A draft amendment to China’s Criminal Law currently under review by the National People’s Congress Standing Committee (NPCSC) has generated a good deal of debate for its proposed limits on the use of the death penalty.
When details of the draft were first made public last August, much attention was paid to the proposal to remove the death penalty from 13 non-violent criminal offenses. Though this would likely mean little change to the extremely large number of executions carried out in China each year, such a reduction in the number of capital offenses would mark a symbolic step toward the government’s stated intention to gradually abolish capital punishment. The proposal sparked worry from some quarters, however, that the pace of reform might be too fast given anxiety about social order and especially the problem of official corruption, a non-violent offense subject to the death penalty but not currently under consideration for reform.
Similar concerns were on display last December as the draft amendment received a second reading by the NPCSC, according to a report published in the Legal Daily, a newspaper published under the auspices of the Ministry of Justice with supervision from the Communist Party’s Central Politics and Law Committee. At issue this time was another proposal in the amendment that would exempt elderly offenders aged 75 or over from execution.
Lack of Public Support for Exemption for Elderly
The initial draft amendment included an outright prohibition on use of the death penalty for individuals aged 75 or over at the time of sentencing. However, according to Guangzhou-based Southern Weekend, which also reported on the debate, online comment in China was almost unanimously opposed to the proposed ban on the death penalty for the elderly.
Liu Renwen, a legal scholar at the China Academy of Social Sciences (CASS), categorized opponents into three groups: (1) those who worry about a rise in crime as improving living standards allow Chinese to live longer, healthier lives; (2) those concerned about the possibility of criminal gangs exploiting the loophole created by an exemption and employing the elderly to commit serious crimes; and (3) those who fear that exempting the elderly from the death penalty will result in corrupt officials being spared from execution.
Comments from NPCSC delegates and members of the public prompted the NPC Legal Committee to add an additional clause to the proposal that would permit courts to impose the death penalty on elderly offenders “in cases where death is caused by especially cruel methods.” In the end, this revision did not appear to satisfy many.
Legislators Exchange Diverse Views
Although the NPC is sometimes derided as a “rubber-stamp” legislature, members of the body’s standing committee appear to have engaged in a thoughtful debate over the draft amendment, one that gave consideration to both public opinion and legal principles.
Ma Qizhi, an NPCSC member and former party secretary in the Ningxia Hui Autonomous Region, voiced strong support for limiting the death penalty and opposed any attempt to loosen the ban. Having spent many years involved in law-enforcement work, Ma took a position based on doubts about the efficacy of a criminal justice system that emphasizes severe punishment:
In the decades since the 1983 “Strike Hard” campaign, has our reliance on “more killing” solved our public-order problems? No! . . . Sentencing an elderly person to death has an impact on his or her relatives that is hard to overcome. We must be cautious on the issue of the death penalty. Exempting those aged 75 years and older from the death penalty is judicial progress in our country.
On the other side, several NPCSC members voiced opposition to legislating any death-penalty exemption for elderly offenders on the grounds that it violated the principle of “all are equal before the law.” Zheng Gongcheng, a professor at Renmin University in Beijing, was particularly outspoken on this point, saying that those aged 75 years or older who are of sound mind and have the capacity to act should bear responsibility for their behavior: “If those who reach the age of 75 can be exempted from the death penalty, the signal being sent by the law will definitely lead to an increase in crime—particularly vicious crimes—by the elderly.” He added:
The human rights of all should be protected, and we cannot overlook the human rights of the innocent or of victims. Foreign exemption [of the elderly] from the death penalty does not mean China must also do so; the abolition of capital punishment is part of a process in China. China has a tradition of honoring the elderly, but it has even more of a tradition of punishing evil and promoting good, as well as sympathizing with the innocent. We’re not talking about ordinary elderly people here; these are elderly people who have committed capital offenses.
Many other members took issue with the latest draft’s formulation of “in cases where death is caused by especially cruel methods,” finding it too narrow, subjective, and hard to apply.
Cheng Jinpei, a chemist and NPCSC member from Tianjin, voiced doubts about the utility of the phrase “especially cruel methods” and suggested measuring an act’s negative impact on society instead. Causing a train to derail or an airplane to crash might lead to injury and death for a large number of people, even though the act leading to the incident might not be particularly “cruel.”
While acknowledging the relative rarity of exceptional situations like these that would allow execution of elderly offenders, Jiangsu NPCSC member Li Lianning nevertheless argued that lawmakers had a responsibility to consider even these cases to ensure that legislation would be thorough. He suggested rewriting the exception to allow the death penalty in cases that result in death, involve especially cruel methods, or lead to particularly serious consequences. Similar proposals were put forth by other NPCSC members.
How Important is Adding a “Tail” to Legislation?
Speaking to Southern Weekend, Professor Zhou Guangquan of Tsinghua University Law School (and also a member of the NPC Legal Committee) expressed support for “legislators’ wisdom in the art of balancing” as they tried to weigh public opinion and emotion against the imperative to place strict limitations on use of the death penalty. He noted, however, that imposing restrictions on application of the exemption for elderly offenders in the form of a legislative “tail,” or exception clause, would make little practical significance.
According to data from the Supreme People’s Court (SPC) made available to drafters of the amendment to the Criminal Law, there were fewer than 10 cases annually involving individuals 70 years and older sentenced to death for serious crime. Southern Weekend amplified these statistics with the view of another expert:
A criminal-court judge from a higher people’s court in a central province informed this reporter that he had spent 11 years reviewing death sentences before the authority of final review over death sentences had been returned to the SPC [in 2007], and he could only recall approving one death penalty for a defendant between the ages of 60 and 75 during that period. In his personal experience, if the defendant is elderly and has committed a crime calling for fixed-term imprisonment, a relatively lighter sentence will be imposed. He believes that most of his fellow judges will have similar compassion.
While agreeing that adding a provision to weaken the exemption on execution of the elderly will have little practical significance given the rarity of relevant cases, Liu Renwen of CASS sees the insistence that no crime go unpunished as evidence of an imbalance between society’s interest in fighting crime and society’s sense of compassion. “Humanizing” criminal punishment in China—like the larger goal of reducing public demand for capital punishment—is likely to be part of a much more gradual process, one that will no doubt benefit from additional public discussion and debate.