The death Penalty in China

Tuesday, Aug 19, 2008

With the commencement of the 2008 Beijing Olympics, the international spotlight has been trained on China, for its athletic prowess and much more. Not surprisingly, I found myself at a seminar on “China’s Death Penalty: Laws and Practices” conducted by Dr. Lu Hong, which culminated in an examination of the future prospects of the death penalty in China.

Whether this is a consequence of China opening up to international attention or a reaction to China’s unprecedented and spectacular hosting of the Summer Olympics, the fact of the matter is that China is undergoing reform as she continues to play a greater role in the world stage. From her ratification of the International Covenant on Economic, Social and Cultural Rights in 2001, and a pending ratification of the International Covenant on Civil and Political Rights, to increased civic awareness through movements such as the peaceful protest against the construction of a petrochemical factory and oil refinery in Chengdu, there are many indicators of China’s development.

Tasteful or not, as one member of the audience was kind enough to sound out, the issue of killing, more commonly referred to as the death penalty, also falls under review in the bracket of progress. (One might have to hope though, that this is not too inauspicious a period to bring this topic up since this coincides with the seventh month in the lunar calendar, the month of the Hungry Ghosts, where spirits are said to be aplenty. )

China has consistently been ranked among the top 5 or 6 countries in the world contributing to the majority of executions in a year, according to Amnesty International, a worldwide human rights body. These deaths account for a wide range of capital offences, including economic crimes such as corruption and crimes against symbols and treasures of state, such as theft of cultural relics and killing of pandas, which have been criticised as “arbitrary”i . It is no wonder that there have been increasing calls for the death penalty to be abolished, or restricted to more severe crimes of violent character. At a conference organized by the law institute of the Chinese Academy of Social Sciences and the Danish Institute of Human Rights in January 2003 with both Chinese foreign scholars and foreign specialists taking part, not only did legal experts push strongly for the need to limit the use of capital punishment, but also argued for abolition as the ‘mark of a “civilized society”
’ ii.
China is also realizing the increasing need to allay international criticism of its human rights record to better manage foreign relations as it continues to extend its reach of influence. Dr. Liu Renwen, a researcher with the Chinese Academy of Social Sciences, has identified China's death penalty as being an obstacle to international and regional criminal judicial administration and cooperation, as the European Commission and some countries which have abolished the death penalty forbid the extradition of criminals to their home countries if they would face the death penalty there.

Yet, with the current reliance on capital punishment, is China ready for the abolishment of the death penalty, or would China do better to first take steps to reduce the use of death sentencing?
Most proponents of the death penalty cite the importance of capital punishment as a deterrent. While there are no known studies on the deterrent effect of the death penalty, a number of public surveys have shown that 60-80% of the Chinese are in favour of the death penalty. Officials have come to cite public opinion in support of the reformist movement. This also comes in defense of China’s notorious “strike-hard”（严打） campaigns which aim to warn the public against committing certain crimes whereby the courts adopt an “act fast, act hard”（从中从快） stance against a particular crime and hands down punishment more severely and quickly, as it reflects a certain amount of confidence in the death penalty to help deter crimes.
In addition, China has had a long history of taking punitive measures to enforce law and order, resulting in a societal mindset that might take another few decades to overturn. These have long been targets of criticism by the abolitionist camp, which emphasise human rights and humanist values, and there are signs that China is more than willing to undo the hive of negative opinion, if not for her own civilization.

China has been developing its death penalty policies, building on the policy of “kill less, kill cautiously” (少杀慎杀), present since 1949, to the current one to “preserve the death penalty, but use it cautiously”（不可不杀，不可滥杀，不可误杀）. While affirming the latest policy, China’s chief justice Xiao Yang also reiterated the need to “continue to follow the policy of being both strict and lenient according to the actual situation of the cases, and show leniency to the convicts who only committed minor offenses or merited milder punishment and even exemption of punishment”
iii.
This came along with the announcement that the Supreme Court had taken back the authority to review and approve death sentences from the local courts in 2006, in a bid to clean up the country’s embarrassing record of executions, and enforce a greater level of fairness and consistency. Other evidence of a concerted effort to improve the system include an overwhelming number of cases coming under review, forcing the supreme courts to increase its employment of judges in the criminal division by six fold.
China’s chief justice also pinpointed a possible step in alternative to doing away with the death penalty in China’s existing laws, namely the decision on whether death penalty will no longer be applicable to certain kinds of crimes. Out of the 68 capital offences, a third is rarely used, and another third involve non-violent crimes.

This would lead to other areas of consideration of greater “material civilisation”, or greater social productivity, so that the country will be able to sustain long term imprisonment should the death penalty be gradually abolished for more and more crimes.

However, this remains an uncertain vision as China’s judicial system would have to tackle an array of issues within the system. From removing outdated conventions such as having overseas connection as a mitigating condition for offenders and a heavy reliance on confessions as the primary means of conviction, to engaging in greater use of ‘objective data’ through science and technology, such as the use of DNA tests, the Chinese can work towards reducing the number of miscarriages of justice.

Additionally, China’s officials and academia could afford to provide a more comprehensive picture of the crime distribution in the country by releasing and compiling more data for more reforms to be proposed. Experts have suggested that this might come about following the reforms to reduce the number of death sentences as China might be less embarrassed to reveal its records. On the other hand, with there being only two countries in the world, namely the United States and Japan, to release such data, China might not feel the need to place itself under such scrutiny. What is crucial though, is that the legal records and procedures in the country be consolidated. Allowing disclosure of trial information and opening trials to the public could be a step towards more systematic processing and recording even if the latest reform of giving the supreme courts final authority makes it hard to coordinate data.

Despite the positive steps that China has taken in its reform process, there are still more problems that the legal sector in China need to tackle hands-on, such as ensuring greater consistency in its court sentencing and eliminating outdated practices before the discussion on the abolitionist movement can proceed.

At the same time, while focusing on making reforms within the legal system with regard to the death penalty, China can also take small steps towards reducing the need for death sentencing. With Confucianism being ‘rediscovered’iv in China, there is hope that Chinese society might shift away from using the law as a methodical standard for behaviour in society towards individual development an attainment of greater “spiritual civilization”.

Notably, even as the debate over the death penalty falls under a single jurisdiction of reforms taking place in China, there will no doubt be an impact on her continued growth, as well as her national and international security.

i.Grayling, A.C. “Why China should not get the 2008 Olympics”,http://www.acgrayling.com/china.html
ii.The Guardian,2003, “China questions death penalty”,http://www.guardian.co.uk/world/2003/jan/15/china.johngittings
iii.Xinhua, China Daily, 2006, “China’s policy is to preserve death penalty”,http://chinadaily.cn/english/doc/2006-03/12/content_533247.htm
iv.IHT, 2006, “China’s leaders rediscover Confucianism”,http://www.iht.com/articles/2006/09/14/opinion/edbell.php
Author: Yu Shan
About the author:
Tay Yu Shan is an undergraduate at King's College London and an intern at the Singapore Institue of International Affairs.