Strict Restriction on death Penalty and its Paths in China

According to the latest statistics by the Amnesty International, by the end of January 1 2003, there were 76 countries ( including regions) whose laws do not provide for the death penalty for all crimes; 15 countries ( including regions) whose laws provide for the death penalty only for exceptional crimes under millitary law or crimes committed in exceptional circumstances such as wartime; 21 countries ( including regions) that abolished the death penalty in practice ( i.e. they have not executed anyone during the past ten years, and they firmly believe the policy of no execution will continue or they have made committment to the international society that they will not use the death penalty in the future). All above amounts to 112 countries, including United Kingdom of Great Britain, France, Germany, Canada, Australia, Italy, South Africa and Russia. Correspondingly only 83 countries retain and use the death penalty. [1]

However, differences exist even in the countries that still retain the death penalty. More and more countries are tending to strictly restrict the death penalty, one of the manifestations is a great induction in the provisions for the death penalty in legislation, limiting imposition of the death penalty only to extremely serious crimes such as murder, treason and crimes committed in wartime。Another manifestation is the strict limitation of the death penalty in judicial practices, i.e., only few or even one death sentence has been imposed or executed in some countries, and only one death penalty has been executed for past several years in some other countries. For example, Japan executed one to two capital criminals in maximum each year, who are all severe murders; South Korea has not executed any capital criminal in recent years.

In 2002, among the 83 countries which have not abolished the death penalty, only 67 countries pronounced the death sentence. And among the 67 countries which pronounced the death sentence, only 31 countries executed the death penalty.

At the moment, among the big countries, only United States, Japan and India retain the death penalty in addition to China. The application of the capital punishment in Japan has been mentioned above. The use of the death penalty in India is also subject to strict restriction. Take an example, during the 3 years from 1982 to 1985, there were 35 executions in total, with average less than 12 executions each year; while during the 5 years from 1996 to 2000, there were altogether 49 executions with the average less than 10 executions each year, this figure is rather low considering that India is the second largest country in population. The situation in the United States is rather complicated. At the moment, 12 states have abolished the death penalty and 38 states still retain the death penalty. Generally speaking, these 38 states hold strict limitation on the application of death sentence. For example, majority of them provide only severe murders (usually first degree murders) may be imposed the death penalty. In the United States, the judicial procedures are quite complicated to impose the death sentence on the offenders. In order to decrease miscarriage of justice and assure the rights of those facing the death penalty, the Administration does not hesitate to spend large amount of money in judicial practice. During the recent years, the application of the death penalty in the United States was obviously decreased due to the pressure from foreign and local human rights organizations. For example, in 1999 there were 98 executions and in 2001 there were only 66 executions.[2] In 2002, the U.S. Supreme Court ruled to prohibit the use of the death penalty for the mentally retarded; in the same year, the county sheriff of Illinois ordered suspending all the death sentence executions due to the conclusive evidence showing the miscarriage of justice; also following those in the same year, the county sheriff of Maryland declared suspending execution of all death sentences before adequate resolving of the problems in racial and geological discrimination in capital sentence judgments disclosed by relevant researches.[3]

In summary, a worldwide movement for restriction and abolition of the death penalty is developing unprecetedently, just as pointed out by some scholars after delicate study: “from 1965 to 1988, averagely about one country abolished the death penalty each year; while from 1989 to 2001, about 3 countries abolished the death penalty each year averagely. Furthermore more and more countries abolished the death penalty for all crimes at one time, quite different from the previous practice that firstly abolished the death penalty for the ordinary crimes and then abolished the death penalty for all crimes. In addition, the movement for abolishing the death penalty is developing across different regions: among 25 countries which abolished the death penalty in 1965, only two of them are from other countries rather than West Europe and Middle and South America; while in 2001, the countries which abolished the death penalty not only from East Europe, but also from Africa and Pacific Islands. For example, 11 African countries abolished the death penalty for all crimes, and additional 11 African countries abolished the death penalty in practices; 11 Pacific Island countries abolished the death penalty for all crimes and 4 Pacific island countries abolished the death penalty in practices. Although the movement for abolishing the death penalty develops comparatively slowly in Asia, there are 2 countries abolished the death penalty for all crimes; additional 6 countries abolished the death penalty in practices(taking no execution of death sentences in the past 10 years as the standard). The most important thing is that this worldwide movement for abolishing death penalty finds no sign of slow pace in the new century.”[4]

By- Effects of Over Use of the Death Penalty

Compared with the worldwide movement for abolishing the death penalty, the application of the death penalty in China is undoubtedly higher, which will consequently produce a series of by-effects.

Firstly, it is likely to produce isolation from international community and impair socialist image of our country. Socialist originally shall mostly respect human rights and human life, thus it is not quite convincing that if considerable death sentences or even majority death sentences exist in China. We might argue using our usual logic: the imposition of the death penalty is to protect human rights of more people. This argument has little ground in today’s world because more and more countries can maintain social stability and public security without resorting to the death penalty.And in contrast, no evidence has shown that social stability and public security in countries retaining the death penalty are better than those in the countries which have abolished the death penalty or which have strict limitation on the death penalty.

Secondly, it is disadvantageous to international and regional criminal judicial cooperation. Now the EU has prohibited extraditing criminals who might be confronted with the risk of death penalty, and other countries that have abolished the death penalty also hold similar attitude. For instance, after the smuggler Lai Changxing fled to Canada, Canada administration refused to grant extradition by taking the excuse of the risk that Lai will be exposed to a capital sentence. This bring us into a deadlock: if we did not committe no imposition of the death penalty, Canada will not grant extradition; if we committed no imposition of the death penalty, it will make Chinese criminal law awkward because some other criminals in the case whose circumstances were not so seriously have been executed according to it.[5] In addition, Hong Kong and Macao, two special administrative regions under “one country with two systems”, have already abolished the death penalty. As a result, same crime involving Hong Kong and Macao will be rendered different verdicts if the case is to be heard separately in Mainland and in Hong Kong or Macao. Therefore, confusions in understanding and other bad effects are easy to produce.

Thirdly, over use and abuse of the death penalty will not only nurture blind faith in the function of death penalty of the authority, who will ignore basic works of public security and social adminstration and ignore variety and complexity of the crimes, but also be unfavorable to the construction of a healthy and humanitarian culture in the whole society and the establishment of the concept of respecting human life. The over use of the death penalty will lessen the impression and feeling, and its deterrent functions will inevitably be gradually decreased.

Fourthly, since miscarriage of justice is inevitable, risks increases with more imposition of the death penalty and the consequences are impossible to be retrieved once the wrong verdicts is rendered. This is compounded by the discrimination in races and geology for application of death penalty plus difference in affordability of those convicted of the death sentence in engaging defense lawyers. All the ruling classes from the ancient time know clearly that over application of death penalty is not favorable for long period of peace and stability.

Some Misunderstandings Need to be eliminated

The first misunderstanding is unilaterally emphasizing the special situations in China. Even the developing countries such as India with severe social contradictions caused by racial, religious and surname conflicts can put strict restriction on the use of the death penalty, the transitional countries such as Russia and South Africa, who are also under high pressure for maintaing the public security and high appeal for retaining the death penalty by the general public have abolished the death penalty, Have we to rule our country by the virtue death penalty? Are there no more scientific methods and ways?

The second misunderstanding is the blind faith in the deterrence function of the death penalty. For this, we need to mention two points: (a) if we have truly established the ideal that life is supreme and invaluable, then we have no reason to impose the death penalty for the economic crimes and non-lethal crimes. What else can be equivalent to human life? Even if the death penalty has deterrent functions, we can not prevent non-lethal crimes by taking persons’ life. That humanity shall be prior to utilitarianism should be a base line. Or it will be very hard for us to explain why the corporal punishment and the tortures once widely adopted such as cutting hands of the thieves finally abandoned by the history, and why the uncivilized execution methods such as parading criminals through streets and exposing carcass of executed criminals to the public were also abandoned by history, since only from the point of deterrence function, at least we shall believe rather than not believe. (b) how is the deterrence function of the death penalty? Are there any substitutes? The United Nations concluded after the two investigations on the relations between the death penalty and homicides in 1988 and in 1996 that no evidence supported that deterrence of the death penalty is greater than life imprisonment.[6] It is not hard for us to understand the investigation results: from the view of special prevention, life imprisonment can deprive the capacity of committing crimes again; from the view of general prevention, with the decreasing severity of the criminal punishments, life imprisonment becomes the most severe punishment and the deterrence of imprisonment for one’s whole life is not lighter than the death penalty. Furthermore, the experiences from the countries that have abolished the death penalty showed that abolishing the death penalty would not lead to increases in crime. For example, in Canada, in 1975 (the year just before the country abolished the death penalty), murder rate is 3.09 persons/ per 100，000，while in 1980 that decreased to 2.41persons，and in 1999(the 23th year after the death penalty was abolished) the murder rate dropped to 1.76 persons，43% lower than that in 1975.[7] In contrast, the situation in China shows that the increasing application of the death penalty has not resulted in the decreasing in the crime rate. For example, there were 20298 wounding crimes in 1982. The figure increased to 64595 after including the death penalty for wounding crimes in 1983, increased by 3. 18 times；there were 14404 severe burglary crimes in 1982, and it increased to 301848 after including the death penalty for burglary crimes in 1983, increased by 20.66 times。[8] In 1997 when China abolished the death penalty for ordinary burglary at the time of revising the Criminal Law,[9] many people worried that burglary would increase in germination, but the facts did not prove this concern. The judicial practices showed that the burglary rate is basically as same as that in the previous years.

The third misunderstanding is that general public support the death penalty, “no execution of the capital crimes can not comfort the general public”. For a long time, it seems that we have been used to proving the legitimacy of any policy by virtue of “in the name of the general public ”and “advocacy and support of the general public”. Nevertheless a British scholar whose translated name is called Akedun could enlighten us by his famous words: “oppression by the minority is evil, however, oppression by the majority is even more evil. Since if the forces accumulated in the general publics were awakened, the minority would not be able to resist them. In the face of absolute will of all people, they would have no resources, no assistance and no escape. ”[10] Another example which can give us hint is that the general public hope pay less or even no tax, can the central government listen to them unilaterally? It is obvious that state shall not listen to them unilaterally, on the contrary, the state shall even take the responsibility of leading them to rational considerations.[11] Some researches showed that the public opinions polls found support for the death penalty without alternative punishment, the respondent thought that without the death penalty the offenders will return to the community and live together with them after a short period of imprisonment and they, even the strongest abolitionists will support the death penalty. However when asked about support for the death penalty given alternative punishment, the support for death penalty plummets (decreasing from 70% to53%).[12] We can see that the understanding of the death penalty by the general public can be changed to certain extent. It is worth noticing that at the moment the crimes which may be imposed on the death penalty are not all severe crimes like crime of “no execution of the capital crimes can not comfort the general public”, some economic crimes and property crimes are not severe crimes which caused discomforts in the general public. A further point I want to mention is that the abolition of death penalty in some countries were not based on the public opinions.In 1981 when France abolished the death penalty, 62% of the general public opposed to abolishing the death penalty, however the government pushed forward to the abolition of the death penalty by virtues of firm “political will”. At the time of debating on the Act for abolishment of the death penalty by the senates, the supporters of the death penalty demand general referendum, while opponents of the death penalty refuted that according to the constitution, the senates elected by the electorates have the right to decide to abolish or retain the death penalty, thus the Act for abolishing the death penalty was adopted.[13]

Strict Restriction on death Penalty

What is “strict limitation of the death penalty”? It is necessary to set up a basic platform here, that is, from the point of the supremacy of life, the death penalty for all non-lethal crimes, especially nonviolent economic crimes (economic crimes here has a broad sense, it not only refers to crimes of disrupting the order of the socialist market economy, but also include property crimes such as burglary and offence of dereliction of duty such as embezzlement and bribery )shall be abolished as early as possible, this is the minimum requirement by the United Nations for the countries which still retain the death penalty. That is, the general principle of the United Nations is to abolish the death penalty, however the United Nations retreated and set the minimum requirement for the countries which have not abolished the death penalty. “In the countries which have not abolished the death penalty, sentence of death may be imposed only on the most serious crimes”[14]. China has signed the International Covenant on Civil and Political Rights and is making preparations for ratification and thus China is obliged to comply with the Covenant. What is the “the most serious crimes”? According to the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty adopted by UN Economic and Social Council, their scope shall not go beyond intentional crimes with lethal or other extremely grave consequences. Although the vague expression “other extremely grave consequences” in the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty leaves more space for broad interpretations by many countries, the sixth five- year report on Capital Punishment and Implementation of the Safeguards Guaranteeing Protection of the Rights of Those Facing Death Penalty by Economic and Social Council also states: “lethal or other extremely grave consequences means resulting in loss of life or endangering life”[15]. Furthermore, the decision made in 1999 by the Human Rights Committee which is established by the International Covenant on Civil and Political Rights urges the countries which have not abolished the death penalty not to apply the death penalty for the economic crimes, this also represents that economic crimes does not fall into the category of the “the most serious crimes”[16] in the Covenant.

I do not think it is a hard task to abolish the death penalty for economic crimes and other non-violent offences, even to restrict the death penalty only for the serious murders, the key relies upon “political will” of our leadership. From the viewpoint of the general public, the main barrier to the abolition of the death penalty originates from the traditional culture with a strong retribution notion such as “a life for a life and an injury for an injury”. However there will not be strong resistance to abolishing the death penalty for the non-violent economic crimes. If relevant state organs promoted adequate advocacy and explanations, Chinese citizen will fully understand this. From the perspective of the Chinese Government, no matter how furious this kind of non-violent crimes, it will not shake the foundation of our regime and we can attain the goal of punishing these crimes through the application of freedom punishment, property punishment and qualification punishment. We shall also notice that on one hand the criminals shall take major responsibilities for their own offences, on the other hand the inadequacies in different management procedures and systems and unequal distribution of social wealth in the transitional period in our country are important factors for inducing and stimulating these crimes, which the State shall bear corresponding responsibilities. The imposition of the death penalty actually means the Country shift all the responsibilities to the offenders, which is not only inhuman but also unfair. To certain extent criminals relating to burglary and corruption are unlucky. They also want to lead a dignity life. However, they can not restrain from committing crimes under certain conditions exerting negative and irresistible influence on their behavior and physiology. This also represents the limited function of the death penalty in curbing crimes. For example, just one month after Guan Zhicheng, the ex-General Manager assistant of the Capital Iron and Steel Company and Party Sectary of Beijing Iron and Steel Company, was executed for corruption of RMB 82,000 and bribery of RMB 1.418 million, Yang Liyu and Zhao Dongxiang, the newly promoted successors , committed crime for bribery of more than RMB1.5 million in such a short time.[17] Similar cases repeatedly remind us the fundamental approach lies in the system construction, not in the severity of the punishments.

At moment, implementing “strict limitation on the death penalty” shall focus on the following three aspects: (a) Criminal policy, which not only includes macro- policy at the central level, but also includes micro-policy of the specific law enforcement bodies. For instance, when meeting resistance of family host during committing burglary, the burglar first killed the host before the family members such as parents and children. A child pleads the burglar with tears in his eyes not to kill them. The burglar, however, said that if he did not kill them, he himself would be killed. Governed by the idea, the burglar then killed all family members. Under this situation, may we make a policy that at the time of committing crimes, if the burglar is capable of killing the parents and children but did not, even he killed the host who made resistance，he shall not be imposed death penalty. The micro criminal policy like this will play active role in reducing both numbers of victims and number of death penalty. (b) Criminal substantive law. Although the China Criminal Law has established the principle of “the punishments must be imposed in accordance with the law provisions ”, it still leave broad space for judicial practice, such as the identification of circumstance, interpretation of causality relation and many other technical issues that are related to the application scope of the death penalty. (c) The criminal procedures. As long as the death penalty has not been abolished, procedures for the death penalty shall be worth paying attention to. At the moment the following procedures issues shall be improved for the death penalty cases in China: (a) Article 6(4) of ICCPR states: “ Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.” this minimum standard for human rights has not been met in China. We shall improve related laws, and grant rights to those sentenced to death penalty to seek pardon or commutation of the sentence, including establishing amnesty system in our constitution.[18] (b) The delegation of authority by the Supreme People’s Court to the higher courts to approve the death sentence seriously affects quality of approving the death sentence. Delegating most death sentences to the higher courts has resulted in that both the appeal and approval take place in the same court. This can easily result in the melting of the two procedures, which implies that appeal and approval procedures become a single one, which in turn not only brought about an increase in application of the death penalty cases, but also produce impossibility for correcting certain miscarriage of justice. For example, nearly 10-20% of the cases referred to the Supreme People’s Court each year was not granted.[19] If these cases had been approved by the Higher People’s Court instead of referring to the Supreme People’s Court for approval, there would be higher possibility that these judgments be uphold and these offenders would have been executed because of terrible consequences of miscarriage of justice. Both the revised Criminal Procedural Law and the revised Criminal law state that the Supreme People’s Court shall approve the death sentence before execution. However the Supreme People’s Court continues conferring the legal delegation of authority to approve certain death sentences to the Higher People’s Court based on the Organic Law of the People’s Courts of the People’s Republic of China. This delegation violates the principle that subsequent legislation shall be prior to earlier ones and is invalid in light of the constitution violation review. So the Supreme People’s Court shall recover its authority to approve the death sentence as soon as possible, and the delegating approval authority due to shortage of personnel within the Supreme People’s Court is not fully justified since what else is more important than human life ?[20] (c) According to the requirements set by the Safeguards Guaranteeing Protection of the Rights of Those Facing Death Penalty adopted by Economic and Social Council and other documents, capital punishment may not be applied to the mentally retarded and there are shall be upper age limit for the use of the death penalty in China. (d) In view of the high risk of the death sentence, we shall refer to the experiences of foreign countries and set up a system of approving the death sentence both by the collegial panel and the judicial committee in consensus instead of majority consensus for ordinary crime cases. What is more, the system of immediate execution of the death sentence seems too hasty, and adequate period of time shall be reserved for those convicted of the death penalty to seek other remedies. Meanwhile a chance to review and correct miscarriage of justice should be left. Furthermore, proof standard of 100% shall be met for the death penalty cases, i.e., if punishments may be imposed for ordinary criminal cases with 98% or 99% proof standard, then the death penalty shall be imposed without any doubt. Carrying out the open hearing in the second instance, exclusion of illegally obtained evidences, assurance of witnesses ‘s presentation and defense rights of those convicted of the death penalty shall be emphasized as the most important issues.

Finally, I will take this opportunity to say a few words about the paths to limit then eventually abolish the death penalty. I think there are three paths worth considering: (a) constitution path. Foreign experiences has shown that many countries attain the policy goal of restricting and abolishing the death penalty through constitution amendments, constitution interpretation and constitution application. In this regard we face two problems: one is absence of related provisions in our constitution, thus it is suggested that “every one has a right to life” and “prohibition of torture” shall be included in the constitution when making constitution amendment so that these provisions may be used to restrict and abolish the death penalty when necessary.[21] Another problem is the absence of the constitution application mechanism. That China does not have Constitution Court leads to the inefficient and ineffective control on the legislative and judicial violations of constitution. As mentioned above, delegation of authority by the Supreme People’s Court to the Higher People’s Courts to approve the death sentence following the effectiveness of the 1997-revised Criminal Law may be declared invalid through the constitution violation review system from the very beginning.However at the moment it could not be realized in China. Thus China shall set up adequate constitution application system as early as possible. (b) Criminal Law path, that is to abolish the death penalty for some or all crimes through revision of the Criminal Law. We can take reference of experiences such as France, firstly made a specific decision to abolish the death penalty for all crimes and then considered adjusting and revising the Criminal Code. The benefit of path is to concentrate on the debate and discussion on the abolishing or retaining the death penalty and to avoid complexity resulted from the evolvement of other issues. (c) Judicial path, which means to narrow down the application scope and conditions of the death penalty without any change of laws and regulations with a view to make them dead provisions. Furthermore, with support of the central level, all prompt executions of the death sentence may be changed to death penalty with a 2 years suspension .Thus the system of death penalty with a suspension period can play its special role in the process toward abolishing the death penalty.

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[1] See Amnesty international: Facts and figures on the death penalty, at http://www.amnesty.org.

[2]See（English）Roger Hood, The Death Penalty: A worldwide Perspective, Third Edition, Oxford University Press,2002,p72.

[3] See: Amenesty International report 2003,p.267.

[4] See, Roger Hood, supra , p.12.

[5] China has promised not impose the death penalty on Lai if he is extradited back by Canada.

[6] See: Al, The Death Penalty, http://www.amnesty.org

[7] See: Roger Hood，supra.p.214.

[8] See: Abolish and Retain the Death Penalty---Basic Theory Study of the Death Penalty, Hu Yunteng, China Procuratorater Press, 2000, pp270-271.

[9] The death sentence may be imposed only for a stealing a banking institution and the amount involved is especially huge or a stealing precious culture relics and the circumstances are serious.

[10] Akedun, Freedom and Power, translated by Hou Jian and Fan Yafeng, the Commercial Press, 2001, P39.

[11] The family planning is a good example, although I do not agree the compulsory working method for the family planning, neither I support the connection between the human rights and the family planning proposed by some western scholars. China has largest population in the world and if we only consider the public opinion more than 80% of the population are farmers and they absolutely will oppose the family planning, and it is not hard to forecast the grave consequences.

[12] Xia Yong, the Death Penalty and “the Most Serious Crimes”, Volume 2 of the Public Law, Law Press, 2000.

[13] See: Robert Badinter , L’Abolition, Law Press, 2003, p194 and 203.

[14] International Convenant on Civil and Political Rights, Art 6(2).

[15] See: Roger Hood, supra, p.76.

[16] United Nations,Report of the Special Rapporteur on Extrajudicial,Summary orArbitrary Executions,submitted to the Commission on Human Rights,E/CN.4.1999/39,PARA.63.

[17] See: Democracy and Legal Systems, No.5, 1997.

[18] Chinese current constitution only provides pardon and does not provide amnesty.

[19] See: Hu Yunteng , Abolish and Retain the Death Penalty---Basic Theory Study of the Death Penalty, supra., p278.

[20] Of course, the study by the circurt of the school is further beyond of the recovery of the authority of the power to approve the death sentence, they argue that those convicted of death sentence including their defence layers shall have the right to participant into the legal proceedings and thus make the approval of the death sentence a public process. See: Qu Xinjiu, Rights Analysis of the Criminal Policy, University of Politic Sienceand Law Press, 2000, PP260-261. Enlightened by this proposal, I suggest a system of three instances for trail of a case.

[21] Weather the death penalty fall into the catagory of violation of right to life or torture, or under what conditions and for what kind criminals the imposition of the death penalty fall into the catagory of violation of right to life or torture, there is room for interpretations.