DPRU Q&As: Essen Lee, Lawyer, Taiwan: Part Two

In the latest instalment of the DPRU's Q&A series with death penalty litigators, DPRU Project Manager Daniel Cullen speaks to Essen Lee, a Taiwanese lawyer, about the death penalty situation in Taiwan, conditions for death row prisoners, the decline in executions over recent decades, efforts towards abolition and the challenges faced by lawyers working on capital cases.

Are there any notable patterns among capital cases in Taiwan?

From my limited experience, I have observed the following dynamics:

Defendants who committed crimes are mostly from the lower strata of society, with limited economic means and extremely low monthly disposable income. I would say that most of them earn less than Taiwan's minimum wage, meaning their monthly income is below USD 800.

Their low income often directly relates to their psychological state. Defendants frequently exhibit various personality and temperamental issues, making it difficult for them to get along with employers and colleagues at work; they often have conflicts with family members; and in terms of friendships, they typically associate only with specific types of people, leading to a limited social circle.

Through interdisciplinary analysis by psychiatrists, social workers, and psychologists during the legal process, we often discover varying degrees of severe mental and physical disabilities. When examining their lifestyles, more than half struggle with substance abuse, including alcohol addiction, tobacco addiction, and even drug abuse.

A systematic review conducted by the Taiwan Alliance to End the Death Penalty (TAEDP) concluded that: "The majority of death row inmates only have an elementary or middle school education before committing their crimes and do not have stable incomes."

In other cases where I did not serve as the defence attorney, or where I represented the victim's family (as the victim's representative in the proceedings), I have observed that many defendants also have severe mental and physical disabilities.

Finally, regarding the stories of death row inmates, the TAEDP has systematically compiled the defendants' stories, which can be referenced here. 

Could you describe the conditions death-sentenced prisoners live under in Taiwanese prisons, and to what extent these differ from those of ordinary prisoners? 

Currently, there are 37 death row inmates in Taiwan whose sentences have been finalised but have not yet been executed, including one woman.

In 2020, with the Ministry of Justice's approval, TAEDP assembled professionals from the fields of law, psychiatry, psychology and social work to interview death row inmates and life-sentenced inmates across Taiwan. This research provided a comprehensive understanding of the living conditions in prisons.

Death row inmates typically reside in cells that house two people in a space of about 4.3 square meters. They eat, drink and defecate in this small space, with limited access to water and strict controls on water usage, time and quantity. They have only 30 minutes of outdoor exercise per day, with no outdoor time on holidays. The space is cramped, poorly ventilated and given Taiwan's subtropical location, the temperature inside is often too high. These factors—limited space, high temperature, humidity and odours—create various long-term stressors.

The vast majority of death row inmates have requested solitary confinement, though this wish may not always be fulfilled, and long-term solitary confinement can also lead to psychological issues.

Although the law allows death row inmates to participate in prison factory work (though participation often involves sitting on the floor doing handicrafts, which is not conducive to long-term health), prison authorities frequently cite a lack of manpower for supervision as a reason for allowing death row inmates only minimal activities.

In addition to the challenges specific to death row prisoners, TAEDP found that death row inmates also struggle with issues affecting long-term prisoners in Taiwan such as "overly greasy prison food that is detrimental to health," "serious dental problems common among long-term inmates," "a lack of effective psychological counselling and medical resources," and "correctional and educational programs that are often superficial."

Over the last two decades, the number of executions in Taiwan has fallen significantly relative to the 1990s. What factors explain this shift in practice?

In short, the blossoming of freedom, democracy and the rule of law in Taiwan began in the late 1990s. People born after the 1980s witnessed the continuous promotion of democratic and liberal values in the 1990s, and growing up in such an environment, citizens became more progressive as they reached adulthood, around the year 2000. This shift led to increasing public questioning and discussion of the death penalty, with the government, judiciary, and legislature gradually becoming more cautious and introspective about their roles.

In terms of executive power, after 2000, regardless of the extent of practical implementation, every president has verbally respected the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) and has continuously allowed the Ministry of Justice to promote various international human rights conventions.

However, politics is complex, with various forces interacting, and the trajectory after 2000 remained turbulent. For instance, the Chen Shui-bian administration (2000-2008) began a moratorium on the death penalty in 2006. However, when Ma Ying-jeou took office in 2008, despite introducing the two covenants in 2009 (indicating Taiwan's apparent commitment to respecting and protecting human rights and gradually moving towards the abolition of the death penalty), his administration resumed executions in 2010 (executing four people in 2010, five in 2011, six in 2012, six in 2013, five in 2014, six in 2015 and one in 2016).

The subsequent Tsai Ing-wen administration carried out fewer executions (zero in 2017-2018, one in 2019, one in 2020 and zero from 2021 to 2023). However, I believe this is more due to the efforts of NGOs and legal teams (which established statutory limits on the execution of the death penalty) rather than the government's initiative.

To what extent is the death penalty an issue that is discussed/debated within public and political discourse in Taiwan at present? 

There are many debates and discussions, but most of these conversations are relatively superficial. The majority of public discussions tend to occur in response to reports of major criminal cases. Because these discussions are often sparked by crime-related news, it is challenging to have comprehensive and mature debates.

However, there are mature discussions. For instance, in 2015, the former Justice Hsu Yu-shiou established the Taiwan Constitutional Court Simulation, inviting a large number of legal practitioners (lawyers, judges), law professors, and interdisciplinary professionals (psychologists, psychiatrists, sociologists, etc.) to engage in simulated Constitutional Court debates on the death penalty. Later,  the former Justice Hsu Yu-shiou, who had convened the Taiwan Constitutional Court Simulation, established the Asian Human Rights Court Simulation in 2019.

These high-quality discussions have indeed accumulated a significant body of discourse. I personally believe that when Taiwan's Constitutional Court held its first substantive debate on the death penalty in 2024, it was built upon the foundation of these previous activities.

Any you aware of any political or legislative efforts towards either the abolition of the death penalty or suspension of executions in Taiwan in recent years? 

In 2006, the Taiwanese Parliament gradually amended the law to remove provisions where the only punishment was the death penalty (though there are still about 50 criminal laws where the death penalty remains an option for judges). In 2006, the Chen Shui-bian administration began to stop signing death penalty execution orders. In 2009, the Ma Ying-jeou administration signed Article 6 of the International Covenant on Civil and Political Rights (ICCPR), formally committing to gradually move towards the abolition of the death penalty.

Since 2016, the average number of death penalty executions per year has remained below one. From 2021 to 2024, as of the time of writing, no executions have been carried out.

During the recent Constitutional Court debates, the National Human Rights Commission also appeared as a relevant agency to give testimony. The stance of the National Human Rights Commission in favour of abolishing the death penalty was in stark contrast to the Ministry of Justice’s position of maintaining it.

What are the biggest challenges you face as a lawyer working on capital cases in Taiwan? 

If I had to mention a few challenges that have troubled me, I would identify three.

(1) Clients often have a variety of psychological and emotional issues, making communication difficult. Sometimes I want to help a client, but they refuse assistance, and I am unable to help. It’s also possible that while I want to help, I don’t want to be overly relied upon or emotionally manipulated by the client. Finding the right balance in such situations is clearly an art.

(2) Secondly, many judges and prosecutors in the higher courts where I practice seem to have little regard for defence attorneys in death penalty cases. Some judges even question why these cases require three defence attorneys, why defence attorneys raise so many issues, leading to prolonged discussions and increased costs, or why we spend resources to understand the life history and behaviour of death row defendants.

(3) Finally, the person a lawyer assists may ultimately face death, which is a psychological burden that requires preparation. I am certain that some of my colleagues can handle this, while others are still struggling, and some have even developed psychological crises as a result.  

This is the second part of a two-part interview with Essen. The first part is available here, covering his legal practice, his work on a recent constitutional challenge to the death penalty, his journey to working on capital cases, and the motivations and inspirations behind his work.

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Essen Lee is a Taiwanese lawyer with experience of representing defendants in capital cases and bringing a 2024 challenge to the constitutionality of the death penalty. He is a Member of the Executive Committees of Taiwan Alliance to End the Death Penalty (TAEDP) and Taiwan Association for Human Rights, and was formerly Vice Chairperson of Amnesty International Taiwan (2014-16). He holds a Master’s in Criminal Law from Soochow University and a Master’s in Law (LLM) from Northwestern University.