Nation moves to limit use of capital punishment
Amendments to the laws related to criminal affairs have gradually reduced the number of offenses punishable by death. Cao Yin reports.
In the 40 years since China adopted the reform and opening-up policy, the country has moved to gradually limit the use of the death penalty, a punishment that was once seen as a cornerstone in the fight to deter offenders and maintain public order.
Experts say the move away from capital punishment is partly a result of the nation’s growing economic strength, but is also motivated by a desire to prevent irreversible miscarriages of justice.
Zhou Guangquan, a professor of criminal law at Tsinghua University in Beijing, often uses the case of Nie Shubin as an example.
In 1995, Nie was executed at the age of 21 after being convicted of raping and killing a woman in Hebei province. In 2016, however, the Supreme People’s Court, China’s top court, quashed Nie’s conviction and pronounced him not guilty posthumously after ruling that the evidence presented at his trial had been obtained illegally and could not guarantee a flawless conviction.
Moreover, in 2013, during a trial at Handan Intermediate People’s Court in Hebei, a man named Wang Shujin confessed to the crimes that led to Nie’s execution.
Cases such as Nie’s demonstrate that the death penalty must be used in a prudent and controlled fashion, according to Zhou, who was pleased to see greater restrictions on its use written into a report issued at the Third Plenary Session of the 18th Central Committee of the Communist Party of China in 2013.
“It was a signal that capital punishment would be used less frequently in China,” he said, adding that the loss of a young life and the anguish suffered by Nie’s family “was too devastating to be erased by simply overturning the conviction”.
Mo Hongxian, a professor of law at Wuhan University, Hubei province, who has focused on the use of the death penalty since 1997, said the report was probably the first time the prudent application of capital punishment had been mentioned in a national-level document.
“It can be regarded as a display of firm support for the drive to limit the use of the death penalty in the past two decades,” she said.
A key move in 2007 saw the Supreme People’s Court being given the power of final arbitration over the use of capital punishment, meaning it has to approve all death sentences passed by lower-level courts. Meanwhile, “innocent until proven guilty” and “punishment stipulated by law” were enshrined as basic principles in the Criminal Law.
In 2011, the death penalty was abolished for dozens of nonviolent crimes, such as fraud of financial documents and theft.
“These measures illustrate the country’s determination to protect human rights” said Mo, who was born in 1954 and has witnessed all 40 years of reform and opening-up.
She added that the changes were a direct result of China’s rapid economic development, stronger management of public security and the public’s growing legal awareness, and noted that the abolition of the death penalty for a growing number of crimes is in line with global trends.
Although the number of people sentenced to death every year is never disclosed, both Mo and Zhou are optimistic about further reductions in the use of capital punishment for a wide range of nonviolent crimes.
Tougher penalties
In the 1980s and early ’90s, the government believed that harsh penalties would act as a deterrent and maintain public security.
According to Hu Yunteng, a senior judge at the Supreme People’s Court, from 1982 to 1996, rural people flooded into China’s big cities, seeking job opportunities in the rapidly diversifying market. However, the nation’s urban management systems could not keep pace with the changes, let alone solve them.
The changes also resulted in a rise in criminal activity, especially financial offenses, that harmed public security and threw the fledgling market into disarray. In response, the government tried to solve the problem by adding more than 100 new crimes to the statute books, imposing harsher punishments and extending the death penalty to 40 more crimes, he said.
In 1983, sentences ranging from five years to death — often referred to as “tougher penalties” — accounted for about 50 percent of convictions. Meanwhile, provincial-level courts had the right to impose the death penalty, especially when ruling on crimes such as intentional homicide (the crime of murder does not exist in Chinese law), rape, robbery, bombing and drug-related offenses, Hu said.
“At the time, the judicial system preferred tougher punishments and placed great emphasis on efficient solving of cases, so we were not strict enough in ensuring that evidence was relevant and correctly obtained,” he said.
Control and prudence
Economic growth accelerated after China further opened up in the late 1990s, causing the number of robberies and other crimes to fall and allowing rapid improvements in public security.
The developments helped China to better integrate with the outside world and also prompted changes in the use of the death penalty.
Mo, the law professor, regards the 2007 decision to give the Supreme People’s Court the final say on executions as a major contribution to limiting the use of capital punishment.
“It was a key step in catering to the international trend for the prudent application of capital punishment,” she said, adding that the changes were also reflected in legislation.
The changes included amendments to the Criminal Law in 2011 which ensured that 13 nonviolent or economic crimes, such as negotiable instruments fraud, were no longer subject to the death penalty. That reduced the overall number to 55.
Moreover, under the amended law, it was no longer permissible to execute offenders age 75 and older.
In 2015, the Standing Committee of the National People’s Congress, the top legislative body, abolished the death penalty for nine more crimes — including five related to the financial sector, such as illegal fundraising — cutting the number to 46.
“The death penalty for financial misconduct was not equitable to the crime. After all, life is the most precious thing, and capital punishment is irreversible,” said Xu Hao, a criminal lawyer at the Jingshi Law Firm in Beijing.
“With China’s rapid economic development, more people have better lives. Before, a child might starve to death if its family’s savings or grain were stolen. But nowadays few people face such a situation if their property is damaged.”
Hu, from the top court, praised the reduction in the use of capital punishment, saying “scientific penalties” better protect human rights. In 2005, for example, the so-called tougher penalties accounted for just 18 percent of all sentences handed down. “It was an improvement in the rule of law,” he added.
Zhou, the law professor, was also in favor of greater leniency. “It isn’t possible to reverse an execution if errors are discovered in investigations or trials,” he said. “Severe punishments do not act as a deterrent, let alone help to build a safer society.”
Firm but fair
In Zhou’s view, a good judgment consists of a flawless conviction and an appropriate punishment: “In other words, not heavier, but better.”
For example, illegal fundraisers could be sentenced to death in the past, but now the heaviest punishment they face is life imprisonment.
“Spending their lives behind bars is enough for such offenders, and they have lost the opportunity to raise funds illegally again so I think the aim of the punishment is effective,” Zhou said, dismissing concerns voiced by some legal professionals who believe that lenient punishments pose a potential risk to public security.
Mo said the Work Report of the Supreme People’s Court in 2008 noted that the number of serious offenses, such as intentional homicide and arson, declined noticeably in 2007, the year the court became the final arbiter on executions.
She applauded the judicial system’s adherence to the principles of “innocent until proved guilty” and “punishment stipulated by law” because they also contribute to the prudent use of the death penalty.
Hu, from the top court, said highlighting the two principles encourages stricter standards in the examination and judgment of evidence in cases where the death penalty could be imposed, and their adoption across the board plays a role in preventing miscarriages of justice.
“It’s pleasing to see quality highlighted in the handling of criminal cases rather than speed,” he said, adding that it demonstrates great progress in the rule of law.
Xu, the lawyer in Beijing, said the use of lethal injection for executions is also a sign of progress. “It is more humane compared with execution by firing squad,” he added.
Future changes
All the experts said the control and prudent application of the death penalty will be strengthened further in future, with fewer nonviolent or financial crimes coming under its remit.
“However, the pace of change may slow,” Zhou said, adding that it is currently not practical to abolish the death penalty for all crimes, even though some European countries have already done so.
Xu said: “Complete abolition would require both the country and the people’s legal awareness to become more refined, which will take time. There is still a long way to go.”
As an example, he pointed out that the idea of “a life for a life” is still deeply rooted in many people’s minds, especially with regard to violent offenses such as rape or intentional homicide, so perceptions would have to develop before farreaching changes could be enforced.