This blog post examines whether abolishing the death penalty, supported by a majority of citizens, is justified from the perspective of deterring heinous crimes.
It is often said that ‘the law is the minimum standard of morality.’ This implies that among countless moral norms, the norms that must be enforced, even through coercive force, are precisely the law—and specifically, criminal law. Thus, law is an indispensable element for maintaining society. However, the specific statutes differ in each society, or nation. This is a natural phenomenon stemming from the varying circumstances of each country and the differences among its legislators. Nevertheless, there is one statute whose existence remains a subject of ongoing debate in many countries: the death penalty.
In the Republic of Korea, the death penalty is recognized as one of the legal punishments. As stipulated in Article 41 of the Criminal Act, the death penalty can be imposed as the maximum statutory sentence for specific serious crimes, such as murder. According to Amnesty International’s annual report published in March 2011, while the death penalty is explicitly provided for in Korean law and sentences are handed down, there have been no actual executions in the past decade. Consequently, South Korea is classified as a country that has effectively abolished the death penalty, having frozen its implementation both in policy and practice. However, the issue remains a hot potato, with conflicting opinions on complete abolition. Bills to abolish the death penalty have been proposed multiple times in the National Assembly, but they have been automatically discarded each time due to the end of the legislative session.
Criminal law is society’s ultimate means of discipline. The death penalty, as one such disciplinary measure, has contributed to maintaining social order by deterring criminals and reducing the incidence of heinous crimes. Questions arise about the necessity of completely abolishing the death penalty in South Korea, already a de facto abolitionist country. Even if not carried out, its mere existence in law can indirectly aid in maintaining social order. Just as maintaining a military ensures national security and war deterrence even without waging war, the mere existence of the death penalty creates a social deterrent effect. Furthermore, given that the majority of citizens oppose abolishing the death penalty, it can be argued that the system remains necessary.
Some advocate for abolishing the death penalty. The primary argument of abolitionists centers on fundamental human rights. In a broad sense, all corporal punishment under criminal law can be seen as restricting human rights, leading some extreme thinkers to argue for the abolition of punishment itself. Thus, debate arises over the extent to which the law can enforce human rights. In essence, the core issue is how far the state and social institutions can restrict individual rights, particularly whether the state can deprive an individual of their right to life. This is one of the central points in the debate over the death penalty’s existence.
However, it is also important to note that the death penalty is the maximum sentence a court can impose, and it is very rarely actually handed down. In South Korea, only about 1% of those indicted for murder receive the death penalty. Since the late Kim Young-sam administration, no executions have been carried out. Consequently, a death sentence is used more as a symbol of the maximum punishment a court can impose rather than an actual threat of execution. In other words, even if sentenced to death in Korea, the sentence is not carried out, so the right to life is not violated. Therefore, given that executions have not been carried out for a decade, effectively classifying Korea as a de facto abolitionist country, there is no need to formally abolish the death penalty.
Some argue that the death penalty should be abolished because wrongful convictions are irreversible. This argument holds persuasive power, as there are actual cases overseas where innocent people were executed. However, imprisonment due to a wrongful conviction is equally irreversible. Even monetary criminal compensation cannot restore the time lost in prison. Abolishing the death penalty solely due to the risk of wrongful convictions creates a contradiction, as other punishments would need to be abolished for the same reason, ultimately leaving only fines. The risk of wrongful convictions is an issue that must be addressed through a sound trial system, fair laws, and rational adjudication; it is not solved by abolishing the death penalty.
Some argue the death penalty should be abolished because it can be abused as a tool for maintaining power in authoritarian states. Indeed, many authoritarian regimes carry out executions, and South Korea itself has a history of death penalty abuses. However, the likelihood of authoritarian rule emerging in 21st-century South Korea is low. Therefore, the solution lies in strengthening the separation of powers to prevent authoritarianism and guarantee judicial independence, not in abolishing the death penalty. Abolishing the death penalty in a dictatorship does not solve the problem; establishing a proper democratic government is more effective.
Some religious groups also oppose the death penalty. They oppose it based on religious grounds or cite historical cases of unjust martyrdom due to religious persecution. However, the principle of separation of church and state dictates that religion must be separated from politics and law, so laws cannot be amended for religious reasons. This is analogous to how conscientious objectors to military service based on religious beliefs are punished. Martyrdom cases are also the result of the death penalty being abused as a tool for regime maintenance in dictatorships. While all systems carry the potential for abuse, the possibility of abuse cannot justify abolishing every system.
The psychological conflict experienced by executioners is also a major argument for abolition. The psychological struggle of having to kill someone in the name of the law is an important consideration. However, prison guards and correctional officers also perform necessary jobs to maintain social order and uphold justice. There can be no punishment of crime without anguish, and this must be fully considered. Yet, just as the state and society cannot abandon punishment, someone must perform this role.
Arguments for abolishing the death penalty do not reflect public opinion. A September survey by Gallup Korea of adult men and women found approximately 79% supported retaining the death penalty, with 78% agreeing on executing the death penalty for heinous criminals. In Japan and China, over 80% of citizens also support maintaining capital punishment. Even in France, which abolished capital punishment, a poll conducted just before the bill passed showed 62% supported retaining the death penalty.
Punishing crime is a promise among members of society, and abolishing the death penalty is impossible when the majority of citizens oppose its abolition. The reason citizens support retaining the death penalty is the recognition that severe punishment is necessary for heinous crimes like murder. From a social contract perspective, laws are created by people’s agreements, and people have an obligation to uphold them. In a society where the death penalty exists, those who commit crimes would have been prepared for the corresponding punishment.
There is also the argument that the death penalty deters crime. However, the claim that maintaining the death penalty contributes to lower crime rates is countered by the fact that crime rates are not necessarily lower in countries that retain capital punishment. While advanced nations and city-states with advanced economies have abolished capital punishment, it is unwise to conclude that abolition effectively suppresses crime solely based on their low crime rates. To verify its actual crime-suppressing effect, comparative studies on population structures and crime-related data between abolitionist and retentionist countries are necessary—a sensitive issue where results can vary based on the interpreting agency. However, in South Korea, homicide cases have seen a slight increase, and within this rising trend, the necessity of maintaining the death penalty is being emphasized. The perpetrator of a homicide that occurred in Junggok-dong, Gwangjin-gu, Seoul in August 2012 had 12 prior convictions, and public opinion overwhelmingly holds that granting such criminals the opportunity for sentence reduction is unjust.
Maintaining the death penalty serves as a deterrent to criminals and provides a sense of reassurance to members of society. As mentioned earlier, a majority of citizens support retaining the death penalty, and many believe it contributes to reducing crime rates. It also provides victims or bereaved families with an opportunity to partially alleviate their anger and grief. Of course, since the court is not an institution for revenge, retaining the death penalty cannot be justified solely for reasons of vengeance, but it can serve as a relevant consideration.
Human life is the paramount value. Nevertheless, heinous crimes such as terrorism, mass or serial killings, and child sexual abuse continue to occur. If perpetrators of such atrocities do not receive the ultimate punishment, a culture of disregard for life and distrust in the government will become widespread. For the sake of social justice, the death penalty must be preserved.
