During his recent visit to the United States, Chinese President Hu Jintao conceded both the “universality of human rights” and the fact that “a lot still needs to be done in China in terms of human rights.” This admission confirmed what many already knew, that China has repeatedly and publicly recognized the universal nature of human rights and the need for progress on this question since the mid-1990s.
Hu Jintao’s declaration nonetheless presents the Chinese government with an unprecedented opportunity to seize the initiative in terms of human rights. Beijing should abolish the death penalty in China, thereby leaving the United States as the last permanent Security Council member to practice capital punishment.
Although both nations continue to carry out capital punishment, the number of annual executions is hardly comparable: 46 in the US in 2010 versus an estimated 5000 in China for the same period. It should be noted, however, that both nations have experienced a notable decrease in use of the death penalty: the number of executions dropped 12% in the US in 2010 and at least 50% in China over the past few years. According to the Death Penalty Information Center’s most recent report, the majority of American voters favor alternative forms of punishment. But, we do not know if this is currently the case in China.
The Peoples Republic has ratified, like the United States, three of the United Nations human rights treaties and has also issued nine White Papers on the topic. Unlike Washington, however, Beijing has favored the promotion of economic and social rights over the civil and political, hardly surprising given the country’s history of Marxism and the difficulties in respecting civil and political rights in a One-Party state. The government is determined to feed its population of 1.3 billion and lift several hundred million citizens out of poverty before fully embracing civil and political rights.
But, support for economic and social rights does not preclude abolition. The abolitionist ideal, although relatively new to China, has swiftly put down roots among the nation’s leading legal scholars and practitioners. Academics and defense lawyers have mounted an informally organized coalition of experts that questions the State’s ability to get the facts straight and to execute only in the most extreme cases. Their work over the course of the past five years has developed into a full-fledged abolitionist movement, the first of such magnitude in the history of the country. Not only have these lawyers signed petitions and published their views, they have also welcomed the expertise of the European Union in matters concerning abolition and engaged in straightforward discussion of capital punishment with their Western colleagues.
In traditional China, law was codified and interpreted by the State, with no independent judiciary. Nonetheless, a death sentence was always reviewed by the local magistrate’s superiors and technically the Emperor himself approved the final decision to execute. Criminal justice in the Maoist era was dominated by the political context; punishments were influenced by the offender’s class status, his attitude to his offence and the prevailing political line. Mass campaigns and summary trials sentenced hundreds of thousands to their death during the Anti-Rightist campaign of the late 1950s and the Cultural Revolution of the 1960s.
With the advent of the Open Door policy under Deng Xiaoping, criminal procedure law was finally codified. One of the aims of legislators was to signal an end to the arbitrary punishments and widespread abuse that marked the political upheavals of the previous thirty-year period. Nonetheless, despite the success of the economic reforms there was growing political anxiety at the rising crime rate and increasing corruption in the transition to a market economy. In 1983 the first of a series of Strike Hard campaigns was adopted, targeting criminal gangs and violent crime. By 1996 there were perhaps as many as eighty capital crimes on the Chinese statute books. According to revisions in the Criminal Procedure Code of the PRC, undertaken in 1996, and in the Criminal Law revised the following year, sixty-eight crimes are currently subject to the death penalty, including economic crimes.
The series of legal reforms designed to institute rule of law in China has led to certain reforms in the use of capital punishment. In 1997, during the revision of China’s Criminal Law, theft was removed from the list of death penalty offenses. Before the revision, theft accounted for 30-50% of all executions, meaning that a disproportionate number of executees were peasants. The actual manner in which death penalty cases are tried did not change until 2007, when the Supreme People’s Court (SPC) regained the authority to review all capital cases, a responsibility which had been given to provincial courts in 1981 in an effort to combat rising crime rates. All death penalty cases must now be reviewed by the SPC, a policy which, according to Chinese state media in September 2010, has resulted in overturned verdicts in 15% of cases in 2007 and 10% in 2008. According to the United Nations, however, the SPC review function is little more than a “rubber stamp”, since in numerous cases the presentation of new evidence, which should have resulted in a retrial or overturned verdict, did not.
The Chinese government also promoted a National Human Rights Action Plan for 2009-2010 to improve civil and political rights. Capital punishment was designated a focus area under the plan under the slogan “Kill fewer, kill carefully: “[The] Death Penalty shall be strictly controlled and prudently applied”. Due to the continued lack of transparency regarding the number of annual executions, a figure tightly guarded by the Chinese government, an accurate analysis of the plan’s impact is impossible. A draft amendment to the criminal code was presented in August 2010 to remove 13 economic crimes from the list of 68 death penalty crimes. This initiative may have less to do with respect for human life and more to do with a desire to prosecute ex-bankers and former officials currently residing in countries which are reluctant to extradite them due to the fear that they will be executed. Thus far, the National People’s Congress has not promulgated the amendment.
But why do capital punishment cases in China number in the thousands? Certain scholars have suggested that the central government provides the localities with quotas, using the death penalty as a deterrent – in Chinese terms, “killing the chickens to scare the monkey”. If in fact the central government does exercise such control over the localities, then abolition would be relatively straightforward. The Supreme People’s Court could issue a moratorium on the use of capital punishment, to be followed by the promulgation of abolitionist legislation by the National People’s Congress. The highly centralized nature of Chinese governance would certainly make abolition far easier to implement than in a federalist country such as the United States.
Abolition of the death penalty would place China in the enviable position of having achieved the ultimate in political and civil rights. Rather than devote endless political dribble to defending the state of human rights in China, Beijing should make a bold statement, and put pressure on the United States to do the same.
Amendment on February 26, 2011:
The Standing Committee of the National People’s Congress announced on February 25 an amendment to the Chinese Penal Code, reducing the number of crimes subject to the death penalty from 68 to 57. Thirteen economic or non-violent crimes were removed from the list, including robbing ancient cultural ruins and the “teaching of crime-committing methods”. This amendment is consistent with China’s overall policy method of “feeling for stones while crossing the river”. According to Liu Mingxiang, deputy dean of Renmin University Law School, “To reduce the death penalty step by step is a good method for China.” This author agrees, although she would firmly suggest that the Chinese government seize the initiative and abolish the death penalty altogether.