The American Journal of Jurisprudence
Volume 41(1996)

P.271 I. INTRODUCTION There is a global trend against capital punishment. Most nations in the developed world and an increasing number of nations in the developing world have officially abolished the death penalty.(1) Similarly, there is an abolitionist movement in the realm of international law.(2) However, matters are quite different in the United States(3) where the United States Supreme Court in Gregg v. Georgia(4) permitted the resumption of executions by the states after the hiatus brought about by Furman v. Georgia.(5) If public opinion polls are to be believed, the general concept of capital punishment remains popular in the United States today. Politicians are well aware of this. In the spring of 1995 New York rejoined the ranks of states with the death penalty. A majority of states have laws providing for the death penalty even though the number of actual executions remains relatively low when compared to the population of inmates on death rows across the nation.(6) In recent years the Supreme Court has repe- atedly come out in favor of the death penalty. For instance, the mentally retarded may be executed.(7) Likewise, minors may be executed.(8) Such decisions go ----------------- 1. Charles Humana, World Human Rights (1992). 2. William A. Schabas, The Abolition of the Death Penalty in International Law (1993). 3. An informative overview of capital punishment in America can be found in Amnesty International, United States of America: The Death Penalty (1987). 4. 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). 5. 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). 6. Tom Morganthau et al, "Condemned to Life," Newsweek, Aug. 7, 1995, p. 18; David A. Kaplan, "Anger and Ambivalence," Newsweek, Aug. 7, 1995, p. 24; Rebecca Westerfield, "The Death Penalty: Impending Challenges, " 22 Human Rights (Winter 1995), p. 40; Michael Ross, "A View from Death Row," 22 Human Rights (Summer 1995), p. 20. 7. Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989). See also, Emily Fabrycki Reed, The Penry Penalty: Capital Punishment and Offenders with Mental Retardation (1993). 8. Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (1988). See also, Suzanne D. Strater, "The Juvenile Death Penalty: In the Best Interests of the Child?" 22 Human Rights (Spring 1995), p. 10. P.272 against what appears to be the general evolution of international law.(9) Yet perhaps the most dramatic and disturbing example of the Supreme Court's recent support of the death penalty is Herrera v. Collins(10) where the existence of evidence supporting the petitioner's claim of actual innocence was not proper grounds for federal habeas corpus relief. In other words, in Herrera, the Supreme Court was willing to allow a person who was possibly not guilty to be executed despite documented claims of actual innocence and related federal constitutional arguments based on the Eighth Amendment's prohibition against cruel and unusual punishment and the Fifth and Fourteenth Amendments' guarantee of due process of law. The implications of Herrera(11) are especially tragic when one realizes that a surprisingly large number of Americans have been wrongly convicted of capital crimes. Some of these individuals have also been executed.(12) In the United Kingdom, the execution of a man who later turned out to possibly be not guilty served as an impetus toward doing away with capital punishment for murder in that country.(13) In any event, as is the case with capital punishment in the United States generally, race and class (14) play a role in determining who is more likely to be executed in spite of innocence. Regardless of how the current Supreme Court may interpret the Constitution, as Mr. Justice William Brennan once pointed out: "At ------------ 9. The Abolition of the Death Penalty in International Law. 10. 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993) 11. As Mr. Justice Harry Blackmun put it so well: "The execution of a person who can show that he is innocent comes perilously close to simple murder." Herrera, 506 U.S. 390, --; 113 S. Ct. 853, 884; 122 L. Ed. 2d 203, 246 (Blackmun, J., dissenting). 12. Michael L. Radlet et al, In Spite of Innocence: Erroneous Convictions in Capital Cases (1992). See also, American Civil Liberties Union, Innocence and the Death Penalty (ACLU Capital Punishment Project Fact Sheet, June 1995). 13. R. v. Evans, [1950] 1 All ER 610, 66 TLR (Pt 1) 629, 34 Cr App Rep 72, [1950] WN 111. See also, James B. Christoph, Capital Punishment and British Politics: The British Movement to Abolish the Death Penalty 1947-1957 (1962). Ironically, one of the prosecutors in Evans was a well-known English Buddhist writer and lay leader named Christmas Humphreys (1901-1983). Humphreys would go on to become a particularly liberal judge at the Central Criminal Court i.e., "the Old Bailey." Christmas Humprheys' father was the noted jurist Sir Travers Humphreys (1867-1956) . See generally, Christmas Humphreys, Both Sides of the Circle: The Autobiography of Christmas Numphreys (1978) Christmas Humphreys, "The Duties and Responsibilities of Prosecuting Counsel, Grim. L.R. (1955), p. 739. 14. See, e.g., Adalberto Aguirre, Jr. and David V. Baker, Race, Racism and the Death Penalty in the United States (1991); Michael Ross, "Is the Death Penalty Racist?" 21 Human Rights (Summer 1994), p. 32. P.273 bottom, the battle [over the death penalty] has been waged on moral grounds."(15) Taking this statement from Brennan as a cue, it is useful to look at religious perspectives on the death penalty. It should perhaps come as no surprise that within the United States, Jewish and Christian religious bodies have not spoken with one voice on capital punishment.(16) In the broad Judeo-Christian tradition, biblical passages have been quoted by retentionists and abolitionists alike in support of their respective positions.(17) While it might be one thing for certain Jews(18) to quote the Hebrew Bible in support of capital punishment, it is striking that so many Christians support capital punishment. After all, Jesus (4 BC?-29 AD?) remains the world's most famous executed criminal defendant. Be that as it may, very little has been written regarding Buddhist views on capital punishment. The author intends to help remedy this deficiency. What follows, therefore, is a Buddhist perspective on the death penalty based upon Buddhist thought and history. This article should be seen as being just that. In other words, what is about to be presented is merely one possible perspective, albeit one that has considerable support in the corpus of Buddhist literature and the experience of Buddhism as a living religion existing in various cultures over the past two and a half millennia. II. BUDDHIST TEACHINGS Buddhism(19) is a rich tradition with an extensive corpus of religious(20) literature.(21) This literature has been referred to by the author in ---------- 15. Furman, 408 U.S. 238, 296; 92 S. Ct. 2726, 2755; 33 L. Ed. 2d 346, 382 (Brennan, J., concurring). 16. Nevertheless, many mainstream Jewish and Christian denominations in the United States have gone on record as opposing the death penalty. Michael Kronen-wetter, Capital Punishment: A Reference Handbook (Contemporary World Issues, 1993), pp. 59-61, 70. 17. Ibid., pp. 150-155. 18. Incidentally, in 1954 Israel itself abolished capital punishment except for the punishment of Nazi war crimes. World Human Rights Guide, p. 158. 19. The author will consider Buddhism as a whole. It is the author's opinion that Theravada, Mahayana, and Vajrayana--the three major forms of Buddhism in existence today--all share a significant common ground. There is an unfortunate tendency on the part of some scholars to overemphasize the differences among the three forms. For brief definitions of Theravada, Mahayana, and Vajrayana, refer to Ingrid Fischer-Schreiber et al, The Encyclopedia of Eastern Philosophy and Religion (Stephan Schuhmacher et al, trans. 1994) , pp. 215-16, 369, 398-99. 20. The author defines Buddhism as a "religion" even though Buddhism lacks a notion of "God" along the lines of what is found in theistic religions like Judaism, P.274 developing a systematic Buddhist perspective on the death penalty.(22) The nature and purpose of the texts(23)vary, but the major themes of the texts point toward a definite stance which is clearly within the spirit of the Buddhist outlook on the human condition. A. Panca-sila A logical starting point from which to begin considering a Buddhist perspective on the death penalty would be Buddhism's most basic set of training rules for personal spiritual development known as the panca-sila(24) or five precepts.(25) These basic rules of good conduct are for all Buddhists, lay or ordained.(26) --------- Christianity, and Islam. This is similar to how Buddhism is viewed in American law. See, e.g., Welsh v. U.S., 398 U.S. 333, 357, 90 S. Ct. 1792, 1805, 26 L. Ed. 2d 308, 328 (1970) (Harlan, J., concurring); U.S. v. Seeger, 380 U.S. 163, 174, 85 S. Ct. 850, 858, 13 L. Ed. 2d 733, 742 (1965); Torcaso v. Watkins, 367 U.S. 488, 495, 81 S. Ct. 1680, 1684, 6 L. Ed. 2d 982, 987 (1961). See also, Cruz v. Beto, 405 U.S. 319, 92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972) (per curiam). 21. The author has examined mostly English translations of canonical works from various versions of the Buddhist Canon (Sanskrit: Tripitaka; Pali: Tipitaka). Given the immense size of the Canon as well as the fact that only certain portions of the Canon are currently available in either English or other European languages, the present survey should be treated as being indicative rather than exhaustive. For more information on the nature of the Buddhist Canon, see generally Maha Sthavira Sangharakshita (Venerable), The Eternal Legacy: An Introduction to the Canonical Literature of Buddhism (1985) ; Kogen Mizuno, Buddhist Sutras: Origin, Development, Transmission (Morio Takanashi et al, trans. 1982) ; White Lotus Co., Guide to the Tipitaka: AN INTRODUCTION TO THE BUDDHIST CANON (Martin Perenchio et al, eds. 1993); Bukkyo Dendo Kyokai, An Introduction to the Buddhist Canon: 139 Buddhist Scriptures (Shoyu Hanayama, ed. and R.W. Giebel, trans. 1986) [In English & Japanese]. 22. It is worth noting that despite the vastness of Buddhist literature, canonical as well as non-canonical, ultimately the Buddhist experience of life lies beyond anything written. Buddhist insight transcends language itself. As Bodhidharma (470?-543?), a famous South Indian Buddhist monk who was active in China, once wrote: "The ultimate Truth is beyond words. Doctrines are words. They're not the Way. The Way is wordless." Bodhidharma, The Zen Teaching of Bodhidharma (Red Pine trans., 1989), p. 31. 23. The texts discussed in this article will be referred to in an order that does not strictly consider the possible dates of composition. Likewise, the texts represent different sects and schools of Buddhism. 24. Most key Buddhist terms referred to in this paper will include transliterations of the Sanskrit versions. 25. For a general discussion of the five precepts see, (Bhikkhu) Bodhi, Going for Refuge: Taking the Precepts (The Wheel Publication Nos. 282-284, 1981). See also, Nandasenda Ratnapala, Crime and Punishment in the Buddhist Tradition (1993), pp. 72-73. For some thoughts on the tension between capital punishment and the five precepts, P.275 The very first, and arguably most important, precept is the training rule of abstaining from taking life. The four other training rules are: abstaining from taking what is not given; abstaining from sexual misconduct; abstaining from false speech; and abstaining from intoxicants. Abstaining from the destruction of life encourages the development of compassion (karuna) (27) for all beings. Moreover, Buddhism teaches that all sentient beings (sattva)(28) are fundamentally good. All sentient beings possess what is known as Buddha-nature (buddhata).(29) Having Buddha-nature means that all sentient beings can eventually realize enlightenment/awakening (bodhi) (30) and thereby become Buddhas i.e., Awakened Ones.(31) Hence, Buddhism is universalistic. Everyone has great spiritual potential waiting to be unleashed no matter how depraved they might look. All life is to be treasured. It matters not how lowly such life may seem. Treasuring the lives of those who, in many cases, have not valued lives of others is an act of spiritual courage. This notion --------- see Andrew Huxley, Sanction in the Theravada Buddhist Kingdoms of S.E. Asia (1992), pp. 335, 366. 26. Ordained Buddhists viz., monks and nuns, traditionally have additional sets of training rules. Edward Conze, Buddhism: Its Essence and Development (1959) (1951), p. 54. Such rules also provided Buddhist monastic orders with the authority for disciplining monks and nuns. See generally, Crime and Punishment in the Buddhist Tradition; M.B. Voyce, "The Legal Authority of the Buddha over the Buddhist Order of Monks," 1 J.Of L. & Religion (1983), p. 307; M.B. Voyce, "The Communal Discipline of the Buddhist Order of Monks: The 'Sanction' of the Vinaya Pitaka," 29 Am. J. Juris. (1984), p. 123. Such monastic law should be distinguished from the influence of Buddhism on more secular Asian legal thought. One place where Buddhism continues to have some influence on the national legal system is Thailand. Frank E. Reynolds, "Dhamma in Dispute: The Interaction of Religion and Law in Thailand," 28 Law & Soc'y. R. (1994), p. 433. 27. The Encyclopedia of Eastern Philosophy and Religion, pp. 176-77; John Grimes, A Concise Dictionary of Indian Philosophy: Sanskrit Terms Defined in English (1989), pp. 172-73. 28. Yuho Yokoi, The Japanese-English Zen Buddhist Dictionary (1991), pp. 705, 807; Arthur Anthony Macdonell, A Practical Sanskrit Dictionary: With Transliteration, Accentuation, and Etymological Analysis Throughout (1965) (1924), p. 330. Purists may note that sattva is a neuter noun. Hence, the plural in the nominative case should be sattvani. 29. Whether this also applies to non-sentient beings is a matter of some rather scholastic debate. The Encyclopedia of Eastern Philosophy and Religion, p. 49. Such debate shall remain outside the scope of the present paper. 30. Ibid., p. 37. 31. A Practical Sanskrit Dictionary: With Transliteration, Accentuation, and Etymological Analysis Throughout, p. 196. P.276 supports nonviolence/non-harming (ahimsa)(32) which leads to the advocation of such wholesome causes as world peace(33) and vegetarianism.(34) Taking a strong stance against the death penalty is a logical outgrowth of any religion or philosophy based upon nonviolence.(35) Another aspect of ahimsa is the notion of karma, (36) "action" or "deed." At the risk of over-simplification, there is good as well as bad karma. We are influenced by karma from the past and we create new karma in acts of free will as we live our lives. Killing is simply bad karma. The author will now turn to additional textual support for a Buddhist position against all forms and cases of capital punishment B. THE DHAMMAPADA One of the most important religious texts for Buddhism is a poetic collection of aphorisms known as the Dhammapada or Dharmapada.(37) ------------- 32. Ahimsa is also a central concept in Hinduism and even more so in Jainism. The Encyclopedia of Eastern Philosophy and Religion, p. 5; A Concise Dictionary of Indian Philosophy, p. 17. In this century, ahimsa was a guiding principle for Mohandas Karamchand Gandhi (1869-1948) and later for Martin Luther King, Jr. (1929-1968). See, Dennis Dalton, Mahatma Gandhi: Nonviolent Power in Action (1993). 33. See, e.g., Inner Peace, World Peace: Essays on Buddhism and Nonviolence (Kenneth Kraft, ed. 1992) ; Buddhism and Nonviolent Global Problem-Solving: Ulan Bator Explorations (Glenn D. Paige and Sarah Gilliatt, eds. 1991). 34. Only a minority of Buddhists are actually vegetarian. Nevertheless, vegetarianism does find strong support among the monks and nuns of China, Korea, and Vietnam. See Philip Kapleau, To Cherish All Life: A Buddhist Case for Becoming Vegetarian (1982). 35. Admittedly, there have been some attempts during the long history of Buddhism to provide Buddhist justifications for killing human beings especially in times of war. See, e.g., Paul Demieville, "Le Bouddhisme et la Guerre, " 11 Bibliotheque de l'Institut des Hautes Etudes Chinoises (1957) , p. 347; Capt. Lawrence P. Rockwood, "Apology of a Buddhist Soldier, " 5 Tricycle: The Buddhist Review (Spring 1996), p. 71. Ritual suicide has also found a place, albeit a small one, in Buddhism. A recent immolation case reminiscent of the 1960s took place in Vietnam. "Notes on Church-State Affairs--Vietnam," 36 J. of Church and State (1994), pp. 222-23. Likewise, abortion is tolerated in an interesting way by some Buddhists. William LaFleur, "The Cult of Jizo: Abortion Practices in Japan and What They can Teach the West," 4 Tricycle: The Buddhist Review (Summer 1995), p. 40. Naturally, on one level, there is a difference between killing the guilty and killing the innocent. Yet, even a person who commits the most heinous acts remains a human being. 36. It is arguably more accurate to say karman which is the nominative case of this neuter Sanskrit noun. See A Practical Sanskrit Dictionary: With Transliteration, Accentuation, and Etymological Analysis Throughout, p. 64. However, "karma, " without the final "n" has already become an English word listed in many dictionaries. Here it will be treated as such. 37. There are quite a few translations of the Dhammapada into English. The P.277 This work is preserved in Pali(38) and in other ancient languages.(39) The title means roughly "Path of Dhamma" (Sanskrit: Dharma) . The term dharma/dhamma can be translated in any number of ways depending upon the context. "Law, " "righteousness," "merit," "quality," "cause," and "religious teachings" are among some of the approximate meanings of this key concept in Indian thought.(40) The initial verses of Chapter 10 of the Dhammapada speak of killing: "Everyone fears punishment; everyone fears death, just as you do. Therefore do not kill or cause to kill. Everyone fears punishment; everyone loves life, as you do. Therefore do not kill or cause to kill."(41) In Chapter 26, the final chapter of the Dhammapada, we find a related passage: "Him I call a brahmin(42) who has put aside weapons --------------- author has relied mostly upon The Dhammapada (Eknath Easwaran, trans. 1985). Other translations consulted include: The Dhammapada (John Boss Carter and Mahinda Palihawadana, trans. 1987); Juan Mascaro, The Dhammapada: The Path of Perfection (1973); (Venerable Sri) Achaya Buddharakkhita, Dhammapada: A Practical Guide to Right Living (1959). 38. Pali is an ancient Indian language closely related to Sanskrit. A body of religious texts handed down in Pali forms the scriptural basis for Theravada Buddhism, the main school of Buddhism found today in Sri Lanka, Burma, Thailand, Laos and Cambodia. Theravada Buddhism also has lesser presence in other parts of Asia. See generally, Buddhism: Its Essence and Development. As for some technical concerns about working with texts in the Pali Canon, see K.R. Norman, "Pali Philology and the Study of Buddhism," in The Buddhist Forum: Seminar Papers 1987-1988 (Tadeusz Skorupski, ed. 1990), p. 31; K.R. Norman, "The Pall Language and Scriptures," in The Buddhist Heritage (Tadeusz Skorupski, ed. 1989), p. 29. For a study of the influence of Fali literature on the legal history of much of Southeast Asia, see Andrew Huxley, "Sanction in the Theravada Buddhist Kingdoms of S.E. Asia," Recueils de la Societe Jean Bodin (1992), p. 335. 39. Various versions of the Dhammapada have been preserved in Pali, Gandhari, Sanskrit, Classical Chinese, and Classical Tibetan. From such versions modern translations into a considerable number of contemporary Asian and Western languages have been made. Kogen Mizuno, "Dharmapadas of Various Buddhist Schools, " in A.K. Narain, Studies in Pali and Buddhism: A Memorial Volume in Honor of Bhikkhu Jagdish Kashyap (1979), p. 255. 40. A Concise Dictionary of Indian Philosophy: Sanskrit Terms Defined in English, pp. 113-14. 41. The Dhammapada, p. 111. 42. Here the term brahmin is being used in a Buddhist sense as opposed to the standard Hindu understanding of the term. Thus, in the Dhammapada a brahmin is one who has awakened spiritually. In mainstream Hinduism, however, a brahmin is merely a member of the priestly caste. Ibid., p. 188. Incidentally, "brahmin" is actually an English word derived from the Sanskrit brahmana which is, in turn, derived from the Vedic brahman. This point was kindly explained to me in some detail on November 22, 1995, by Dr. Waiter Harding Maurer, Professor of Sanskrit, University of Hawaii at Manoa. P.278 and renounced violence toward all creatures. He neither kills nor helps others to kill."(43) C. Janasandha-Jataka This jataka(44) is a story(45) Said to be told by the Buddha to the King of Kosala.(46) It tells the tale of a certain Prince Janasandha, the son of King Brahmadatta of Benares: Now when [Prince Janasandha] came of age, and had returned from Takkasila, where he had been educated in all accomplishments, the king gave a general pardon to all prisoners, and gave him the viceroyalty. Afterwards when his father died, he became king, and then he caused to be built six almonries.... There day by day he used to distribute six hundred pieces of money and stirred up all India with his almsgiving: the prison doors he opened for good and all, the places of execution he destroyed....(47) Abolition of the death penalty is a regular theme in Buddhism, as we shall see below. D. Rajaparikatha-ratnamala The Rajaparikatha-ratnamala or "The Precious Garland of Advice for the King"(48) is a treatise attributed to the famous South Indian Buddhist philosopher Nagarjuna (2nd or 3rd century AD).(49) In this work on Buddhist statecraft, Nagarjuna gives King Udayi of the Satavahana Dynasty advice on a variety of matters.(50) Here is how Nagarjuna handles capital punishment: ------------ 43. The Dhammapada, p. 197. 44. The jataka are reputed to be the stories of the former lives of the historical Buddha i.e., Gautama Siddhartha (563?-483? BC). Quasi-canonical in nature, the jataka are essentially folk tales that serve as a vehicle for popularizing Buddhism. See The Eternal Legacy: An Introduction to the Canonical Literature of Buddhism, pp. 55-66. 45. The Jataka or Stories of the Buddha's Former Births, Vol. 4, Bk. 12 (E.B. Cowell, ed.; W.H.D. Rouse, trans. 1957) pp. 109-11. 46. Kosala was a kingdom in central India with its capital in Savatthi, being modern day Saheth Maheth. S. Dhammika, Middle Land, Middle Way: A Pilgrim's Guide to the Buddha's India (1992), pp. 163-78. 47. The Jataka or Stories of the Buddha's Former Births, pp. 109-10. 48. Nagarjuna and Kaysang Gyatso [Dalai Lama VII], The Precious Garland and The Song of the Four Mindfulnesses (Jeffrey Hopkins et al, trans., 1975). 49. The Encyclopedia of Eastern Philosophy and Religion, pp. 237-38. 50. For an interpretation of the text and some background on King Udayi, see Robert A.F. Thurman, "Nagarjuna's Guidelines for Buddhist Social Action," in The Path of Compassion: Writings on Socially Engaged Buddhism (Fred Eppsteiner, ed. 1988); Robert A.F. Thurman, "Social and Cultural Rights in Buddhism," in P279 O King, through compassion you should always Generate an attitude of help Even for all those embodied beings Who have committed appalling sins. Especially generate compassion For those murderers, whose sins are horrible; Those of fallen nature are receptacles Of compassion from those whose nature is great.... Once you have analysed the angry Murderers and recognised them well, You should banish them without Killing or tormenting them.(51) Banishment or exile has been employed as a form of sanction in various pre-modern Asian legal systems.(52) Indeed, banishment has also been employed at times in the West.(53) Although banishment obviously entails psychological and physical hardships, it is certainly to be preferred to death. Moreover, it can protect the convicted defendant from the possible wrath of friends or family of the victim. E. Avatamsaka-sutra Another, albeit rather unusual, treatment of capital punishment comes from the lengthy(54) and highly symbolic Avatamsaka-suutra(55) which is also known as the Buddhavatamsaka-sutra. This sutra or -------------- Human Rights and the World's Religions (Leroy S. Rouner, ed. 1988), p. 148. A brief overview of the Satavahana Dynasty can be found in Rama Shankar Tripathi, History of Ancient India (1942), pp. 191-201; Etienne Lamotte, History of Indian Buddhism: From the Origins to the Saka Era (Sara Webb-Boin and Jean Dantinne, trans. 1988), pp. 474-81. 51. The Precious Garland and the Song of the Four Mindfulnessess, pp. 66-67. 52. See, e.g., Brian E. McKnight, The Quality of Mercy: Amnesties and Traditional Chinese Justice (1981). 53. To name but two historical examples of exile as a form of punishment, what are now the U.S. state of Georgia and parts of Australia were both used by the British Empire as penal colonies. 5 The New Encyclopaedia Britannica: Micropaedia (15th ed. 1989), p. 201; Europa Publications, The Far East and Australasia (1995), p. 78. A contemporary attempt at using this sanction is described in Peratrovich v. State, 903 P.2d 1071 (Alaska Ct. App. 1995). An alternative to banishment would be probation. It has been argued that this was a common type of sanction in maintaining monastic discipline among Buddhist monks and nuns. Crime and Punishment in the Buddhist Tradition, pp.76-77. 54. To put things into proper perspective, the Avatamsaka-sutra by itself is about as long as the whole Hebrew Bible. See generally, The Eternal Legacy: An Introduction to the Canonical Literature of Buddhism, pp. 221-35. 55. This sutra became the basis for an entire East Asian sect of Buddhism best known today by its Japanese name, Kegon. Shinsho Hanayama, A History of Japanese Buddhism (Kosho Yamamoto, trans. 1960), pp. 27-30. P.280 scripture tells the saga of a bodhisattva(56) named Sudhana-sresthidaraka,(57) or simply Sudhana. Sudhana is on a pilgrimage to visit various spiritual teachers whom he is told to seek out for guidance. One of the teachers is a king named Anala.(58) King Anala lives in an indescribably beautiful palace in a far off, magical land; yet, he does have a crime problem. To keep the populace in line, he conjures up frightful images of prisoners on which he passes judgement and then has brutally executed or otherwise severely tortured. In reality, the King does not harm anyone because the prisoners as well as the penal officers are all just illusions. As the King explains to the seeker, these magical projections are meant to be acts of compassion to get actual people to give up evil. Obviously, this passage is symbolic and should, therefore, not be taken literally. It does, however, point to the centrality of compassion in Buddhist legal and social thought. Admittedly, the passage could be literally construed to support capital punishment along with deterrence as a goal of penal policy,(59) but, again, the notion of compassion is more important here. In addition, the context must be remembered viz., this is an especially mystical text. F. Muga-Pakkha-Jataka This jataka, said to be told by the Buddha to his monks, illustrates that punishment can affect those who impose it as well as those being directly punished.(60) The Muga-Pakkha-Jataka(61) makes this point -------------- 56. A bodhisattva in Mahayana Buddhism is someone who has realized Enlightenment, but who vows to stay in this world to help others to realize Enlightenment. The Encyclopedia of Eastern Philosophy and Religion, pp. 39-40; A Concise Dictionary of Indian Philosophy: Sanskrit Terms Defined in English, p. 99. 57. The Japanese-English Zen Buddhist Dictionary, p. 847. 58. The author's account is based on The Flower Ornament Scripture, The Text: A Translation of the Gandavyuha, the Final Book of the Avatamsaka Sutra (Thomas Clearly, trans. 1987) , pp. 118-21; Li Tongxuan, Entry into the Realm of Reality, The Guide: A Commentary on the Gandavyuha, The Final Book of the Avatamsaka Sutra (1989), pp. 45-46. 59. Today deterrence is recognized as a legitimate consideration in the disposition of convicted defendants. See, e.g., Haw. Rev. Stat. Ann. $ 706-606(2)(b) (Michie 1994). 60. For example, this is one way of approaching Justice Blackmun's views on the death penalty in his rather personal dissent in Callins v. Collins, -- U.S. --, 114 S. Ct. 1127, 127 L. Ed. 2d 435, 62 U.S.L.W. 3546 (1994). See also, William J. Brennan, Jr., "Foreword: Neither Victims nor Executioners," Notre Dame J.L. Ethics & Pub. Pol'y. (1994), p. 1. It is noteworthy that Justice Blackmun has been described as being compassionate. Harold H. Koh, "A Tribute to Justice Blackmun," P.281 graphically. The story revolves around the young prince and only child of King Kasiraja named Temiya-kumaro, or simply Temiya. Temiya is an extremely sensitive child. One day when he is only a month old he is playing with his father, the King. The King is then called upon to judge four robbers. The King sentences the first to be whipped a thousand times, the second to be imprisoned in chains, the third to be killed by a spear, and the fourth to be impaled. Overcome by the karmic consequences of his father's actions and fearing what would become of him if he did the same after succeeding to the throne, Temiya refuses to speak or otherwise act like a normal child for the next sixteen years. Finally, Temiya solves his dilemma by becoming a recluse(62) and converting the royal household and many others. This story parallels the life story of the historical Buddha who grew up in a palace, but renounced the world in order to seek spiritual truth. G. Angulimala-sutta(63) The final text under examination is a famous sutra dealing with the power of rehabilitation.(64) The text is known as the Angulimala-sutta or the "Discourse with Angulimala."(65) It is a part of the ------------ Harv. L. Rev. (1994), pp. 20, 21-22. For a decidedly different view, see Mumia Abu-Jamal, Live from Death Row (1995), pp. 112-15. 61. The Jataka or Stories of the Buddha's Former Births, Vol. 6, Bk. 22, pp.1-19 For a look at the influence of this jataka on certain traditional legal texts in Southeast Asia, see "Sanction in the Theravada Buddhist Kingdoms of S.E. Asia," p. 345. 62. As an interesting aside, there was a Temiya-like character in early twentieth-century Korea. A Korean, who was working as a judge for the Japanese colonial regime in Korea (1910-1945), had to hand down a death sentence. He was so disturbed by what he had done that he simply disappeared by heading for the countryside, where he lived for a while as a peddler before becoming a Buddhist monk. Eventually, the ex-judge became a Zen master with the Buddhist name of Hyobong (1888-1966). Robert E. Buswell, Jr., The Zen Monastic Experience: Buddhist Practice in Contemporary Korea (1992), pp. 91-92; Mu Soeng (Sunum), Thousand Peaks: Korean Zen, Tradition and Teachers (1991), pp. 197-98. Hyobong's writings and life are more fully covered in Hyobong, Hyobong Orok [The Analects of Hyobong] (1975) [In Korean]. 63. The word sutta in the title is the Pali equivalent of the Sanskrit sutra. The Encyclopedia of Eastern Philosophy and Religion, pp. 342-43. 64. Rehabilitation is not a popular idea politically at the moment. See Mark Curriden, "Hard Time," 81 A.B.A. J. (July 1995), p. 72. 65. The translation which the author has used is 2 The Collection of the Middle Length Sayings (Majjhima-Nikaya) (Isaline B. Horner, trans. 1957), pp. 284-92. See also, Hellmuth Hecker, Angulimala: A Murder's Road to Sainthood (The Wheel Publication No. 312, 1984). P.282 Majjhima-nikaya, or Medium Length Discourses, of the Fali Canon. Here the reader meets a much-feared robber and murderer by the name of Angulimala(66) which literally means "Garland of Fingers." The namesake garland was said to have been made by using the fingers of his victims. Understandably, the locals are all afraid of Angulimala. Nonetheless, the Buddha, who is staying in the area at the time, insists on heading alone down the road where Angulimala is believed to be hiding. Through his unique persona, the Buddha manages to convert Angulimala and ordain him as a monk.(67) Meanwhile, the King, urged by the public, heads out with large entourage to find the evil Angulimala. He comes across the Buddha and explains his situation. The Buddha then shows him the reformed Angulimala living peacefully as a monk. The King is quite taken back by all this. He is amazed at how the Buddha was able to change Angulimala. This points to a Buddhist notion of rehabilitation. Naturally, rehabilitation and capital punishment are mutually exclusive concepts. Nevertheless, in strictly moral terms, Angulimala still had previously created considerable bad karma, and he would eventually die a painful, accidental death because of this. Yet, rehabilitation is clearly the main theme of this text.(68) Rehabilitation enables the convicted criminal defendant to realize his or her mistakes and to attempt to avoid them in the future. In Buddhist terms, a rehabilitated offender, even a murderer, will remember his or her Buddha-nature. For society, reforming a wrongdoer means regaining a productive member who can somehow contribute to the general welfare. III. BUDDHIST RULERS In the history of Asia certain rulers have eagerly embraced Buddhism. Many other rulers were Buddhist with a somewhat lesser ------------------ 66. The Sanskrit spelling of this name is Angulimalya. William Edward Soothill and Lewis Hodous, A Dictionary of Chinese Buddhist Terms: With Sanskrit and English Equivalents and a Sanskrit-Pali Index (1975) (1937), pp. 184, 302, 331, 454. 67. The tale of a latter-day Angulimala in the United Kingdom is told in R. V. Skelton, The Times (London) May 18, 1983, [1983] Grim. L.R. 686, No. 269/A/ 83. Mr. Skelton, who had been convicted of larceny and burglary several times, appears to have been equal to the task. See Michael Skelton, "An Official Meeting with a Most Remarkable Man," 58 The Middle Way (August 1983), pp. 99-100. 68. Although not as related to jurisprudence, a similar story featuring Angulimala and the Buddha set in a previous life can be found in the Maha-Sutasoma-Jataka. For a translation, see The Jataka or Stories of the Buddha's Former Births, Vol. 5, Bk. 21, pp. 246-79. P.283 degree of interest in the religion. As a result of their religion, some Buddhist rulers did away with the death penalty, while some did not. In the subsections that follow, the author has selected a few representative examples of Buddhist political leaders who had little use for the death penalty. A. ASOKA In discussing famous Buddhist political leaders, it is difficult to avoid making some reference to the Indian Emperor Asoka (269? -232? B.C.).(69) Asoka, also spelled Ashoka, ruled an empire that controlled a large portion of South Asia. He actively promoted Buddhism throughout his empire and beyond. Despite his fondness for the ideal of ahimsa and his apparent dislike of capital punishment, Asoka might (or might not) have retained the death penalty, and thus he possibly allowed some executions to take place. This has been a matter of some debate.(70) B. SOME OTHER SOUTH ASIAN RULERS An early Chinese pilgrim to India,(71) the monk Fa-hsien (337?-422?),(72) writes of an abolitionist Buddhist king: -------------- 69. See, Romila Thapar, Asoka and the Decline of the Mauryas (1961); Stephen Batchelor, The Awakening of the West: The Encounter of Buddhism and Western Culture (1994), pp. 3-15; Radha Kumud Mookerji, Asoka (1962) ; Fritz Kern, Asoka: Kaiser und Missionar (Willibald Kirfel, ed. 1956). 70. Sources holding that Asoka retained the death penalty include Asoka and the Decline of the Mauryas, pp. 79, 105, 176, and 202; R.G. Chaturvedi and M.S. Chaturvedi, Theory and Law of Capital Punishment (1989), pp. 4-5. For an alternative view, see K.R. Norman, "Asoka and Capital Punishment: Notes on a Portion of Asoka's Fourth Pillar Edict, with an Appendix on the Accusative Absolute Construction," J. of the Royal Asiatic Soc'y of Great Britain and Ireland (1975), p. 16. 71. Much of what we know of ancient Indian history comes from external sources notably, Chinese and Creek writers. For whatever reason, historiography was less highly developed in India than writing on topics like philosophy and religion. Of course, by relying on the works of such non-Indians one does need to be concerned about the varying linguistic abilities and the uncertain extent of local cultural and political knowledge possessed by these foreign observers. Moreover, an idealization of India may have occasionally influenced the writing of Chinese Buddhists. This could mean that some Chinese Buddhist pilgrims exaggerated the various bans on killing. See, e.g., D. Devahuti, Harsha: A Political Study (1983), p. 208. Harsha, or Harsa, was a North Indian emperor (r. 606-647) who is normally thought of as being a great Buddhist ruler much like Asoka. Nevertheless, at least one contemporary scholar has maintained that Harsha was really a Hindu. S.R. Goyal, Harsha and Buddhism (1986). In any event, in view of the fact that a number of Chinese pilgrims, over a P.284 The king [of Mid-India] governs without decapitation [i.e., capital punishment generally] or (other) corporal punishments. Criminals are simply fined, lightly or heavily, according to the circumstances (of each case). Even in cases of repeated attempts at wicked rebellion [i.e., treason],(73) they only have their right hands cut off.... Throughout the country the people do not kill any living creature, nor drink intoxicating liquor, nor eat onions or garlic.(74) The lack of a death penalty here is noteworthy when it is recalled that pre-modern societies often executed people for a wide variety of offenses.(75) Indeed, Mid-India holds up rather well even by today's standards, let alone those of many centuries ago. Hye Ch'o,(76) an eighth-century Korean monk, made a pilgrimage to India similar to Fa-hsien's, yet about three centuries later. He too describes Buddhist kings in central India who rule without resort to the death penalty: "The national laws of the five regions of India prescribe no cangue, beatings or prison. Those who are guilty are fined in accordance with the degree of the offence committed. There is no capital punishment."(77) -------------- significant period of time, wrote of bans on killing and capital punishment, it is probably safe to conclude that there were at least a few abolitionist kings in ancient India. Finally, there is also evidence that there may have been several abolitionist kings in parts of medieval Southeast Asia. "Sanction in the Theravada Buddhist Kingdoms of S.E. Asia," p. 346. 72. The author has relied mostly on James Legge, trans., "A Record of Buddhist Kingdoms: Being an Account by the Chinese Monk Fa-Hieh of his Travels in India and Ceylon (A.D. 399-414)," in Search of the Buddhist Books of Discipline (1965) (1886). The author has also consulted A Record of the Buddhist Countries (Li Yunghst, trans. 1957); The Pilgrimage of Fa Hian [sic] Remusat et al, trans. 1848); Travels of Fah-Hian [sic] and Sung Yun, Buddhist Pilgrims from China to India (400 A.D. and 518 A.D.) (Samuel Beal, trans. 1964) (1869) . See also Si-Yu-ki: Buddhist Records of the Western World -- Translated from the Chinese of Hiuen tsian (A.D. 629) (Samuel Beal, trans. 1969) (1884). 73. Treason is often treated as the most serious of all crimes. In the United Kingdom, for example, treason remains a capital offense while murder is not. A Concise Dictionary of Law, (20 ed. 1990), pp. 54-55, 420; Capital Punishment [1970] Crim. L.R. 65. 74. A Record of Buddhist Kingdoms: Being an Account by the Chinese Monk Fa-Hieh of His Travels in India and Ceylon, p. 43. 75. See, e.g., Ramaprasad Das Gupta, Crime and Punishment in Ancient India (1930); Lawrence M. Friedman, Crime and Punishment in American History (1993); Richard van Dulmen, Theatre of Horror: Crime and Punishment in Early Modern Germany (Elisabeth Neu, trans. 1990); J.M. Beattie, Crime and the Courts in England 1660-1800 (1986). 76. Some older Western works on Hye Ch'o have the Chinese characters in his name transliterated according to a Chinese pronunciation such as "Hui Ch'ao" instead of according to the standard Korean pronunciation of "Hye Ch'o." 77. Hye Ch'o, The Hye Ch'o Diary: Memoir of the Pilgrimage to the Five Regions of India (Yang Han-Sung et al, trans. and ed. 1980) pp. 40-41. P.285 Hye Ch'o found an almost identical situation in West India: "Here there is no cangue, beating, prison, capital punishment, and similar affairs."(78) A similar situation in another ancient land is described by the sixth-century Chinese pilgrims Sung Yun and Hui Sheng: [W]e entered Ouchang country (Oudyana). On the north this country borders on the Tsung Ling mountains; on the south it skirts India.... The king of the country religiously observes a vegetable diet.... After mid-day he devotes himself to the affairs of government. Supposing a man has committed murder, they do not suffer him to be killed, they only banish him to the desert mountains, affording him just food enough to keep him alive (lit. a bit and a sup). [In doubtful legal cases] after examination, the punishment is adjusted according to the serious or trivial character of attending circumstances.(79) Earlier we met King Udayi, the person to whom Nagarjuna addressed his treatise. As is all too often the case with pre-modern Indian history, there is precious little detailed information on the nature of King Udayi's reign, but it does appear to have been a gentle one. Presumably, Nagarjuna's advice was not completely ignored.(80) C. EARLY JAPANESE EMPERORS Pre-modern Japanese governments were often harsh on prisoners.(81) Even today Japan retains the death penalty.(82) Yet, there was a time when Japan did not have the death penalty.(83) In 724 AD, Emperor Shomu (r. 724-749), a devout Buddhist and follower of the Kegon -------- 78. Ibid., p. 44. 79. Travels of Fah-Hian and Sung Yun, Buddhist Pilgrims from China to India (400 A.D. and 518 A.D.), pp. 188-89. 80. "Nagarjuna's Guidelines for Buddhist Social Action," p. 129. 81. John Carey Hall, Japanese Feudal Law (Studies in Japanese Law and Government) (1979) (1906). 82. Amnesty International, The Death Penalty in Japan: Report of an International Mission to Japan, 21 February-3 March 1983 (1983), p. 2; Koichi Kikuta, "The Death Penalty in Japan: Why Hasn't It Been Abolished?" 1 Meiji L.J. (1994), p. 43. 83. It has been argued that a hoped-for elimination of the death penalty in Japan is fully consistent with the teachings of Japanese Buddhism. John M. Peek, "Buddhism, Human Rights and the Japanese State," 17 Hum. Rts. Q. (1995), p. 527. It is also worth noting that when Amnesty International visited Japan in 1983, the only major Japanese political party that had gone on record as opposing the death penalty was the Komieto, a generally conservative party with strong ties to a lay Buddhist movement named Soka Gakkai. The Death Penalty in Japan: Report of an International Mission to Japan, p. 17. P.286 School who built Todai-ji, a famous temple that still stands in Nara, forbade the use of the death penalty. This was during the end of the Nara Period (715-794). Likewise, there were very few executions during the Heian Period (794-1185).(84) D. DALAI LAMA XIII Thubten Gyatso, Dalai Lama XIII of Tibet (1876-1933), was the predecessor of the current Dalai Lama i.e., Tenzin Gyatso, Dalai Lama XIV (born 1935) . The Thirteenth Dalai Lama struggled to modernize Tibet and to maintain the country's sovereignty against the British and later the Chinese. He also reformed Tibet's feudal legal system. Among the changes was the abolition of the death penalty by about 1920. Before that time the Dalai Lama would avoid any direct involvement in cases of capital punishment because of his religious role.(85) IV. CAPITAL PUNISHMENT AND HUMAN RIGHTS IN OFFICIALLY BUDDHIST NATIONS Although in pre-modern times Buddhism managed to spread throughout virtually all of Asia,(86) most Asian countries with large Buddhist populations today have secular governments. Nevertheless, in contemporary Asia there are four nations that have Buddhism as the state religion.(87) These nations(88) are: Bhutan, Cambodia, Sri ---------- 84. Taitetsu Unno, "Personal Rights and Contemporary Buddhism," in Human Rights and the World's Religions (Leroy S. Rouner, ed. 1988), pp. 129, 146; Junjiro Takakusu, The Essentials of Buddhist Philosophy (Wing-tsit Chan and Charles A. Moore, eds. 1956), p. 112. Apparently, executions in Japan finally resumed once the fairly peaceful Heian Period began to give way to the great political and social unrest of the Kamakura Period (1192-1336). A History of Japanese Buddhism, pp. 68-70. In particular, a series of executions are known to have taken place in the year 1156. These executions were the outcome of clan warfare. George Sansom, A History of Japan to 1334 (1958), p. 256. 85. Franz Michael, Rule by Incarnation: Tibetan Buddhism and Its Role in Society and State (1982), pp. 70, 109. For a glimpse of the traditional Tibetan criminal justice system, see Rebecca Redwood French, The Golden Yoke: The Legal Cosmology of Buddhist Tibet (1995), pp. 315-25. 86. See, e.g., Kenneth K. Inada, "A Buddhist Response to the Nature of Human Rights," in Asian Perspectives on Human Rights (Claude E. Welch, Jr. and Virginia A. Leary eds., 1990), p. 91. 87. For this section the author has generally drawn upon the following sources: Letter from Amnesty International (London) to Damien P. Horigan (Sept. 19, 1995) (on file with author); Barbara Crossette, So Close to Heaven: The Vanishing Buddhist Kingdoms of the Himalayas (1995), p. 178; Adrian Karatnycky et al, Freedom in the World: The Annual Survey of Political Rights & Civil Liberties 1994-1995 (1995); P.287 Lanka,(89) and Thailand. Bhutan, which lacks a true written constitution, follows Mahayana or, more accurately, Vajrayana Buddhism, whereas the other three all follow Theravada Buddhism. Of the four nations, only Sri Lanka has a republican form of government. The remaining three are all kingdoms with varying degrees of popular representation. How do modern governments that claim some official connection with Buddhism approach the issue of capital punishment?(90) Currently, of the four nations, only Cambodia has clearly eliminated the death penalty. This recent reform has been enshrined in Article 32 of The Constitution of the Kingdom of Cambodia (1993).(91) Capital punishment remains on the books in Bhutan and Thailand alike. However, both King Jigme Singye Wanchuk of Bhutan and King Bhumibol Alduyadej (Rama IX) of Thailand have been following a policy of commuting death sentences. Apparently, official executions have not taken place in either country for a number of years. This is a welcomed development. Hopefully, the governments of Bhutan and Thailand will each see fit to formally outlaw capital punishment in the near future.(92) ---------- Constitutions of the Countries of the World (Gisbert H. Flanz, ed. 1995); The Far East and Australasia 1995; Terence Duffy, "Toward a Culture of Human Rights in Cambodia," 16 Hum. Rts. Q. 82 (1994); Humana, supra note 1, passim; Edward Lawson, Encyclopedia of Numan Rights (1991); Roger Hood, The Death Penalty: A World-Wide Perspective, A Report to the United Nations Committee on Crime Prevention and Control (1990); Buddhist Trends in Southeast Asia (Trevor Ling, ed. 1993). 88. For the purposes of this section, the Dalai Lama's Tibetan government in exile, based in Dharamsala, Himachal Pradesh, India, will not be considered a nation. 89. Sri Lanka remains officially Buddhist despite some Western reports to the contrary. Letter from the Embassy of the Democratic Socialist Republic of Sri Lanka (Washington, D.C.) to Damien P. Horigan (Oct. 30, 1995) (on file with author). Some of the confusion in this area arises due to what exactly is meant by the term "state religion." Although other religions are protected constitutionally, Buddhism is specially recognized in the Sri Lankan Constitution. Chapter II, Section 9 of the Sri Lankan Constitution reads: "The Republic of Sri Lanka [sic] shall give Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana [Buddhism], while assuring to all religions the rights granted by Articles 10 and 14(1) (e) ." Constitutions of the Countries of the World, Binder XVIII. 90. Virtually every nation in Asia has a serious human rights problem. Extrajudicial killings, civil wars, torture, and censorship are tragic realities of the region. For the purposes of this article, however, the author will concentrate on legal killings. 91. For an English version of this constitution, see Constitutions of the Countries of the World, Binder III. 92. Thailand could amend its constitution. In Bhutan this could presumably be carried out by means of some sort of royal decree. P.288 Sri Lanka stands out as the most disappointing of the four. The Sri Lankan government actually appears to be moving toward increasing use of executions." As it should be clear by now, such practice is hard to justify from a Buddhist point of view. If the Sri Lankan government takes its Buddhism seriously, then it should, at very least, reduce the number of executions being carried out.(94) V. CONCLUSION An abolitionist stance on capital punishment finds strong support in Buddhist thought and history. Compassion fosters a deep respect for the dignity of all forms of life. The lives of convicted criminal defendants do have value. Society should strive to rehabilitate all prisoners to enable them to awaken to their inherent potential for goodness and spiritual growth. Capital punishment is anathema to rehabilitation. One obviously cannot rehabilitate a dead inmate. Furthermore, retribution, which would arguably be the strongest reason for retaining the death penalty, is not in keeping with the compassionate spirit of Buddhism. That Buddhism should speak out against capital punishment is significant because Buddhism is a world religion in its own right. Buddhism has had a profound impact on the major civilizations of Asia. Moreover, Buddhism enjoys a modest yet growing presence in the United States and elsewhere outside of Asia.(95) Finally, an American Buddhist perspective on the death penalty can help inform the ongoing debate surrounding capital punishment among Americans, much as Gandhian ahimsa has positively influenced some Christians and non-Christians in the United States to strive for racial harmony and social justice. ---------- 93. See, e.g., "Hard Core Criminals will be Hanged," Sri Lanka Express (Arleta, CA), July 14, 1995, p. 3. For a general history of political violence in Sri Lanka, see Stanley Jeyaraja Tambiah, Buddhism Betrayed?: Religion, Politics, and Violence in Sri Lanka (1992). 94. Some Sri Lankan Buddhists have gone on record as opposing capital punishment. See Sri Lanka Foundation, Human Rights and Religions in Sri Lanka: A Commentary on the Universal Declaration of Human Rights (1988), p. 23. 95. See generally, The Awakening of the West: The Encounter of Buddhism and Western Culture, p. 69.