Legal Perspectives on the Death Penalty and Abortion

Posted on Dec 13, 2024 in Law & Jurisprudence

Legitimate Ways to End Life

Legitimate ways to end life include self-defense, resistance to lawful detention, a legitimate prison escape, and disclosure to a legitimate authority. (This is based on the European Pact on Human Rights 1950, as recorded in the minutes of the Ortuzar Committee).

Death Penalty

The death penalty is defined as the “biological termination of an individual’s life, and due to its radical nature, it is surrounded by a series of safeguards.” The right to life is a moral absolute, but legally it is not, because the Constitution allows the death penalty since it has not been abolished, but rather repealed in most parts. There are still crimes punishable by death, such as in cases of treason or according to the organic law of the Investigations Police of Chile (PDI). The death penalty cannot be applied to any crime, only very serious crimes that have been committed with premeditation or treachery (unanimous agreement of the Supreme Court and the Court of Appeals). These are crimes committed against the most important legal assets of society. It requires that the offense be absolutely proven, as well as the author’s participation. The death penalty protects society against crimes that seriously undermine the feelings of mercy, kindness, love, and compassion that reside within society. It is for cases where rehabilitation is impossible. It responds to the need to impose a punishment on the offender and also to deter those who might want to commit the same crime in the future. In certain social strata, crime can be a deterrent sentence, but this has not been proven. It was established to put an end to individuals taking the law into their own hands (application of self-defense). The death penalty is imposed following a prior defense process for the accused. It is regulated through pre-existing rules. The State imposes the death penalty and establishes the prior process (and is responsible for its implementation).

Reservations

  1. The death penalty cannot be established by any law (quorum). Prior to the 1980 Charter, the death penalty was established by common law (simple majority, with one-third of the members in office).
  2. There is a possibility for death row inmates to request clemency. Those sentenced to qualified life imprisonment (40 years) have no possibility of parole. Those sentenced to life imprisonment (40 years) can apply for parole after 20 years and may be released earlier.

Pardons

Pardons are dictated by the Supreme President.

Special Situation of Terrorism

Generally, terrorists, regardless of the offense for which they have been convicted, are not able to access pardons, except in two cases:

  1. When the crime of terrorism occurred before 3/11/1990, there is the possibility of obtaining a pardon.
  2. If the terrorist was sentenced to death, no matter when the crime was committed, the sentence could be commuted to life imprisonment.

Clause 7 and 9, permanent transition, final paragraph.

Special Guarantees

  1. The death penalty cannot be applied to pregnant women until 40 days after delivery. Section 85 of the Criminal Code was repealed, which is a mistake because the death penalty has not been abolished; it still applies in the military justice code and for the PDI. However, as enshrined in Article 4 of the Pact of San José de Costa Rica and Article 6, paragraph 5 of the International Covenant on Civil and Political Rights.
  2. The death penalty cannot be applied if there is no unanimity of opinion in the Court of Appeals hearing the appeal or the Supreme Court hearing the appeal.
  3. It cannot be applied to a person who was under 18 years old or over 70 years old when the offense was committed.
  4. It is also not possible to apply the death penalty for political offenses (which are those with a political cause or motivation). Terrorism is an exception, as it may still have a political purpose according to Article 9 of the Constitution. It is considered a common crime. The crimes are enshrined in the law of State Security. Political crimes include rebellion, offenses against emblems, destruction of public institutions, and calling for a national strike. This benevolence exists because behind these crimes there is idealism and a defense of political principles.

Those countries that, upon ratification of the treaty, had abolished the death penalty as an institution may not introduce it later. Those who had not, like Chile in 1990, after ratification, shall not extend it to any new crimes.

Consequence: The power granted by Article 19, No. 1, inc. 3, which allows the legislature to establish the death penalty by quorum, is now blocked.

The Life of the Unborn

Article 19, No. 1, inc. 2 states, “the law protects the life of the unborn.” However, until 1989, therapeutic abortion was not punished according to Article 119 of the Health Code, provided it had the opinion of two non-treating physicians.

Methods of Abortion

  1. Therapeutic Abortion: Destroying the life of the unborn child to save the mother’s life or health, which is seriously threatened during pregnancy or childbirth.
  2. Ethical Abortion: Killing the unborn child when it is the result of rape.
  3. Eugenic Abortion: A technique that seeks to improve the race by killing the unborn child when it is feared that it will be born with a physiological, anatomical, or mental deficiency.
  4. Malthusian Abortion: Based on the ideas of an economist who stated that while the population increases geometrically, food increases arithmetically. It involves killing the unborn child because the mother has other children and not enough resources to feed another.
  5. Social Abortion: The mother, regardless of whether or not she has other children, lacks the resources to raise another child.
  6. Honorary or Sentimental Abortion: Killing the unborn child to save the prestige of the single mother.
  7. Abortion for Convenience: Killing the unborn child because its life would be difficult for the mother.

Although the Constitution protects the life of the unborn, there are current movements seeking to decriminalize abortion:

First Position

The legislature may, exceptionally, decriminalize some forms of abortion. Those who hold this view believe that the unborn child is not a person, or at least not yet a person, since according to the Civil Code, one must be born to have rights. They argue that the Constitution does not consider the unborn child a person because if it did, it would have sufficed for the Constitution to guarantee all people physical and mental integrity. However, since it did not consider the unborn child a person, it had to include a special provision.

Reliable History: If one analyzes the records of the Ortuzar Commission, it becomes clear that the majority agreed with legalizing abortion, and only two members (Jaime Guzman and Alejandro Silva Bascuñan) were outright opposed to decriminalizing any form of abortion. The others thought, “Whether a family chooses to have an abortion or not has more to do with religious or moral issues than with law; the Constitution cannot be mixed with moral issues.”

Second Argument: The unborn child has neither will nor understanding and therefore can hardly be considered a person (until 1989, Law 18,826).

Second Position

Those who hold this position say that the unborn child is a person, and that life begins at conception and ends with death. The stages of life are interdependent; if you end just one, life itself is affected. It is true that according to the Civil Code, one is only a person at birth, but the Civil Code is expressed in this way only with regard to the need to enter into the enjoyment of property rights. In any case, the Civil Code does not deny the unborn child the status of a person for the enjoyment of rights other than property, such as the right to life. It is true that the Constitution included a special provision for the unborn child. However, this was not because it did not consider the unborn child a person, but rather to strengthen its protection. By incorporating this provision into the Constitution, it is no longer a matter for the legislature to decide; there is a constitutional limitation imposed on the legislature. The argument that the unborn are not persons because they have no will or understanding is ridiculous, because then neither should the insane be considered persons. This is confirmed by the Supreme Court case regarding “pick-up days.”