Situating the Role of Public Opinion in China’s Death Penalty Reforms

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(Photo Credit: daily sunny, Flickr Commons)

(Photo Credit: daily sunny, Flickr Commons)

After steering the country toward market-based economics, Chinese revolutionary and statesman Deng Xiaoping gained a reputation as an architect of liberal reform. Nevertheless, the post-Mao era in the early 1980’s began with a commitment by Deng to near perpetual “strike hard” (yanda) anti-crime campaigns. He recommended the liberal use of capital punishment, noting, “If there is a borderline choice between convicting or not convicting, go with conviction… if there is a borderline choice between killing and not killing, choose to kill.”[1] Since the mid-2000’s, however, the Chinese government has changed its views vis-à-vis the death penalty (see graph below).

The Supreme People’s Court (SPC) regained the power to review all death sentences in 2007. Research from the Dui Hua Foundation indicates a drop in the number of executions carried out each year since then. [2] These estimates mirror changes to the formal legal system, acts that have reduced the number of crimes punishable by death from 68 in 2011 to 46 in 2015.

Estimated Number of Executions Carried out in China (2002-2013)

Source: Dui Hua Foundation; Southern Weekly

Source: Dui Hua Foundation; Southern Weekly

Some have tied the softening of China’s death penalty policy to international criticism and popular outrage, especially from Chinese “netizens” (wangmin). Although public opinion has certainly influenced policymaking, the Chinese government does not always respond to calls for reform from the public, nor does the degree of change always track with public demand.

Instead, the role of public opinion takes a backseat to many other factors in China’s policymaking morass, especially bureaucratic turf battles within the Chinese government. In the realm of death penalty policy, those battles began with Deng’s yanda campaigns. Despite lacking the authority to amend basic legislation, the National People’s Congress Standing Committee (NPCSC) passed an amendment to the Organization of Courts Law on September 2, 1983. The amendment allowed the SPC to delegate enforcement to provincial high courts “when it needs to” (zai biyao de shihou) in capital cases.[3]

Delegating death penalty review to provincial courts provided legal support for widespread executions during yanda campaigns.[4] Voices both inside and outside of government, however, soon expressed concern over the large number of executions, which grew to approximately 24,000 in 1983. Judges writing for internal court publications argued that lower court approval of death sentences contravened Chinese law and led to lower quality judicial review.[5]

By 2002, lower court authority over death sentences was formally raised as an issue at the 16th National Party Congress. In the Second Five-Year Program for the Reform of the People’s Courts issued in 2005, the SPC declared that it would resume authority over death penalty approval, reflecting the ambitious maneuvering of its court president, Xiao Yang.[6]  After regaining death penalty approval authority, the SPC quickly curtailed executions, overturning approximately 15 percent of death sentences in the years after 2007.

Rather than spurring these changes, outrage against wrongful convictions has only emerged publicly since the mid-2000s, providing momentum to reforms already long underway. One of the most famous cases came to light in 2005, when She Xianglian was forced to confess to killing his missing wife in 1994, only to be exonerated when the purported murder victim returned to her hometown alive.

Less-than-robust public support for capital punishment might also sustain a gradual reduction in death penalty use—the trajectory favored, albeit ambiguously, by the Communist Party of China (CPC).[7]  According to one of the few empirically reliable surveys measuring public opinion on capital punishment in China, 58 percent of respondents in 2007-2008 were “in favor” of the death penalty’s general existence.  However, only 25 percent of respondents favored the death penalty, when informed about miscarriages of justice. 50 percent of respondents actually supported abolition, if the alternative was life imprisonment without parole plus restitution.[8]

Continued declines in the number of executions after 2007 indicate that branches of government, in addition to the judiciary, have also mobilized to decrease execution numbers.  The rising costs of the death penalty no doubt strain court, procuracy, and police budgets.  A 2011 Lancet article also finds that more than 90 percent of the organs from deceased donors used in organ transplants come from executed prisoners, an unintended consequence of the NPC’s legislative inaction on organ donation throughout the late 1990s and early 2000s.

Yet even with the trend towards death penalty limits, China still executes more people than the rest of the world combined. The government has fashioned several other harsh criminal sentences to take the place of execution, including death with two-year reprieve and life imprisonment without the possibility of parole – the “battle-tested method” for over-incarceration so widely used in American corrections policy.

Public anger at wrongful death penalty convictions has not undercut China’s position as the worldwide leader in executions. Rather, it appears that public opinion can only sustain reforms after government and party officials have resolved internal disputes over political authority (in this case, regarding final review over death sentences between 1983-2007). Bold actions by authorities and policy changes are thus still required to rein in the excesses of China’s death penalty policy: short of its complete abolition, China must eliminate the death penalty for all crimes except murder.

 

Footnotes:

[1] Trevaskes, Susan.  The Death Penalty in Contemporary China.  Palgrave Macmillan, 2012, p 169.

[2] The Dui Hua Foundation is a human rights organization urging the Chinese government to sharply reduce and eventually abolish the death penalty.

[3]  Luo Shuping, “The ‘return’ of death penalty approval authority urgently needs systemic safeguards” (Sixing hezhunquan “guiwei” jidai zhidu baozhang), Sichuan Adjudication (Sichuan Shenpan), 2006(4), p. 3.

[4] Trevaskes 2008, p. 395.

[5] See, e.g., Luo Shuping, “Current situation of death penalty review procedures and legal theory” (Sixing fuhe chengxu de xianzhuang ji falv sikao). Sichuan Shenpan, 1995(12), p. 7-10.

[6] Trevaskes 2008, p. 395.

[7] This reduction is evidenced by the Party’s statements following the Third Plenum of the 18th CPC Central Committee.

[8] Dietrich Oberwittler and Shenghui Qi, “Public Opinion on the Death Penalty in China: Results from a General Population Survey Conducted in Three Provinces in 2007-2008”, (published in 2009), Max Planck Institute for Foreign and International Criminal Law.

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Jonathan J. Kinkel is currently the Programs & Publications Officer at the Dui Hua Foundation. He received his PhD in 2015 from the University of Texas at Austin, where he focused on Chinese politics and comparative law. His recent publications include an article in Law & Social Inquiry on judicial politics and another in The China Quarterly on government systems for evaluating the performance of Chinese judges.

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