Wednesday, September 1, 2010

Translation & Commentary: "Greater Steps Can be Taken to Reduce the Death Penalty"

Last week, it was announced that China’s National People’s Congress Standing Committee was reviewing a major revision to the country’s Criminal Law, one that would potentially eliminate use of the death penalty for 13 non-violent criminal offenses.

This revision, if carried through, would at least partly address one long-standing critique of China’s use of capital punishment: the relatively large number of crimes for which the death penalty can be imposed. Under the current law, 68 crimes are eligible for the death penalty—a significant number of which are non-violent in nature. Other areas of concern, such as the huge number of executions carried out each year and the lack of transparency in the way that capital cases are decided, will remain unchanged.

Though international pressure has played a role in motivating death-penalty reform, much more credit has to go to the small but vocal group of legal scholars, activists, and officials who over many years have been pushing for changes to China’s system of capital punishment. Many of these reformist voices have been heard again this week, rightfully welcoming the legislative proposal as a small, but important, step towards bringing China’s practice more in line with international norms—if not outright abolition of capital punishment, at least strict limits on its use.

One such legal scholar is Tsinghua University professor Zhou Guangquan, who recently was interviewed by the Guangzhou weekly newspaper Southern Weekend (Dui Hua translation below). Zhou notes that many had hoped to see more substantial cuts in the number of crimes eligible for the death penalty, but that the 13 crimes selected for revision had been chosen because there had been few, if any, cases in recent years in which the death penalty had been applied. By taking a more gradual approach, Zhou suggests, China can avoid too much criticism from the public, which remains highly supportive of capital punishment.

Zhou notes that legislative reform shouldn’t always simply follow the lead of popular opinion, but in the end, legislators cannot simply ignore the public. But changing public opinion is much more difficult than changing the law—especially when it reflects long-held cultural views about justice. Important steps need to be taken in that direction—for example, by continuing to challenge the conventional wisdom about the deterrent effect of capital punishment. A much more radical step would be to increase transparency. The Chinese public might develop a different view of capital punishment if they knew more about how many people are being executed each year and for what.


Greater Steps Can be Taken to Reduce the Death Penalty

(Interview with Zhou Guangquan, member of the Legal Committee of the National People’s Congress and Tsinghua University professor)

Southern Weekend
August 26, 2010

First Eliminate a Few, Then Check the Level of Society’s Tolerance

Southern Weekend (SW): Among the 68 capital crimes in China, the death penalty is seldom or never used in nearly half. What is your understanding of the legislative body’s thinking regarding the present [proposal to] revise the Criminal Law and eliminate 13 of them?

Zhou Guangquan (ZGQ): This revision has very positive significance for future development of criminal legislation in China and clarifies the fundamental value orientation of China’s Criminal Law. First, when adding new crimes [in the future], we won’t automatically add the death penalty. At the same time, this is to a certain degree a response to foreign concerns about the issue of capital punishment in China.
    The departments responsible for drafting the law carried out much research beforehand. They did some partial calculations and found that nearly 50 percent of countries worldwide have completely abolished capital punishment, five percent only have death penalty provisions for military crimes or war crimes, and 20 percent of countries, though having provisions for capital punishment, have not carried out executions in the past decade and have, in essence, abolished the death penalty. In a nutshell, only a minority of countries retain the death penalty and an extremely small minority actually carry out executions. For instance, the United States in 2006 only executed just over 50 people, and in Japan fewer than 10 are executed each year. In those countries that both retain and use the death penalty, individuals who are put to death are mostly criminals with blood on their hands. In other words, it is basic practice among countries retaining the death penalty to use it primarily against murder.
    The 13 crimes for which we’re eliminating the death penalty are mainly ones that, when looking at the 1997 Criminal Law, [the death penalty] had never been used or has been used only rarely. The Supreme People’s Court (SPC) and Supreme People’s Procuratorate provided some data, and there were some [crimes for which the death penalty] had never been used and some for which the rate of use was so low as to be basically negligible.

SW: We’ve heard that the SPC had recommended that the death penalty also be eliminated for the crime of transporting drugs but that this was not accepted. What other crimes were under discussion by the legislative organ but ultimately not included in the group of crimes for which the death penalty would be eliminated?

ZGQ: To be sure, there were some other crimes discussed that ultimately did not make the cut. With respect to eliminating the death penalty for trafficking and transporting drugs, scholars mainly took into consideration that many people who sell drugs are being used [by others] and that they are often from the lowest segment of society and get involved in order to earn a bit of money. According to court statistics, the harm of trafficking and transporting drugs is small, relatively speaking, and not as great as the harm [caused by] manufacturing and smuggling drugs. The legislative body probably considered that drug offenses are still relatively rampant in China and that it would be difficult to keep [the occurrence] down if the death penalty were eliminated.
    Everyone also recommended that the death penalty be removed from the crimes of fund-raising fraud and organizing prostitution. However, looking from the perspective of the legislative organ, it is still necessary to estimate just how great the criminal harm is and whether these crimes might be more widespread in future. Legislators also intend this [revision] as an experiment: first you eliminate a few [capital crimes] and then check the level of society’s tolerance. Some scholars actually believe we could take a bigger step and eliminate all at once more than 30 capital crimes that are seldom if ever used.

Rising Social Conflict is Social Background to Heavier Punishments

SW: Back in 1988, the National People’s Congress (NPC) suggested reducing capital punishment because, in comparison with other countries’ criminal laws, China’s made more use of the death penalty. Why is this proposal for legislative reform only been carried out now?

ZGQ: I have always thought that there has been a particularly great pressure to increase [use of] the death penalty facing criminal legislation over the past 30 years. This has been an unavoidable problem in legislating. Especially when adding new crimes, many people expect to see as many crimes as possible carry the death penalty. For example, two years ago some people advocated the death penalty for the crime of holding a huge amount of property from unidentified sources. This leads to [a situation in which] our criminal legislation is basically about “addition.” Especially in the period from the mid-1980s to the early 1990s, there was a definite gradual increase in [the inclusion of] the death penalty when enacting individual criminal laws and the overall level of punishments grew heavier. There are complex reasons for this, but especially during a transitional period with increasing social conflict and growing violent crime, the use of punitive measures seems to have fit with our habitual ways of thinking. Two years ago, the minimum sentence for kidnapping was reduced from 10 years to five years, and society was able to accept it. In my view, this was a turning point that showed that criminal legislation was not only about heavy punishments or a way of thinking that [focused on] “addition” and not “subtraction.”

Legislative Choices Cannot be Entirely According to Public Sentiment

SW: What were the considerations of legislators and experts regarding [the proposal to] stop using the death penalty for elderly people aged 75 years or older?

ZGQ: According to data provided by the courts, nationwide there are only a few cases each year involving people 70 years or older who commit serious crimes eligible for the death penalty—it’s in the single digits.
    The policy behind criminal legislation is the same as the policy for social insurance in China: we need to solve the problem of the elderly and children, because these two groups of people are rather special. The elderly are less capable when it comes to judgment and control, and they have slower responses. The Criminal Law must maintain a necessary lenience in response to the errors they commit, even those that are very serious. Moreover, we can imagine that a person in their 70s who commits a serious crime definitely does so for reasons that we can forgive, and in practice judges just can’t hand down [heavy punishments]. In Russia, the Criminal Law requires special treatment for offenders 65 years and over. A few countries even legislate that those over 70 cannot be punished, no matter what their offense. From ancient times, China has had lenient provisions for the elderly. The 1935 Criminal Law of the Republic of China prohibited the death penalty for offenders [above] the age of 80. The 1979 Criminal Law was established to bring order out of chaos, and there were too many considerations that needed to be focused on, so the problem of the elderly couldn’t be addressed.
    The current revision, in some sense, is a return to the legal tradition of forgiving the offenses of the elderly.

SW: Some members of the public have a hard time accepting reduction of the death penalty, including banning the use of the death penalty for people 75 years or older.

ZGQ: This is normal. There will always be a gap between popular thinking [lit., “intuition”] and the judgment of legislators when it comes to capital punishment—this is true throughout the world. In some European countries where the death penalty has been abolished, opinion polls show that nearly 80 percent of people oppose abolition. Legislative choices cannot entirely follow popular thinking; in the end, some decisions must be made that go against popular thinking.
    Why might popular thinking on the subject of capital punishment be unreliable? Because people generally proceed on the basis of personal experience or individual cases they know about, grossly exaggerating the harm in any particular case and prejudging that anyone definitely ought to get the death penalty. Legislators have to make considerations about universal implementation, taking normal harm into account rather than proceeding on the basis of particular cases or exaggerated cases. Many people believe that the crime of theft should carry the death penalty, because blithely stealing property worth tens or even hundreds of thousands creates great harm. This is exaggerating an individual case. Legislation shouldn’t be for extraordinary cases but, rather, should be done based on ordinary circumstances.

Death Penalty for Corruption and Bribery is Political Issue

SW: In recent years, very few people have actually been sentenced to death for corruption or bribery; most are given suspended death sentences. Many scholars advocated following standard international practice and abolishing the death penalty for corrupt officials, but there was no breakthrough on this issue in the current revision. When it comes to revision of the law related to capital punishment, [surely] China’s legislators must be taking popular thinking into account.

ZGQ: Capital punishment for corruption and bribery is not merely an issue of the Criminal Law; it’s also a policy issue and even a political issue. So, it’s a difficult subject and a focus of public opinion, and it’s necessary to proceed carefully. On this issue, perhaps legislators really considered or, one could say, respected public views.
    Compared to ordinary economic crimes, the crimes of corruption and bribery involve greater harm because, besides involving infringement of property, they also cause damage to the [sense of] honesty and fairness of public servants in carrying out their duties, shake public trust in state employees, and even shake the base of political power. When you add to that [the fact that] corruption and bribery [cases] can easily involve hundreds of millions [of yuan], without the threat of the death penalty it would be very hard for the public to accept [abolition] in light of China’s present circumstances like this. In fact, use of the death penalty in corruption and bribery cases is controlled extremely tightly, so even if the death penalty is retained, it won’t result in abuse. Looking long-term, we can discuss whether or not to eliminate the death penalty for corruption and bribery. It’s not as if we’re saying that it will be retained forever simply because we didn’t abolish it this time.

Abolition of Death Penalty Must Proceed in Stages

SW: It’s said that, prior to this revision of the law, the NPC carried out a survey of public opinion. What were the results? What reference value to they have for elimination of capital crimes, both now and in the future?

ZGQ: The public remains quite sensitive about proposals to abolish the death penalty, but its level of tolerance for the issue of capital punishment is better than it was three or four years ago. So, the SPC’s [efforts to] control capital punishment created the conditions for this legislation to eliminate capital crimes.
    Abolition of the death penalty in China must proceed in stages. Most of the 13 crimes [for which the death penalty is being] removed occur infrequently, and their removal won’t cause a shock to public safety, endanger state security, or produce negative consequences. But crimes like endangering state security, endangering national defense interests, and dereliction of duty by military personnel are not currently under consideration. Next up for consideration might be non-violent crimes like dereliction of duty or corruption and bribery. The third step is [considering] certain crimes [in the categories] of endangering state security and endangering national defense interests. Of course, these crimes are rather unique and are connected to the basis of political power. Perhaps the death penalty will always be retained [for these crimes]. It’s hard to predict.

SW: Some people are always concerned that public safety will get worse if the death penalty is used less. How do you see the connection between capital punishment and public safety?

ZGQ: Do you think that murderers don’t understand the concept of “an eye for an eye”? I think that every official knows that the Criminal Law imposes the death penalty for extremely serious cases of corruption involving more than 100,000 [yuan], but every year there are still so many corrupt officials who defy the law. This shows that the deterrent effect of capital punishment is limited, because everyone thinks they’ll get lucky and won’t get caught. Criminals basically don’t choose whether or not to break the law based on whether or not the Criminal Law provides for the death penalty. Reducing crime primarily depends on reform in the methods of social control. Why is it possible to eliminate the death penalty for some economic crimes? It’s because even without relying on the death penalty, reforms and unified economic order are enough to prevent many crimes. The German criminologist Liszt once said: “The best social policy is the best criminal policy.” This saying is still applicable in today’s China.