The Peninsula

The Past, Present, and Future of Capital Punishment in South Korea

By Liberty Smith

Calls to abolish the death penalty in South Korea are making headlines once again. The National Human Rights Commission of Korea (NHRCK) has formally called for the nation to join the coalition of OECD states in outlawing state-sanctioned executions. The government-mandated organization is working in conjunction with the Moon Jae-In administration to announce its official stance as the next U.N. session addressing the issue in December draws near. The watchdog organization has made similar calls in the past, first in 2005 when it made its case to the National Assembly. It renewed its appeal to the Supreme Court in 2009 at the start of conservative President Lee Myun-Bak’s term. Now the Ministry of Justice, an arm of the Moon administration, is conducting talks with the group to formulate a plan of action.

Experts on the death penalty and its effectiveness have predominantly declined to support commonly held conceptions. Deterrence is the most frequently cited argument in support of capital punishment by legislators and voters alike. However, most recent studies conducted in territories that have adopted and implemented abolition found that it has little to no effect on deterrence for premeditated crimes. (in the US, In AU) What little impact that can be classified is made inoperative by the subset of cases wrongfully decided. Proponents of the retributive standpoint emphasize the value for the punitive aspect of the penalty. Although, recent findings have suggested life without parole has a significantly higher psychological impact on offenders in the aggregate. Other studies have found that victims and their loved-ones rarely experience the closure that’s expected after an execution and many explicitly said it brought no healing whatsoever. Instead, it was life without parole that brought about a faster rate and likelihood of moving on. Despite insurmountable evidence to the contrary, public support of capital punishment persists abroad and in Korea.

Korea is one of four OECD states that have not ratified prohibition of capital punishment. Although the punishment remains popular among its citizens, executions have been suspended for over 20 years. De facto abolition began as the ROK’s reputation as a legitimate democracy had just begun to surface in the international community with the peaceful transfer of power to opposition leader Kim Dae-Jung. President Kim consolidated human rights efforts by creating the NHRCK and directing his Ministry of Justice to place an injunction for those on death row. This policy has been in place ever since. Kim and his successor, Roh Moo-Hyun, largely treated the issue as a damaging feature of past authoritarian regimes. The last executions were performed under the regime of Kim Young-Sam when 23 convicts were hanged in one day. Kim and Roh saw the shedding of the practice as a symbol of a mature democracy. Other nations, like Poland and Bulgaria, with violent pasts saw abolition as an essential prerequisite of a truly representative government. The executive decree has largely been uncontested. The real hurdles to official implementation lie in the National Assembly.

Bills ratifying abolition have been introduced three separate times under the Kim and Roh administrations. Each failed to pass through the Legislative and Judiciary Committee. Proponent legislators repeatedly stress the importance of abolishment as a growing global norm. Representative Chyung Dai-Chul in 2001 announced it was time to join the hundreds of nations in the coalition. In 2004, Representative Yoo Ihn-Tae declared each step made in the field of human rights narrowed the gap between the nation and the world’s leaders. To complicate the development further, abolishment has not been a controversial issue that deeply divides members by party. Among Korea’s districts, the issue is highly fragmented by age, religion, and income demographics. Overwhelming legislative consensus for the bill will remain unseen as long as the weight of opinion clouds over the National Assembly. This factor has likely contributed to state executives making emboldened, albeit unpopular, decisions towards abolition. Korea lacks significant institutional support to create traction for the movement. The nation’s courts has produced little unanimity in the death penalty’s constitutionality.

The only decision the Constitutional Court overwhelmingly supported came in 1996 with a 7 to 2 ruling that established capital punishment is a legitimate government power. Though it had protected death row, the Court made a key distinction.  It limited the conditions to which it could be applied only to “exceptional circumstances.” State-sanction execution became applicable only when it would result in protection for the lives of others or served a public interest. Though it would seem the Court had significantly narrowed its application, a tremendous door remained open. Crime deterrence was explicitly listed in the ruling as a worthy state interest. Despite its dominating message, the opinion left open the possibility of future reform by stating that its constitutionality should be a point of constant debate and, if deemed necessary, its abolishment. Notably, the protection of capital punishment did not bring more convictions and executions to rise. Judges since then have shown a growing reluctance to resort to the penalty. After only two years, the injunction was imposed to suspend executions for the foreseeable future. In 2006, a man on death row for rape and murder of a middle-school girl had his death sentence retracted by a court that found the penalty too harsh despite public outrage. That decision determined that a sentence to death for a crime of passion did not rise to a public interest or the protection of life. This is congruent with a global argument for abolition: public opinion must never wholly impact life and death decisions. In an about-face, the Court, in 2010, suggested any change of policy should be pursued in the legislative arena rather than by the courts.

Against the backdrop of an economic downturn and concern over inter-Korean diplomacy, President Moon must grapple with the opportunity cost of announcing support for an unpopular policy during a low point in his approval ratings. President Moon and UN Representative Kim Tae-Yul can press for abolition, enter into treaties, and maintain injunctions, but only a change in domestic law or the constitution can bring the lasting change the NHRCK is seeking. NGOs, IGOs, and other actors involved in the movement must strategize around the considerable hurdle of public perception. Barring a major large-scale concerted effort through the media, activism, and education, traction for the movement will be incremental and slow. Activists must show caution in framing abolition. Turning it into a controversial political spectacle could sabotage efforts. And could even have the unintended consequence of upending progress thus far. Movements with steeper divides have been known to stagnate mobilization in any direction. The campaign must target a broad audience; it must capture, bolster, and mobilize the sympathizers without alienating opposition. This is no simple task.

Liberty Smith is currently an Intern at the Korea Economic Institute of America. The views expressed here are the author’s alone.

Photo from the Republic of Korea’s photostream on flickr Creative Commons.