Restrictions on the Imposition of the Death Penalty

I. Strict Definition of "the Most Serious Crimes"

    Paragraph 2, Article 6 of the International Covenant on Civil and Political Rights stipulates that "in countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes…." Article 1 of the ECOSOC Safeguards guaranteeing protection of the rights of those facing the death penalty reaffirms that "in countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes"', and it further stipulates that “ their scope should not go beyond intentional crimes with lethal or other extremely grave consequences.”

    How to interpret and define "the most serious crimes" is directly linked to the understanding of the international standards in respect of the scope of the imposition of the death penalty. In states with different political, economic, legal, cultural and ethical backgrounds, whether a common understanding of "the most serious crimes" can be reached is also directly linked to the question of whether the scope of the imposition of the death penalty can be reduced to the lowest degree in the states that still maintain the death penalty.

    According to the provisions of the ECOSOC Safeguards guaranteeing protection of the rights of those facing the death penalty, the notion of "the most serious crimes" refers to intentional crimes with lethal or extremely grave consequences.

    Article 40 of China' s Criminal Law stipulates that "The death penalty should only be applied to criminals who have committed extremely serious crimes". From the perspective of word meaning, this provision is extremely similar with paragraph 1, Article 6 of the International Covenant on Civil and Political Rights. China' s Criminal Law does not make any further explanation of what extremely serious crimes are.

    However, in China' Criminal Law there are many intentional crimes for which the death penalty is applicable, so the scope of "extremely serious crimes" is apparently broader than the explanation given by Article 1 of the ECOSOC Safeguards guaranteeing the protection of those facing the death penalty in respect of "the most serious crimes". The crucial difference is that the so-called "extremely serious crimes" are not confined to those with "extremely grave consequences”. As a result, intentional crimes with extremely serious circumstances (such as certain crimes undermining public order), crimes involving extremely huge amount of money (such as certain economic crimes), crimes with extremely heinous methods (such as certain crimes infringing upon rights of the person), or crimes involving extremely important victims (such as certain crimes endangering state security), like intentional crimes with extremely grave consequences , would also be regarded within the scope of "extremely serious crimes”.

    Departing from the point of strictly restrict the imposition of the death penalty, when China' s Criminal Law defines "extremely serious crimes", at least the lowest standard of the interpretation of "the most serious crimes" by the ECOSOC Safeguards guaranteeing the protection of those facing the death penalty should be strictly abided by, and those intentional crimes without extremely grave consequences should be excluded from the scope of the imposition of the death penalty. For instance, the death penalty should not be imposed for economic crimes involving extremely huge amount of money but without extremely grave consequences.

II. Proper Use of the Open Choice of Legal Punishments

    The legal punishments for more than 70 serious intentional crimes for which the death penalty may be applied in China' s Criminal Law are open for choice. Among them, even in situations of crimes with serious consequences and circumstances, the death penalty should be imposed for only four crimes (“instigate a riot to escape from prison”, “gather people to raid a prison with weapons”, “hijack an aircraft ”and “kidnap ”) with particularly grave circumstances. In other words, the law does not define that the death penalty must be imposed for any particular crime, but rather leaves room for different choices. This gives judicial authorities extremely important discretion. Therefore, in the situation where it is still impossible to dramatically reduce imposition of the death penalty by legislation, it is crucial whether the middle, high or supreme courts, especially the later, with jurisdiction over cases of death sentence may be wise enough to use the open choice of legal punishments to restrict and reduce imposition of the death penalty.

    It should be pointed out particularly that with regard to imposition of the death penalty, it is Inappropriate to take a harsher stand than the legislation to exclude the open choice of legal punishments by ways of legal interpretation. Certain legal interpretations by the Supreme People' s Court and some high courts in the past are worrisome. For example, in 1987 the Supreme People’s Court' s legal interpretation named the Reply with Regard to the "Standards of Punishment for Death Sentence Cases of Drug Trafficking" confirmed the standards of punishment raised by Yunnan Province High Court to exclusively impose the death penalty on drug trafficking cases above certain amount of drugs.

    So the open choice of legal punishments and the considerably great discretion by the judge is a double-edged sword, which may restrict and reduce imposition of the death penalty if used properly or lead to abuse if used inappropriately. In this sense, the qualifications of the judge, the independence of the court to exercise adjudication, the concept concerning human rights and the death penalty on the part of the judge and the public, and the strictness of the standards used by those giving approval to death sentences would all be important factors affecting the number of death sentences.

III. To Make Full Use of the Commutation Function of the Suspension of Execution Mechanism

    The two-year suspension of execution for death sentence is a unique feature of Chinese death penalty system. It plays an important role of buffer and filter in restricting and reducing final execution of the death sentences. According to the law, if a person sentenced to death with a suspension of execution commits no intentional crime during the period of suspension, his punishment shall be commuted to life imprisonment upon the expiration of the two-year period; if he has truly performed major meritorious service, his punishment shall be commuted to fix-term imprisonment of not less than fifteen years and not more than twenty years upon the expiration of the two-year period; if it is verified that he has committed an intentional crime, the death penalty shall be executed upon verification and approval of the Supreme People' s Court. In legal practice, nearly all the people sentenced to death with a 2-year suspension of execution would cherish the final opportunity to survive and get commutation to avoid execution. From this perspective, one may see that most criminals, including those have committed the most heinous crimes can be reformed to certain degree.

    Suspension of execution is not an independent punishment, but rather a death penalty mechanism with additional conditions for commutation. So at trials of the most serious criminal cases, even if there is no choice but to impose the death penalty after thorough consideration of the open choice of legal punishments, 2-year suspension of execution should be used to the greatest degree if there is no extremely sufficient reason for immediate

    execution, so as to make full use of the special function of the suspension of execution mechanism in restricting and reducing execution of the death sentences.

IV. Withdrawal of the Approval Power of Death Sentence

    The 1997 Criminal Law and Criminal Procedure Law stipulate that except for judgments made by the Supreme People' s Court according to law and sentences of death with suspension of execution decided or approved by a high people' s court, all sentences of death shall be submitted to the Supreme People' s Court for approval. The Decision on the Issue of Approval of Sentences of Death passed by the Standing Committee of the National People' s Congress on 10 of June 1981 went beyond the above provision. The Decision on the Revision of the Law on the Organization of People' s Court of the People' s Republic of China passed by the Standing Committee of the National People' s Congress on 2nd September 1983 made revisions about the exercise of the approval power of death sentence. On 7 September 1983, according to this decision the Supreme People' s Court delegated to all high people' s courts the approval power in respect of death sentence on cases of homicide, rape, robbery, explosion and other crimes gravely endangering public security and social order. Later, the Supreme People' s Court delegated to the high people' s courts in Yunnan, Guangdong and other Provinces the approval power in respect of death sentence on certain drug cases.

    The delegation of the approval right of certain death sentences severely undermined the role of re-approval procedures for death sentences in restricting and reducing death sentences and aroused wide and enduring questioning by the academic circle. The Criminal Procedure Law as revised in1996 and the Criminal Law as revised in 1997 did not acknowledge the above legal practice of delegating approval right of death sentence and explicitly reaffirmed the principle of "approval by the Supreme People' s Court".

    However, since the relevant provisions in the Law on the Organization of Court have not been revised, and the Supreme People' s Court itself feels incapable of undertaking the strenuous work of approving so many death sentences, the provisions with regard to approval by the Supreme People' Court in the new Criminal Law and Criminal Procedure Law has not been put into practice.

    It is indisputable that the delegation of the approval right of death sentence has led to a sharp increase of cases for which the death penalty was applied. The more worrisome fact is that some wrong death sentences may have probably lost the opportunity for redress. Such wrong sentences include wrong verdicts and wrong punishments applicable. Taking the cases of death sentence approved by the Supreme People' s Court for example, the death sentences submitted by high people' s courts witnessed a rate between 10-30% of re-sentence (See Hu Yunteng's Maintenance or Abolition: Basic Theoretical Study on the Death Penalty, p.282, China Procuratorate Publishing House, 1999). So the delegation of the approval right of death sentence to lower courts would make a considerable number of wrong death sentences unable to be redressed in time and its damage is beyond estimate Therefore, whether from the perspectives of law theory, legal practice or protection of the lawful rights and interests of the defendant and his family, it is absolutely necessary for the Supreme People' s Court to withdraw the approval power of death sentences.

V. The Balance between Making Information Public and Confidential: Making Available to the Public Information with regard to the Statistics on Imposition of the Death Penalty

    How many death sentences are there in China each year? For a long time this is a question embarrassing for government officials, perplexing for scholars, and surprising for outsiders. It is said that the statistics on imposition of death penalty IS a judicial secret. But who can tell me the legal basis and necessity to treat the number of sentenced cases including death sentences as a national secret? The actual reason is very simple, no more than that there are too many death sentences and making the number available to the public would undermine the international image of China. But who is unaware that China' s Criminal Law defines the highest number of crimes for which the death penalty may be imposed and China has the highest number of death sentences? So even if China follows the general practice of other states and make available to the public the statistics on death sentences, the sky would not fall. There are at least two advantages for making available to the public the number of death sentences and the execution of death sentences: first, it is helpful to a more comprehensive empirical research on the deterring effect of the death penalty on serious crimes and thus provides more objective and scientific basis for a proper understanding of the functions and roles of the death penalty; secondly, it would place imposition of the death penalty under the monitor of the whole society and even the whole world, which is conducive to strictly restricting and reducing death sentences. Especially after China signed and ratify the International Covenant on Civil and Political Rights in the future, excessive imposition of the death penalty apparently cannot be regarded as consistent with the spirit of restricting the death penalty in the Covenant. To make available to the public the number of death sentences would help China to fully implement the international obligations stipulated by the Covenant.