The aim of this research paper is to advocate for the eradication of the death penalty in the People’s Republic of China, based on both human rights as well as practical deterrence grounds. The author is pursuing a B.A. major in ___ and has been studying global legal developments on the controversial issue of death penalty. Although, more than two-third countries worldwide have abolished the death penalty in their legal systems (Amnesty International), a large number of them including China continue to retain this ruthless method of justice which is now considered by most governments and international lawmakers to be a barbaric relic from the past, and has no place in the 21st century.
Accordingly, the author will advance his arguments for government reform measures that can be implemented within the Chinese legal system for doing away with the institution of death penalty. These reform measures will be further supported on the basis of human rights and a specific deterrence theory which argues that longer incarceration rates have been proven to have a much more lasting impact on arresting crime trends than the deterrent impact of the death penalty (Siegel, 108).
Background of Death Penalty in China
According to Amnesty International, China is reported to top the world in terms of carrying out the death penalty, with an estimated number of judicial killing sentences that range anything between 1000 to 6000 per year (qtd. in Lu, 5). For example, a 1997 report recorded 6100 death sentences in China for 1996, with 4367 confirmed executions (Kent, 223). However, the actual figures in each case are expected to be much higher as Chinese authorities maintain a huge degree of secrecy regarding death sentences and executions being carried out in that country (Amnesty USA).
Percentage wise, China is estimated to contribute anything between 60-80% of executions worldwide on a year to year basis (qtd. in Lu, 2, 5). Currently, the death penalty can be awarded for as many as 68 categories of offenses (Deutsche Welle Asia) many of which include non-violent crimes such as economic offenses, espionage, graft, bribery, public corruption, desertion during battle, defecting to a foreign country and more (qtd. in Lu, 5, 7, 8).
Sources believe that the poor are the hardest hit due to these death penalty laws, along with suspected separatists, especially from sensitive regions such as Xinjiang and Tibet (Kent, 223; Schabas, 306; Dikotter, 178). The intensity of executions taking place has skyrocketed since 1983, when Chinese authorities ordered a “strike hard” campaign against rising crime (Kent, 223).
Even as recently in 2005, the Chinese Premier Wen Jiabao defended the institution of death penalty on the grounds of China’s unique “national conditions” while simultaneously calling for the judicial mechanism to award the sentence “carefully, and fairly” (People Daily China). However, another government representative, Zhang Zun, the deputy Minister of Justice, believes that the key issue regarding the death penalty is to reform the judicial system, and the government is not opposed in principle to abolitionism (China Daily).
This is indeed a far change in attitude from the historical traditions where capital punishment was awarded on the reasoning of retribution, with an abundance of traditional Chinese sayings such as “a life for a life”, “killing one to warn a hundred” etc. (qtd. in Lu, 10) shaping present day legislation. However, there is no uniformity in agreement over the continuation of death penalty in China. Increasingly, rights groups are clamoring for reform.
There is evidence today that Chinese lawmakers are increasingly pushing for the legal principle of proportionality which makes any punishment fit a crime, thereby practically doing away with the “strike hard” stand (Kent, 224). This means increasing the call for easing out on some of the draconian laws, while drastically reducing the number of categories for which death sentence is carried out. Some of the solutions and reform measures will be discussed later in this report.
Human Rights Arguments against Death Penalty
Most of the international legislative norms addressing the abolition of the death penalty date from the post second world war phenomenon (Schabas, 27). Having witnessed first hand the horrors of the atrocities committed by the Nazi regime, and the Japanese occupation forces in Asia, global opinion makers called for an implicit recognition of the “right to life” of every human being.
The above principle eventually took its pride of place in the Universal Declaration of Human Rights in 1948 (Schabas, 27). The idea of abolitionism gained ground over the next few decades, with initial legislation designed to protect juveniles, pregnant women, the elderly and the disabled from the possibility of a death sentence (Schabas, 27).
Eventually, these international instruments metamorphosed into the present day global dictum against capital punishment – and so far, sixty six countries have abolished the death sentence on human rights grounds alone (Schabas, 27). These pieces of legislation operate on the premise that the death penalty is the ultimate denial of human rights and qualifies as a cold-blooded murder of an individual by the state (Amnesty International, 2009). It’s also increasingly being considered that the death penalty does not warrant itself even in the extreme nature of the crime, or in the pretext of humane methods of execution used by the state (Amnesty International, 2009).
However, there have also been a few popular waves in recent times of reinstating capital punishment because of emergence of terrorism, violent shoot-outs and other crimes that qualify as mass murders (Franck, Nyman & Schabas, 124). Even then, legislators worldwide are in consensus about protecting the life and dignity of prisoners, and any publicized execution event ends up gathering media coverage with call for restraints and stays on the execution (Franck et al, 124).
Considering legal examples from the United States, another country apart from China which has continued to retain capital punishment in some of its states, it can be followed that the government of the United States, as represented by the Supreme Court, declares this form of the punishment to be unconstitutional (Franck et al, 72).
In the late 1960’s, a landmark case Furman v. Georgia, set the precedent in terms of setting a moratorium on the imposition of death sentences, since these were proven to be cruel and unusual punishments, which are prohibited under the constitution (Frank et al, 72). It was basically found that no jury has the right to determine whether an accused in court should die, because it constitutes a violation of the prisoner’s basic human rights as an individual.
Even in China, despite the present situation concerning capital punishment, there is widespread condemnation of this institution by legal experts, government officials and also the Communist political regime. According to Chinese sociologist Li Jianhua, the roots of abolitionism have existed in Chinese society even before (Dikotter, 179). Historical sources suggest that Ogawa Shigejiro, a Japanese legal expert hired by Qing government, quoted on the need to abolish a medieval practice that violated human rights (renquan) and the spirit of humanism (rendao zhuyi), thus, advancing the argument that human rights principles have always been in existence in China, just like in the West (Dikotter, 179). China has nothing new to learn on the subject of human rights!
A noted Government official Lu Zheng, was reported to quote in one of the leading Chinese law journals on how the death penalty had been abolished in many countries of the West since the 18th century, and why China must follow suit (Dikotter, 179). The death penalty, in his view, contradicted the very spirit of reformation (Youbei ganhua) that is the cornerstone of a modern penal system (Dikotter, 179). He also proffers an argument that no evidence was ever produced of any link between rising crime rates and the abolition of the death penalty, which he condemned as a severely immoral act in which one human being is allowed to take the life of another (Dikotter, 179). This is a remarkable note about the principles of justice that are commonly associated with Western countries, but happen to be equally prevalent in China.
According to Yuan Lianghua, a prominent naval officer associated with Sun-Yat-Sen, the former revolutionary leader of China, the death penalty was noted as something which is cruel and unnecessary, and ought to be replaced by a life sentence (Dikotter, 180). The arguments against the death penalty mainly revolve around humanitarian grounds – 1) It does not give individuals a chance to better themselves and 2) It inflicts unbearable pain on them (Dikotter, 180).
In addition, Yuan Lianghua believed that the society was partly responsible for goading the individual towards a lifetime path of crime, and must therefore, display sympathy and compassion, wherever possible (Dikotter, 180). Moreover, capital punishment harmed not just the accused, but also the family members of the accused and was thus, inconsistent with the goals of alleviating suffering (Dikotter, 180).
Yuan Lianghua could also see the inherent contradiction in the system where killing was explicitly forbidden by the Government while at the same time, it saw nothing wrong in sanctioning judicial killing in the name of justice (Dikotter, 180). Thus, in the name of legal reform, Yuan Lianghua advanced the cause of abolitionism.
Also, some penologists and criminologists based out of China have been critical of the death penalty. They advocate that by doling out death sentence for non-violent crimes, the State tries to increase its stranglehold on political prisoners. Death sentences, thus, become an instrument to punish innocents (Dikotter, 181) and becomes a blackmailing tool.
Hong Kong (while under British rule), successfully abolished the death sentence in 1993 and the Chinese authorities have not yet sought to reinstate capital punishment in that territory. This has brought a new dilemma for them– the number of cross-border crimes committed by Mainland China nationals who later flee to Hong Kong has seen a dramatic rise in recent years (Dick Wan). Most of these Mainland China nationals include Triad gangs seeking refuge in Hong Kong to avoid being sentenced under the Mainland Chinese system.
Prisoner transfer systems, which allow prisoners to be sent back to their home countries, are seen as necessary on both humanitarian as well as rehabilitation grounds (Dick Wan). However, the Government of Hong Kong territory, which was founded on Western principles of egalitarianism and human rights, could not justify transfer of individuals back to Chinese soil where they would face death penalty (Dick Wan, 2008).
Thus, while on one hand, the Chinese government seeks to ignore human rights campaigners in order to uphold its judicial system, it simultaneously faces a discriminatory contradiction in having to uphold the human rights-based legislation against death penalty in its own territory, Hong Kong. It only makes fair sense for Chinese authorities to push for a central legislation which does away with death penalty across the whole nation, and not endorse special privileges for one marked territory alone.
Even though there is less support for the abolitionist movement in Chinese government circles, there is significant consensus on the need to have increasing measures that will respect human rights with calls to change legislation. The task ahead now is to take this consensus forward, and build progressive legislation.
Deterrence Theory against Death Penalty
One of the principle arguments proffered by death penalty retentionists is that it offers a serious deterrent against crime, because the offender would think twice before facing off the consequences that come with committing a serious crime. The fear of execution, the theory argues, has enough power to deter any potential crime and build a safer society (Siegel, 108). The “eye for an eye” rule holds its place in popular perception, while obviously having many takers among lawmakers in countries which uphold the death sentence, including the United States. However, the theory loses its validity due to a number of reasons.
First, if capital punishment is a serious deterrent against crime, then its impact should be greatest after a well-publicized execution which used to be very common back in the early 20th century. However, an experiment conducted by Robert Dann in 1935 failed this deterrence test. He chose five highly publicized executions of convicted murderers in different years to determine the number of homicides before and after each execution (Siegel, 108). It was found that the number of said homicides did not show any signs of abatement in the period of testing. According to Dann’s study, an average of 4.4 more homicides occurred during the 60 days following an execution, than in the preceding period, suggesting that the overall impact of executions actually led to more homicides (Siegel, 108).
France, which was among the last Western countries to abolish capital punishment, did away with publicized executions as early as 1937 because of the fear of sensationalist coverage by the media. Even in China, the convict to be executed is surrounded by a 2 mile cordon of security personnel, in order to keep away outsiders (Franck, 141). Moreover, many countries such as Iran, Nigeria etc. which allow publicized executions, often see record crime events after the execution takes place.
Another kind of research compares the murder rates in US jurisdictions that have abolished the death penalty with the rates of those that continue to retain it. There was little difference found in the murder rates, regardless of the means of death penalty (Siegel, 108). Also, there have been research studies conducted in 14 nations around the world (mostly in Europe) which suggest that homicide rates actually dropped after capital punishment was abolished, a direct contradiction to the deterrent effect (Siegel, 108).
Jon Soenson and his colleagues conducted a time-series study on the phenomenon of capital sentencing which operated on the theory that if the death penalty must act as a serious deterrent, then periods of upswing in executions should also witness a downturn in violent crime and murder (Siegel, 108). However, no such correlation was found between the frequency of executions and violent crime during an elaborate time period running between 1984 and 1997 (Siegel, 108).
Another criminologist Matt Beverlin used data gathered between 1974 and 2001 across 50 states to come to the conclusion that death penalty for juveniles, had no deterrent effect on the scope of violent crime (Siegel, 108).
All of these studies above confirm that the threat or reality of executions has little bearing on murder rates, and certainly does not act as a severe deterrent to crime. Since, the Chinese judicial system operates on the flawed deterrence model to justify its stand on capital punishment, it can be clearly seen that the judicial system would greatly benefit by doing away with this outmoded theory, if its objective is to reduce violent crime. With this theoretical premise, the specific deterrence model is hereby advocated.
In contrast to the retributive approach of the deterrence model, the specific deterrence model does not focus on preventing future crime. In fact, it goes much deeper than that.
The specific deterrence model advocates that criminal sanctions should be so powerful that first-time offenders will not repeat their criminal acts out of fear of the prison system (Siegel, 108). The theory works according to the severity of punishment at hand, and focuses on corrective therapy. For instance, the robber that spent twelve years in a maximum security prison, would not be too keen about future crime activities after his release/parole.
Theoretically, the intended results will work in such a scenario if adequate connection can be established between a planned action and memories of the consequence (Siegel, 108). At the end of the day, applying a stronger set of criminal sanctions with longer prison terms goes a long way in controlling crime.
It has often been argued that the reason for the popularity of the death penalty in China has something to do with the fact that comparable alternatives aren’t delivering the desired impact in crime prevention (Lu, 12). Currently, by law, life imprisonment is limited to only 15 years, which does not act as a serious detractor to violent crime, especially homicides (Lu, 12).
The Specific Deterrence theory would come in great aid in above scenario because it is applicable to various crime provisions, and delivers specific results for any targeted crime. In contrast to blanket awarding of death sentence, punishments using the specific deterrence model would justify longer and harsher sentences, which will then ensure better results in keeping with crime-control objectives of the Government and Law enforcement.
Most importantly, abolishing the death penalty gives first time offenders a genuine chance to redeem their lives, thanks to a long and hard spell in a correction facility. As discussed earlier, such an approach is strongly in keeping with Li Zheng’s spirit of reformation (Youbei ganhua) that should be the cornerstone of a modern penal system.
Reform Measures to be undertaken in the Chinese Judicial System
In keeping with the author’s stated position of seeking to have the death penalty abolished in China, the following legal reform measures are being advanced.
- Raising the available life-term prison sentence term from a mere 15 years to 20-30 years. Depending on the severity of the crime, longer prison sentences would act as a powerful deterrent to violent crimes, as well as corruption and drug trafficking. Moreover, they will provide an opportunity of rehabilitation for first-time offenders. It is the responsibility of society to give them another chance in life.
- Reducing the scope and numbers of capital offenses (qtd. in Lu, 12). Currently, more than 68 criminal offenses carry the death sentence in the Chinese judicial system. A progressive legislation can be drafted to ensure death sentence is not carried out for non-violent crimes (qtd. in Lu, 13). This would greatly reduce the scope and expanse of capital punishment, and pave the way for a more reformed judicial system.
- In recent years, China has passed a new law which dictates that all death penalty rulings that are not connected to murder, rape and other violent crimes and passed by intermediate courts have to be appealed to the Supreme People’s Court for a final review (People Daily China). In recent years, over 15% of executions were cancelled this way and converted to life sentences. The author advocates that by taking a leaf from this legislation, Chinese lawmakers can allow for a “universal appeals process” for all convicted offenders, irrespective of the fact whether or not they committed any violent crime.
- Proceeding for executions with caution should also be a desired legislation target. It is being recommended that enough legal impedimenta be put in place to ensure that execution cases be proceeded with cautious deliberation.
- The most important recommendation would be to move towards a gradual policy of abolitionism. This can be done by weighing the advantages of a correctional system which reforms criminals, rather than arbitrarily handing out death sentences,
Given that China is a society in transition with increasing sync with the West, culturally as well as in business, it’s in its own interests to push for legislation which reforms the existing legal system, and erases its past track record in administering judicial killings. One of the top ranking Government official, Zhang Jun, the deputy Minister of Justice, also advocated measures such as increasing life terms from 15 years to 20-30 years in order to do away with death sentencing (China Daily).
Chinese Public Opinion on the subject of Death Penalty
Many Chinese polls used to show support for judicial killings in anything between 85 to 90% (Deutsch Welle Asia) but this has long since been proved invalid. According to Dietrich Oberwitter at Germany’s Max Planck Institute for Foreign and International Criminal Law, the survey did not take into account the fact that support for execution was most prominent in emotion-laden crime events such as murder, sexual abuse of girls and drug crimes (Deutsch Welle Asia). According to this survey, which got published in October 2009, the popular support for capital punishment was only at 58 per cent. Oberwitter basically advocates that support for death penalty has always existed in all societies, but that doesn’t mean reform measures should be ignored (Deutsch Welle Asia).
In any case, since worldwide trends increasingly suggest abolitionism, China will have no other choice but to fall in line with global demands for creating a just and fair legal system.
References
Amnesty International. The Death Penalty in 2009. Amnesty International, Web.
Amnesty USA. “Death Penalty Report: China must end secrecy surrounding sentences and executions.” Amnesty USA, 2010. Web.
China Daily. “China questions Death Penalty.” China Daily Online, 2005. Web.
Deutsch Welle Asia. “Loss of Support for China’s Death Penalty.” Deutsche Welle, 2010. Web.
Dick Wan, Choy. “Prison Transfer between Hong Kong and Mainland China: A Preliminary Assessment.” Brooklyn Journal of International Law, 2008.
Dikotter, Frank. Crime, Punishment and the Prison in Modern China. C. Hurst & Company, London (UK): 2002.
Franck, Hans Goran., Nyman, Klas & Schabas, Williams. The Barbaric Punishment: Abolishing the Death Penalty. Aspen Publishers: Frederick, MD, 2003.
Hong, Lu. “China’s Death Penalty: Reforms on Capital Punishment.” East Asian Institute of National University of Singapore, 2008. Web.
Kent, Ann E. China, the United Nations and Human Rights: The Limits of Compliance. University of Pennsylvania Press: Philadelphia, PA, 1999
People Daily China. “Chinese Premier Says China not to Abolish Death Penalty.” People.com.cn, 2005. Web.
Schabas, William. The Abolition of the Death Penalty in International Law. Cambridge University Press: Cambridge, UK: 2002
Siegel, Larry J. Criminology. Thomson Wadsworth: Belmont, CA: 2009.