Written by Hong Lu.
As of 2015, approximately 70% of the countries around the globe (140 out of 198) had abolished the death penalty in law or in practice. According to Amnesty International, an average of over 3 countries per year have become abolitionists in law or in practice in the past decade. It is widely believed that China led the retentionist states in its number of death sentences and executions imposed annually. While the exact number of death sentences and executions in China is unknown because published official crime statistics on death penalty are not available, a recent estimate from Dui Hua Foundation cited by Amnesty International suggests that 2,400 executions were carried out in China in 2013, surpassing 778 executions by the rest of the world combined.
China’s death penalty laws and practices have been intertwined with its economic reforms since the 1980s. During the early years of the economic reforms that aimed to transform the state-planned economy into a market economy, the death penalty was used primarily as an instrument for order maintenance and social control. The dramatic changes in the economic structure brought about changes in major aspects of social life, including crime. To curb the crime epidemic, the scope of death-eligible offences had been expanded to include 9 broad categories (e.g., crimes against socialist market economy; crimes against public security) and 68 different types of crimes (e.g., graft and bribe-taking; credit card fraud; drug trafficking). The death penalty law was also tailored to meet the needs of the strike-hard campaigns (from the 1980s to 2000s), launched to address acute crime problems with swift and stern punishment. For example, normal procedural requirements were replaced by summary judicial proceedings, and the Supreme Court’s final review and approval authority for death penalty cases was waived.
With the deepening of the economic reforms after the 2000s, stability – as opposed to change – frequented in public discourse. In addition, as China’s economic power ascended globally, its law has been scrutinised more closely and the pressure to conform to international standards has increased. A series of reforms in the death penalty law thus took place as a response to both the internal and external demand.
Procedurally, the Supreme Court took back its final review and approval authority in all the death penalty with immediate execution cases in 2007. The Supreme Court also issued several interpretations (e.g., the 1999 Decree on Stabilizing Criminal Trials in Rural Areas) and guides (e.g., the 2010 Regulations on Guiding Cases [released guiding cases involving capital offenses were Wang Zhicai’s homicide case, Li Fei’s homicide case, and Xin Yuanlong’s kidnapping case]; 2012 Guiding Opinions on Sentencing) to formalise death sentence decisions and reduce discretion due to personal and regional variations. Offenders who face the possibility of life imprisonment and death penalty are now entitled to legal representation.
Substantively, the 8th and 9th amendments to the Criminal Law in 2011 and 2015 removed 13 and 9 capital crimes respectively, making the current death penalty list of 46 offences more narrowly focussed on violent and lethal offences. In addition, the scope of the death penalty exempt population has been expanded, now including minors (under 18 years of age at the time of crime commission), pregnant women (at the time of the sentence), and the elderly (75 years or older, except those using exceptionally cruel methods during crime commission).
Public support for the death penalty remains strong in China, ranging from 58% to 97% based on survey studies using samples primarily from Chinese college students. These studies also revealed that deterrence, retribution, and incapacitation were the main reasons for the support of the death penalty in China.
Public opinion has increasingly played a proactive role in shaping governmental decision in China in the past decade. Penal populism exhibits several unique characteristics, reflecting some of the most acute conflicts and contradictions under the current Chinese system.
First, penal populism expresses the anger and frustration of the less privileged toward the political elites, bureaucratic powers, and business interests. It represents grassroots efforts to rebalance power relations in the name of equality and egalitarianism. In several recent high-profile capital cases, for example, penal populism pitches the poor against the rich, the powerless against the powerful, or the individual against the state. The demand of penal populism is case-specific, depending on the power relation between the parties in a particular case.
For example, in the Yao Jiaxin case, the public demanded for a death sentence with immediate execution due to the victim’s relatively inferior social status, despite the fact that Yao committed the crime in the heat of passion, voluntarily surrendered himself to the authorities, and provided compensation to the victim’s family. However, Wu Ying, who also faced the death penalty for illegal fundraising, gained widespread public sympathy as she was portrayed as being persecuted by predatory government officials. Similarly, the public expressed great sympathy toward Xia Junfeng, a street vendor, who killed an urban management officer.
Secondly, in the absence of victim advocacy groups, Chinese penal populism often targets individual cases only and is limited to judicial disposal of those cases rather than bringing about structural changes in penal policy. It is, however, worth noting that in recent years, a group of criminal defense lawyers, labelled as “sticklers,” worked fiercely on behalf of their clients to ensure that criminal defendants receive a fair trial. For example, in the Nian Bin poisoning case, Nian’s sister and his defence lawyers launched an effective Internet campaign that successfully captured the worldwide media and hooked the public interest, forcing the judicial officers to take extra caution in evaluating the evidence of this case. Lawyers involved in Nian’s case pursued a broader agenda of policy change.
So where does China go from here? Based on the global abolitionist movement and China’s inevitable role on the word scene, China will eventually abolish the death penalty. No one can predict the timetable for its abolition because there has been no clear correlation between an abolitionist and its political, economic, and socio-cultural characteristics; however, in the next few decades, as China continues to transition into a market economy, its criminal law and criminal procedure law, including the death penalty law, will become more formalised, rational, and humane. While incorporating social norms into their decisions, China’s judiciary will ultimately become more independent and free of interference from public opinion.