In late August, the National People’s Congress (NPC) Standing Committee began to consider a revision to China’s Criminal Law that would significantly reduce the number of offenses eligible for the death penalty. China now allows the death penalty to be imposed for 68 crimes, 44 of which do not involve violence. Drafters of the new legislation propose removing 13 offenses from those eligible for capital punishment—a nearly 30 percent drop in the number of non-violent crimes that carry the death penalty. The proposed legislation would also prohibit the execution of offenders aged 75 or older.
Chinese news reports have hailed the proposal as an advance for human rights and a major step forward in the effort to reduce executions. The proposal has been controversial, however, with commentators expressing concern about whether China, where capital punishment remains popular with the public, is ready to take such a step. Moreover, even if the proposed revision is passed, it is not clear whether it will significantly change the implementation of capital punishment in China.
Most likely, the immediate impact will be symbolic, with crucial areas of concern left unaddressed. Of more lasting significance may be the public discussion that the proposed revision generates, discussion that could lead to more fundamental change in the way that Chinese people think about capital punishment and, perhaps, the frequency with which China puts its citizens to death.
Concerns Will Remain After Change
From both inside and outside China, critics of the country’s use of the death penalty generally focus on three main areas of concern. First is the extraordinarily large number of executions carried out each year. Although statistics on capital punishment are guarded as state secrets, Dui Hua estimates that China executed as many as 5,000 individuals in 2009, which is more than all other countries combined. Another focus of criticism is the lack of transparency with which China employs capital punishment. Besides keeping secret the number of executions, China also does not release aggregate data that would show how the death penalty is applied—for example, by defendant age or occupation, geographic distribution, or proportionally among different offenses. The review process undertaken by the Supreme People’s Court—the SPC assumed final say on all capital sentences through reforms introduced in 2007—is far from clear. And though China’s spreading use of lethal injection has received significant attention, details about the actual process remain shrouded in mystery.
The current legislative proposal is aimed at the third main focus of concern for critics of capital punishment in China: the large number of criminal offenses eligible for the death penalty. Proponents of the legislation acknowledge that the 13 crimes in question are economic ones for which the death penalty has been seldom, if ever, used. If published reports are any guide, the death penalty is most often imposed in China for violent offenses such as murder, robbery, rape, and kidnapping, as well as for serious drug offenses. It appears that only a handful of cases each year involving elderly Chinese who commit crimes are serious enough to warrant the death penalty. Considering these factors, the potential impact of the legislation on the number of executions is likely to be limited.
Symbolic Step Worries Some
A reduction in the number of capital crimes, regardless of how many lives may be spared, would at least make concrete something that Chinese officials have been saying for years: that China is gradually moving to abolish the death penalty. Some in China, however, remain opposed to this long-term policy goal and warn that China must not move too quickly toward abolition. Chinese advocates of death penalty reform often look to foreign contexts to justify their views. This is not simply a tribute to the impact of international pressure, though stances taken by Western (and particularly European) governments and NGOs opposed to the death penalty have influenced Chinese reforms. It is more a recognition of reality: most nations have either abolished the death penalty or limited its application so substantially as to make it virtually defunct.
Chinese officials acknowledge this trend but, when speaking of curbing use of the death penalty, mainly speak of the need to be more cautious in imposing it. Enacting laws to reduce the number of capital offenses would be a more definite move toward reduction than simply repeating the slogan “kill fewer [and] kill carefully.”
Zhou Guangquan, a Tsinghua University professor and member of the NPC Legal Committee, revealed in an interview that during the drafting process some committee members recommended striking the death penalty for additional crimes. It was ultimately felt that the 13 chosen could serve as a preliminary step that would help the public get used to more limited use of the death penalty while making future reductions possible.
But even the modest proposal has been criticized by those in China who worry about moving too far, too fast. The emphasis on non-violent economic crimes has focused attention on other crimes that are not included in the proposed revision, such as corruption and taking bribes. Corruption is a very sensitive issue in China today, and the public feels the government is not doing enough to root out the problem. Observers warn that any proposal to eliminate the death penalty for all non-violent offenses would meet with fierce popular opposition. One member of the NPC Standing Committee, Chen Sixi, even felt obligated to make clear to the public through an online forum that corruption crimes were never considered in drafting the revision, and that China would continue to harshly penalize such offenses.
Popular Opinion, Public Discourse
Emerging from the domestic debate over capital punishment is the fact that the majority of Chinese citizens still support the practice. Indeed, even opponents of the death penalty concede that many Chinese have deep-rooted cultural beliefs about retributive justice and the death penalty’s value as a perceived deterrent to criminal behavior. It is important to note, however, that reduction in the use of the death penalty among China’s neighbors as well as worldwide has often been spearheaded by impassioned political leaders, rather than driven by bottom-up support. Taiwan and Korea have sharply curtailed executions over the last decade even though popular support for the death penalty remains strong. And in Macau and Hong Kong, where the death penalty has been abolished, the public is not clambering for its return.
In fact, public opinion on the death penalty in China is talked about far more often than it is reliably measured. As researcher Zhou Guoliang has shown, polling on the subject has been sporadic and lacks statistical rigor. A 1995 poll of more than 5,000 individuals carried out by the Chinese Academy of Social Science showed more than 95 percent supported the death penalty, and other polls have yielded similarly extreme results. But in a poll conducted in 2007 and 2008 (see graph), only 58 percent of adult respondents from Beijing, Hubei, and Guangdong expressed support for the death penalty, with 14 percent opposed and 28 percent saying they were “not sure.” These data, described by Zhou as some of the most valid collected to date, suggest a large portion of the Chinese public may not have as deeply held beliefs about capital punishment as usually thought.
This finding lends support to the idea among many legal experts that more information and public discussion will help to shape popular views on capital punishment in China and dispel enduring beliefs about its efficacy. For example, Prof. You Wei, who heads the China Justice Research Center at Shanghai’s East China University of Political Science and Law, has written that death penalty reform needs to take public opinion into consideration but that, in turn, further space must be opened up for discussion that incorporates a variety of voices and more transparent, concrete statistics. Chen Guangzhong, one of China’s pre-eminent criminal justice experts, wrote in 2009 about the importance of publishing the number of executions for educating the public about the use of capital punishment.
At the end of the day, perhaps the most significant outcome of the proposal to reduce the number of capital crimes may be the debate it has triggered in China. A public discourse about the relationship between punishment and social stability promises to spark more discussion about how China should pursue legal reform and progress in human rights in ways that strengthen transparency, public over-sight, and rule of law in the country. More so than international pressure, it is these discussions—especially if allowed to develop freely in Chinese society—that will have the most impact on China’s future development, not only in terms of the death penalty but in many other areas as well.