justice should be done” (Fritze, 2021). On the legal side, the Fourteenth Amendment states, “No State shall… deprive any person of life, liberty, or property, without due process of law” (U.S. Const. art. XIV, § 1). Indeed, due process is at the heart of the latest case on the SCOTUS docket, U.S. v. Tsarnaev, colloquially known as the Boston Marathon bomber case. Dzhokhar Tsarnaev, the planner and perpetrator of the bombing, was found guilty of all seventeen death penalty charges against him and received the death sentence in 2015. However, in 2020 this sentence was overturned by the U.S. Court of Appeals for the 1st Circuit on the grounds that the jury was exposed to bias from pretrial coverage, which violated Tsarnaev’s right to due process (News Desk, 2015). Interestingly, this case is an anomaly to the extent that conservatives are invoking due process to execute the convict, as opposed to the usual case of liberals invoking due process to prevent the execution. Hence, while the application or lack thereof of due process is similarly inconsistent between the two parties, the stance for and against it is thoroughly partisan.
Another due process debate took the form of assessing the cruelty of arbitrariness and delays in carrying out the death sentence in the 5-4 Glossip v. Gross Supreme Court decision. Cruelty here refers to the cruelty resulting from due process errors, not the cruelty of executing a criminal. This debate derives from the intersection of the Eighth Amendment and the aforementioned Fourteenth Amendment. The Eighth Amendment reads, “cruel and unusual punishments [shall not be] inflicted” (U.S. Const. art. VIII). Though not explicitly expressed as a “right to” something, this provision is just short of an enumerated fundamental right. Fundamental rights, by definition, cannot be taken away from any U.S. citizens, while regular rights can be stripped from criminals when they commit the crime. Accordingly, since government-inflicted punishment implies a criminal as its object, the fundamental right to protection from cruel and unusual punishment cannot be stripped from any criminal.
On arbitrariness the concurring Justice Antonin Scalia, one of the Roberts Court’s strongest constitutional originalists, opined, “the fact that some defendants receive mercy from their jury no more renders the underlying punishment ‘cruel’ than does the fact that some guilty individuals are never apprehended” (Glossip v. Gross, 2015: p. 4). Justice Stephen Breyer stressed that the death penalty is not administered with any semblance of “reasonable consistency,” and that the judicial precedent set in 1976 acknowledged that the death penalty is unconstitutional if “inflicted in an arbitrary and capricious manner” (Glossip v. Gross, 2015: pp. 9-10). In sum, capital punishment proponents emphasize that sentencing mistakes go both ways and are unavoidable. Therefore, therefore the burden is on the defendant to gather sufficient evidence to prove innocence. Opponents retort that the penalty is so randomly administered that it, as a whole, undermines the due process clause. Similarly, on delays, Scalia wrote “delay is a problem of the Court’s own making” (Glossip v. Gross, 2015: p. 5). However, Breyer wrote about how the dehumanizing conditions on death row awaiting a delayed execution are not only cruel but also undermine the legal process because “many inmates volunteer to be executed, abandoning further appeals” (Glossip v. Gross, 2015: p. 22). This follows a familiar pattern. The former perspective emanates optimism – it sees no essential discrepancy between due process and the systemic process of sentencing someone to death and views errors as rare and the fault of individual mistakes rather than the system as a whole. The latter insists on the contrary – not only can no amount of careful precision prevent fatal mistakes from occurring, but the death penalty is administered based on very arbitrary factors including “race, gender, local geography, and resources” rather than the severity of the crime, (Glossip v. Gross, 2015: p. 22). This viewpoint reveals the inability of the justices, judges, and juries to decide something as precious and irrevocable as a person’s life because it is impossible to claim with absolute certainty that someone is guilty with all the relevant evidence presented to the court during the sentencing.
3. A moral dilemma: Right to life in South Korea?
The ongoing constitutional debates on capital punishment in South Korea is the antithesis to the present-day U.S. judicial approach of overlooking morality. Instead of asking, “is the death sentence fundamentally compatible with due process?” Korea asks a far different question: is life a fundamental right? The Korean constitution gives no easy answers. Article 10 contains the only mention of a fundamental right in the document: “All citizens shall be assured of human worth and dignity and have the right to pursue happiness. It shall be the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals” (Korean Const. Art. 10). The latter sentence, in its brevity, fails to name which rights in the Constitution are classified as fundamental with the notable yet still amply vague exception of human rights. Former President Kim Dae-Jung, a devoted abolitionist and death row survivor, argued that human rights are supremely fundamental. He cited the UN international human rights standard – which recognizes the right to life as an inherent human right (UN, n.d.) – since human rights are themselves explicitly fundamental rights that the government must guarantee as per Article 10. His reasoning suggests that the death penalty violates not only the fundamental, constitutionally explicit human rights but also an implied right to life His abolitionist movement has gained marked influence in the executive and legislative branches of government over the last several decades (Bae, 2009: p. 417).
The judicial branch tells a different story. The latest Supreme Court case on capital punishment, known as 2008Hun-Ka23-1, ruled 5-4 in favor of the death penalty on February 25, 2010. In this case, concurring Justices combined a variety of approaches citing several constitutional provisions to argue for the legality of the death penalty. One piece of the argument was that the offense adheres to the principle of proportionality in Article 37, because there is such thing as criminal offenses so heinous that they are proportionally equivalent to the death penalty. The court decision states, “the death penalty is an unavoidable choice for the State; it has to deprive the life of person who committed a cruel crime in order to secure the public interests in protecting innocent people’s lives and other equivalently important values” (2008Hun-Ka23-1: p. 15). This argument hinges on the fact that the right to human dignity and worth provided by Article 10 is a zero-sum game – whereby providing it to someone requires taking it away from someone else. Not only is the right not fundamental but there is also neither constitutional provision nor judicial precedent that guarantees an absolute right to life. Concurring judges employed a supplemental fact from Article 110 section 4: “military trials under an extraordinary martial law may not be appealed in case of crimes of soldiers and employees of the military… except in the case of a death sentence” (Korean Const. art. CX). According to the concurring judges, the explicit mention of the death sentence here renders it a constitutional norm, and therefore a viable penalty option for criminals. Following this logic, to assert that this norm excludes non-military trials without any basis in the Constitution, legislative acts, or prior rulings would undermine the legal system through gross judicial overreach (2008Hun-Ka23-1: p. 21).
Like the U.S., South Korea has never officially resolved its constitutional question. The right to life remains in a vague, Schrodinger’s Cat-esque limbo of simultaneously existing and not existing in the eyes of the law. However, as it stands, Korea is known as a “de facto” abolitionist country. This began when Dae-Jung enacted an unofficial moratorium on executions in 1998, the year he was elected. No executions have occurred since, yet 63 remained on death row as of 2008 (Cho, 2008: p. 183). Moreover, Korea also contains the same political dynamic at play as the U.S., in which the conservative opposition party (the People Power Party) exploits public disgust at capital offenders to appear stronger and more concerned with retributive justice than their liberal counterparts. For instance, alluding to an alleged capital offender, People Power Party Rep. Hong Joon-pyo declared, “If I'm elected president, I will put serious criminals like him to death” (Seung-woo, 2021). This quote bears an uncanny resemblance to the Tom Cotton remark. However, similarities between the two countries end here.
The prior analyses of the U.S. and South Korea reveal a surprising difference between the two countries. Namely, constitutional rights cited by South Koreans in the controversy do not overlap with the constitutional rights cited by Americans. The U.S. debate revolves around guaranteeing the procedural right to due process of law in the form of fair/impartial juries, non-arbitrary sentencing, and timely executions to even the most heinous criminals. In contrast, the Korean debate revolves around the right to life and the moral quandaries surrounding executing those supposedly less deserving of life to uphold society’s security and values. This results in drastic differences in the perception of the criminal. Both proponents and opponents of the death penalty in the U.S. see the capital offender as stripped of most basic rights but still deserving of the fundamental rights like due process. There is no such common ground in Korea – based on one’s personal values, one either believes that capital offenders deserve to die or don’t deserve to die, largely informing their stance on whether or not life is a fundamental right.
Shifting our focus to the trajectory of capital punishment, the structure of each Constitution lends itself to two starkly different future paths. The U.S. Constitution is quite well-equipped to handle a controversy as heavy as capital punishment because the issue most directly implicates a right that is, as stated previously, agreed upon by both sides. This shared understanding of a goal ensures due process and is crucial in the sense that proponents and opponents are constantly vying to see whose approach, backed by a range of selected constitutional provisions, laws, empirical data, and past rulings, is most effective in achieving the same goal. Thus, the debate is highly competitive, as each stance has an equal shot of gaining influence because neither argument can decisively be said to be wrong based on the provisions of the Constitution – it is more a question of better or worse in the aggregate. Neither party bothers asking if any crime makes someone deserving of death, resigning itself to the impossibility of answering that through even the most meticulous inspection of the Constitution.
The same cannot be said about South Korea. While the U.S. Constitution omits concepts like “human worth and dignity” and “human rights,” the Korean Constitution lists both. In effect, this bridges the treacherous gap between morality and Constitutional analysis, which are tricky to reconcile with one another. In particular, in the absence of due process as an enumerated fundamental right, abolitionists like Dae-Jung must transcend the Constitution into the external territory of, say, UN international human rights standards to prove an implied fundamental right to life and subsequently make a constitutional case against the death penalty. This argument is far less compelling because it is not directly constitutional and therefore an easy target for Korean retentionists, who cite the provision for human dignity and worth for society as a duty that the Constitution aims to protect over a criminal’s right to human dignity and worth.
However, the inclusion of the death sentence as a punishment in Article 110 turns a valid abolitionist argument from a daunting task to an impossible one. Because of this minute technicality, there is no way the existing Korean Constitution can ever allow for the abolition of capital punishment. A relic of the time when this Constitution was written, this technicality reflects a norm in criminal sentencing that drafters did not anticipate would require flexibility and second thoughts. Thus, unless these two words are amended out from the Constitution, the best case scenario for Korean abolitionists is maintaining its de facto status rather than formal abolition.
4. Conclusion
Keeping the Korean abolitionist stalemate in mind, the U.S. justice system should continue to thoroughly take advantage of the durability of its Constitution, and how the document promotes creative, objective approaches to arguing “mega-politics” topics such as capital punishment. Because the U.S. Constitution has this characteristic, it not only has more room for either side to prevail feasibly, but it also allows the advocates of either side to further experiment with their approaches without undermining the document or the system as a whole. It may even be productive to dabble with Korea’s approach of morality and deliberation of a “right to life” by blending this approach with its main substantive due process approach during constitutional interpretation, as doing so would echo modern social shifts toward the application of humanist approaches in traditionally “unfeeling” professional fields.
BIBLIOGRAPHY:
2008hun-KA23-1 (2010) Capital Punishment February 25, 2010 ... Global Health Rights. (2010). Retrieved December 8, 2021, from https://www.globalhealthrights.org/wp-content/uploads/2018/03/2008Hun.pdf.
Bae, S. (2009). South Korea's de facto abolition of the death penalty. Pacific Affairs, 82(3), 407–425. https://doi.org/10.5509/2009823407
Cho, B.-S. (2008). South Korea's Changing Capital Punishment Policy. Punishment & Society, 10(2), 171–205. https://doi.org/10.1177/1462474507087198
Constitutionality of the death penalty in America. Death Penalty Information Center. (n.d.). Retrieved December 8, 2021, from https://deathpenaltyinfo.org/facts-and-research/history-of-the-death-penalty/constitutionality-of-the-death-penalty-in-america.
Fritze, J. (2021, March 22). Supreme Court agrees to hear death penalty case against Boston Marathon Bomber Dzhokhar Tsarnaev. USA Today. Retrieved December 8, 2021, from https://www.usatoday.com/story/news/politics/2021/03/22/supreme-court-takes-case-boston-marathon-bomber-dzhokhar-tsarnaev/4339396001/.
Hirschl, R. (2008). The judicialization of mega-politics and the rise of political courts. Annual Review of Political Science, 11(1), 93–118. https://doi.org/10.1146/ annurev.polisci.11.053006.183906
Korea (republic of)'s constitution of 1948 with amendments ... (n.d.). Retrieved December 5, 2021, from https://www.constituteproject.org/constitution/Republic_of_Korea_1987.pdf?lang=en.
News Desk. (2015, April 8). Dzhokhar Tsarnaev found guilty on all 30 charges for role in Boston bombing. PBS. Retrieved December 8, 2021, from https://www.pbs.org/newshour/nation/jury-reaches-verdict-boston-bombing-trial.
Seung-woo, K. (2021, September 2). Horrific crimes reignite debate over death penalty. The Korea Times. Retrieved December 7, 2021, from https://www.koreatimes.co.kr/www/nation/2021/09/251_314858.html/.
Supreme Court of the United States. (2015). Retrieved December 8, 2021, from https://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf.
United Nations. (n.d.). Human rights. United Nations. Retrieved December 5, 2021, from https://www.un.org/en/global-issues/human-rights.
United States of America 1789 (rev. 1992) constitution. Constitute. (n.d.). Retrieved December 8, 2021, from https://www.constituteproject.org/constitution/United_States_of_America_1992?lang=en.
