Last Thursday, the Constitutional Court kicked off open hearings on the constitutionality of the death penalty, which is stated in law but has not been carried out for over two decades here.

The country currently has 59 men on death row, but the last time anyone was executed was Dec.30, 1997, when 23 were hanged.

Categorized as “abolitionist in practice” by Amnesty International, South Korea has made its stance clear, casting its vote in favor of the resolution for a moratorium on the use of the death penalty during the 75th session of the United Nations General Assembly in 2020.

But public sentiment is different, to say the least.

Capital punishment continues to have more supporters than opponents in public opinion surveys, and there are a growing number of calls for resumption of executions.


Legal interpretation of capital punishment


The Constitutional Court’s review, its third on the death penalty, comes after a petition was filed in 2019 by a man convicted of killing his parents. Prosecutors demanded that the man be sentenced to death, while he asked the top court to review whether it was just for a state to deprive an individual’s most fundamental right to live. He was eventually sentenced to a life sentence.

The status of capital punishment in constitutional law has long been challenged, encompassing the issue of basic human rights, punitive justice, and the question of exactly how, or if indeed, the existence of capital punishment is helpful in maintaining order in society.

In its two previous reviews of the death penalty in 1996 and 2010, the Constitutional Court reached a 7-2 and 5-4 decision, respectively, each in favor of it being constitutional. For the death penalty to be deemed unconstitutional, it needs a say-so from at least six of the nine judges.

The death penalty is stated as the most severe form of punishment by the Criminal Act, with Article 66 stipulating that “the death penalty shall be executed by hanging at a prison.”

The Constitution does not mention whether the death penalty is necessary, but acknowledges its existence in clause 4 of Article 110, which states: “Military trials under extraordinary martial law may not be appealed … except in the case of a death sentence.”

This brief mention has been the subject of fierce debate between proponents and opponents of the death penalty.

Chang Young-soo, professor of constitutional law at Korea University who is in favor of retaining capital punishment, claims that the aforementioned clause indicates the death penalty is constitutional.

“This clause indirectly shows that the death penalty is not forbidden, and is allowed in accordance to the Constitution, which was one of the key reasons it was ruled constitutional in the 2010 ruling,” he said during a media interview on Wednesday. He pointed out that the death penalty debate is twofold: whether it is constitutional, and whether it should be removed from the Criminal Act.

“Potential abolishment (of the death penalty) is also linked to clause 4 of Article 110, since it states that the death penalty is possible, but not that its existence is essential. As such, abolishing the death penalty via the legislative procedure of revising the Criminal Act would not be unconstitutional.”

Like many other legal clauses, however, the controversial clause is open to interpretation.

Kim Dae-geun, a senior researcher at the state-run Korea Institute of Criminology and Justice, said just because the death penalty is mentioned in the Constitution, does not mean it is permitted or encouraged.

“Clause 4 of Article 110 is made to prevent the unconstitutional nature of handing out a death penalty without an appeal process in military trials under martial law. In other words, it is a clause that is to prepare for a potentially unconstitutional reality (under martial law), and cannot be used as justification (for the death penalty),” he said during another media interview.

The scholar pointed to the Article 12 of the Constitution which says no confessions obtained via torture or physical violence can be presented in the court, saying that just because certain actions are mentioned, it does not mean the said means are permitted.


Should we have a death penalty?


As Professor Chang mentioned, even if capital punishment is ruled constitutional, the legislature could just revise the Criminal Act to abolish it. But should it?

Proponents say the country should keep it as it is, regardless of actual executions not being carried out, because the very existence of a death sentence could help deter violent crimes like homicide.

But as of now, studies across the world on this issue have mostly been inconclusive, with no definitive proof on the death penalty’s deterrence effect. Some have even negated the supposition.

There has also not yet been substantial domestic research on the effectiveness of the death penalty’s ability to deter crimes. Professor Ko Hak-soo of the Seoul National University law school, who was invited as a consultant by the Constitutional Court regarding the case on death penalty this year, said in his report that there is not enough data or analysis to prove if the death penalty can reduce violent crimes or not. 

In a 2009 issue of the journal Criminology & Public Policy, a research article “Does the death penalty save lives” analyzed data from 1977 to 2006, and said it did not find substantial deterrent effect of the death penalty.

“In sum, for the DP (death penalty) to serve as a deterrent to homicide, potential offenders need at least to consider the possibility that they may be caught and that the probability of this occurring is greater than any benefit they may receive, whether monetary or psychologically, for killing someone,” the researchers wrote. They pointed out that criminology research on offenders’ decision-making processes contradicts the notion that criminals spend much time considering deleterious consequences of their actions.

Despite the lack of evidence on the death penalty’s deterrence effect, punitive justice is a strong factor for those who support the death penalty. Many Koreans believe in retaining capital punishment on the grounds that serial killers, vicious pedophiles and others convicted of the most atrocious crimes deserve death.

A 2018 poll by the National Human Rights Commission showed that there were more Koreans who were for the death penalty than against it. The survey on 1,000 people aged 20 or more across the country showed that roughly eight out of 10 people said the country should retain it, compared to 65.9 percent in 2003, showing an increase in the number of Koreans who support it.

Also, there has been a trend of public support for executions spiking following despicable crimes being committed. In 2021, when a 30-year-old man was arrested for raping and killing his 20-month-old adoptive daughter, then-presidential candidate Hong Joon-pyo shared the news on his Facebook page, adding people like this would be executed if he was elected president. The criminal was eventually given a life sentence.

Unlike Hong, who is well known as a firebrand, no prominent politician has ever challenged the country’s “abortionist in practice” status.

History is a key to understanding how South Korea’s policymakers and a majority of politicians have come to form their attitudes toward the death penalty.

Throughout Korea’s turbulent history, from Japanese colonization to military dictatorships, capital punishment had been used by those in power as a tool to silence freedom fighters and dissidents.

The late President Kim Dae-jung was once a death row prisoner charged with treason and insurrection. He was a prominent pro-democracy politician under military regimes led by Park Chung-hee and Chun Doo-hwan. While in office, Kim did not authorize a single execution. This has been carried on by his successors up to now.

In 2007, eight pro-democracy activists were declared not guilty in a retrial. This comes more than three decades after they were executed for trying to build Inhyeokdang, or the People‘s Revolutionary Party, in a plot to turn South Korea into a communist state. 


By Yoon Min-sik
(minsikyoon@heraldcorp.com)