The death penalty is debated between those who believe it is necessary to deter criminals and maintain social order, and those who believe it should be abolished from a human rights and right to life perspective. South Korea is a de facto abolitionist country, but it still has the death penalty as the maximum legal punishment. The possibility of wrongful convictions and cases of abuse in dictatorships are grounds for opposition to the death penalty, but the majority of South Koreans believe it is necessary to deter serious and heinous crimes.
It is often said that “law is the minimum of morality. This is interpreted to mean that among the many moral norms, the law, especially criminal law, is the one that must be upheld through force. As such, laws are essential for maintaining society. However, the specific laws of each society, or country, are different, which is a natural phenomenon that stems from the differences in the circumstances of each country and the people who legislate. Nevertheless, there is one law that continues to be controversial in many countries: the death penalty.
In South Korea, the death penalty is recognized as one of the legal punishments. Article 41 of the Penal Code states that the death penalty can be imposed as a statutory maximum sentence for certain serious crimes, including murder. According to Amnesty International’s annual report released in March 2011, the death penalty is authorized by law and sentences are issued, but there have been no actual executions in South Korea in the past decade. Because of this, South Korea is categorized as a de facto abolitionist country, meaning that it has frozen executions in policy and practice. However, there are conflicting arguments for and against full abolition, and it remains a hot-button issue in the National Assembly, where bills to abolish the death penalty have been introduced several times, only to be automatically killed at the end of each session.
Criminal law is the last resort for regulating society. The death penalty is one of these rules, and it has served as a deterrent to criminals, reducing the incidence of heinous crimes and maintaining social order. There are also questions about whether it is necessary to completely abolish the death penalty in South Korea, which is already a de facto abolitionist country. Even if the death penalty is not executed, its mere existence in the law can indirectly help maintain social order. In the same way that having an army provides national security and a deterrent to war, the mere existence of the death penalty has a social deterrent effect. Also, the death penalty is necessary in a situation where the majority of the population is against abolishing the death penalty.
Some argue for the abolition of the death penalty. In a broad sense, all corporal punishment in the criminal law is a restriction of human rights, and some extreme thinkers argue for the abolition of punishment itself. The debate centers on the extent to which human rights can be enforced by law. In other words, the question is: to what extent can the state and social institutions limit the rights of individuals, and in particular, can the state deprive them of the right to life? This is one of the key points in the debate over the death penalty.
However, it’s also worth noting that the death penalty is the maximum legal sentence a court can impose, so it’s very rarely carried out. Only about 1% of people accused of murder in South Korea are sentenced to death. Since no executions have been carried out since the end of the Kim Young-sam government, the death penalty is used to mean the maximum punishment a court can impose rather than the actual execution of a criminal. In other words, the right to life is not violated in South Korea because it is not executed, so there is no need to fully abolish the death penalty, which is already classified as a de facto abolitionist country because it has not been executed for 10 years.
Some argue that the death penalty should be abolished because a wrongful conviction is irreversible. There are indeed cases of innocent people being executed abroad, so this argument is compelling. However, a wrongful conviction resulting in a free sentence is equally irreversible. Even monetary criminal compensation can’t make up for lost time in prison. If we abolish the death penalty because of a wrongful conviction, we would have to abolish other penalties for the same reason, which would create a contradiction, and eventually we would be left with only fines. The risk of wrongful convictions is a problem that needs to be compensated for by a proper judicial system, fair laws, and reasonable trials, not abolishing the death penalty.
Some argue that the death penalty should be abolished because it can be abused by authoritarian regimes as a means of maintaining power. In fact, many dictatorships do use the death penalty, and South Korea has had its share of abuses in the past. However, dictatorships are unlikely to occur in 21st century South Korea. Therefore, the separation of powers to prevent dictatorships and ensure the independence of the judiciary should be strengthened, not abolished. Abolishing the death penalty in dictatorships does not solve the problem, and it is more effective to establish a proper democratic government.
Some religious organizations also oppose the death penalty. They oppose it on religious grounds or cite historical examples of unjust martyrdom due to religious persecution. However, the principle of separation of church and state means that religion must be kept separate from politics and law, so laws cannot be changed on religious grounds. This would punish those who conscientiously object to military service based on their religious beliefs. Martyrdom cases are also a result of the death penalty being abused by dictatorships as a means of maintaining power. All institutions have the potential for abuse, but we cannot abolish all institutions because of their potential for abuse.
The psychological conflict of executioners is also a major argument in favor of abolishing the death penalty. The psychological conflict of killing people in the name of the law is an important consideration, but prison guards and correctional workers are also necessary to maintain social order and uphold justice. The process of punishing crimes is not without suffering, and this should be taken into account, but just as the state and society cannot abandon punishment, someone has a role to play.
The argument that the death penalty should be abolished does not reflect public opinion. When the Korean Gallup Polling Institute surveyed adult men and women about the death penalty in September, about 79% supported the retention of the death penalty, with 78% agreeing with the execution of violent criminals. In Japan and China, more than 80% of the public supports retaining the death penalty. Even in France, which abolished the death penalty, 62% of people supported retaining it in a poll just before the law was passed.
Punishing people for their crimes is a social contract, and it’s impossible to abolish the death penalty when the majority of the population is against it. The reason why the public supports the retention of the death penalty is because they recognize the need to punish heinous crimes such as murder. From a social contract perspective, laws are created by contracts between people, and people are obligated to honor them. In a society where the death penalty exists, those who commit crimes are prepared to face the consequences.
Some argue that the death penalty deters crime. However, the argument that retaining the death penalty contributes to lower crime rates is refuted by the fact that countries that retain the death penalty do not necessarily have lower crime rates. Although developed and developed urban countries have abolished the death penalty, it is not reasonable to conclude that abolition is effective in deterring crime based on low crime rates. To verify the actual crime deterrence effect, demographic and crime-related surveys between abolitionist and retentionist countries are needed, and this is a sensitive issue that is subject to interpretation by research organizations. However, South Korea has seen a slight increase in homicides, which underscores the need to retain the death penalty. The perpetrator of the August 2012 murder in Junggok-dong, Gwangjin-gu, Seoul, had 12 prior convictions, and there is widespread public opinion that it is not right to give these criminals a chance at a reduced sentence.
Maintaining the death penalty serves as a deterrent to criminals and a reassurance to society. As mentioned earlier, a majority of the public is in favor of retaining the death penalty, and many believe it contributes to reducing crime rates. It also gives victims and their families a chance to release some of their anger and grief. Of course, courts are not institutions of revenge, so retaining the death penalty cannot be justified solely on the basis of revenge, but it is a valid rationale.
Human life is of paramount value. Nevertheless, serious crimes such as terrorism, mass and serial killings, and child sexual abuse continue to occur. If these heinous criminals are not punished, a culture of disregard for life and distrust of government will prevail. The death penalty is necessary for social justice.
