China – Death Penalty Policies and Practices in China: Progress and Challenge

Death Penalty Policies and Practices in China: Progress and Challenge

Prepared for the 6th World Congress Against the Death
Penalty, June 21-23, 2016
Bin Liang, Ph.D./J.D.
Department of Sociology
Oklahoma State University-Tulsa
700 North Greenwood Avenue, Main Hall, 2223, Tulsa, OK 74114, USA
E-mail address: bin.liang@okstate.edu

 

Unique Features of the book, “DEATH PENALTY IN CHINA – POLICY, PRACTICE AND REFORM”

  • It is the first edited English book on China’s death penalty, a total of 12 Chapters
  • It is a collective effort by scholars and experts from five countries and four continents (Europe, Australia, Japan, the United States, and China)
  • It covers a number of extremely understudied topics in this field such as the roles played by public opinion and the media in China’s struggle with its death penalty practice
  • Empirical data: Domestic scholars from China managed to collect invaluable information (though non-systematic) through their unique methodologies (e.g., analysis of judicial documents, analysis of individual death sentence cases). These empirical data
    allow them to address their issues in-depth, and such empirically-based discussions allow the Western audience to gain a glimpse of the actual situation regarding China’s death penalty practice
  • Through a comparative approach, many studies in this collection situate their examination of China’s case in a broader spectrum and compare China’s practice and experience with that of other nations/societies. As a result, the audience will be able to relate what is ongoing in China with their own experience and knowledge about their own nations

 

Progress (1): Legislative Actions

  • 2012: the Criminal Procedure Law was revised, and new measures were adopted to strengthen criminal defense: e.g., adopting exclusionary rules against evidence illegally obtained through torture (e.g., Articles 50, 53, 54), and mandating that interrogations of criminal suspects be recorded or videotaped for suspects facing a potential death sentence or life imprisonment (Article 121);
  • 2011: the 8th Amendment of the 1997 Criminal Law was adopted: 13 capital offenses abolished, with 55 death-eligible offenses remaining; exempted seniors (above 75 years of age at trial unless the murder was “cruel and unusual”) (Article 49)
  • 2015: the 9th Amendment of the Criminal Law was adopted: abolished nine more capital offenses, with a total of 46 remaining! Example: the 9th Amendment to the Criminal Law
  • Nine crimes are no longer death-eligible (rarely utilized in practice)
  • Smuggling weapons and ammunitions (Article 151)
  • Smuggling nuclear materials (Article 151)
  • Smuggling counterfeit currencies (Article 151)
  • Counterfeiting currency (Article 170)
  • Financial fraud (Article 199)
  • Organizing another person to engage in prostitution (Article 358)
  • Forcing another person into prostitution (Article 358)
  • Obstructing commanding officers or on-duty servicemen from carrying out their duties (Article 426)
  • Fabricating rumors to mislead people during wartime (Article 433)

 

  • A total of 46 death eligible offenses now!

 

Progress (2): Judicial Actions via the Supreme People’s Court (SPC)

  • 2001-2002: Implementation of legal injection nationwide (being officially portrayed as “humane and scientific” and not challenged);

 

  • 2005: mandating open-court appellate trial (i.e., trials of second instance) of death penalty cases after July 2006;
  • 2007: the SPC took back the final review and approval power in death penalty cases;
  • 2010: jointly issued the Rules on Certain Issues Concerning Examination and Judgment of Evidence in Death Penalty Cases and the Rules on Certain Issues
    Concerning the Exclusion of Illegal Evidence in Criminal Cases

 

  • Since 2010: the guiding case system by the SPC, to provide sentencing guidance to lower courts;
  • The effect: sources showed that the number of executions decreased in recent years, especially after 2007;

 

Progress (3): Other Players

  • Emerging diverse opinions
  • Scholarly debate on abolition and gradual reduction of the use of the death penalty
  • Media reporting of wrongful convictions/executions
  • Expression of public opinions via technology (e.g., online comments, blogs/microblogs, wechat)
  • Impact of controversial individual cases

 

  • Wrongful convictions pushed for reform measures (e.g., measures against torture)
  • Other controversial cases helped formalize legal procedures (e.g., procedure to halt executions, to arrange last family visit before executions)

 

Progress (4): Special Update on Corruption

  • The 9th Amendment (2015): DP applicable to (1) embezzlement and (2) bribetaking cases, when “the amount involved is extremely huge, which caused extreme damage to national and people’s interests” (Articles 383 & 386)

 

  • SPC, the Sentencing Guidelines on Embezzlement and Bribe-taking Cases (internal), November 2, 2015: raise the amount threshold to 100 million yuan: generally, life imprisonment for cases with less than 100 million yuan; suspended DP for cases above 100 million yuan (while immediate execution available in extreme cases)
  • SPC and the Supreme People’s Procuratorate (SPP), Interpretation on Issues with regard to How to Handle Embezzlement and Bribe-taking Cases, April 18, 2016: lower the amount threshold to 3 million yuan (= “extremely huge amount” in the 9th Amendment); DP also applicable to cases with an amount of 1.5 million yuan coupled with other “extremely severe circumstances”
  • Compared to: 50,000 yuan (embezzlement) /10,000 yuan (bribe-taking) (1988-1997); 100,000 yuan (1997-2015);

 

  • The 9th Amendment (2015): first ever Life Imprisonment Without Possibility of Parole (LWOP), applicable to embezzlement and bribe-taking (Articles 383 & 386), optional after the 2-year reprieve period (i.e., suspended DP);

 

Challenge

  • Active use in a variety of crimes: e.g., a sample of cases reported in 2015, covered homicide, robbery, assault, drug offenses, sex offenses, corruption cases, endangerment of public security (e.g., explosion, terrorist attacks, criminal gang-related activities, drunk-driving), arson,
    kidnapping, abducting children, counterfeiting currency (abolished by the 9th Amendment);
    • Lack of transparency and information/data

 

  • Criminal justice policy: e.g., presumed deterrence effect (coupled with lack of empirical studies), retribution, to appease public indignation (e.g., corruption cases)
  • Politicization of the death penalty: e.g., influence and/or intervention by the government; lack of judicial independence;

 

  • Seemingly overwhelming public support: with reservations;

 

What to Expect and How to Move Forward

  • The legislature: shrink gaps between China’s practices and international standards: e.g., still no exemption for new mothers and mentally insane individuals; lack of presumed innocence; no right to remain silent; no double-jeopardy protection, no clemency right;
  • The judiciary: to replace immediate executions with suspended death sentences: e.g., creative measures such as “cash for clemency”;

 

  • LWOP as an alternative?

 

  • Difficult to see the “end”, but gradually moving towards the “end” (hopefully);

 

 

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