Thursday, September 1, 2011

Moving the Mountain: China’s Struggle for Death Penalty Reform

The Li Changkui (李昌奎) case demonstrates the negative effect of public opinion and official interference on death penalty reform in China. The Zhaotong Intermediate People’s Court sentenced Li to death for one count of rape and two counts of murder in July 2010. Li appealed, and the Yunnan High People’s Court revised the sentence in March 2011 to death with two-year reprieve—a uniquely Chinese sentence that is virtually always reduced to either a life or fixed-term sentence.

By several accounts, these two trials were not marred by procedural error, and according to a 2008 op-ed by Hu Yunteng, vice-director of the Research Office of the Supreme People’s Court, a suspended death sentence is not out of the ordinary for a homicide case involving personal disputes. (Xinhua reported that Li proposed to one of his victims before the murders but was rejected by her family; the other was the first victim’s little brother.) In the op-ed published by Legal Daily in March 2008, Hu said:
In the past, when homicide cases arose from contradictions among people and neighborhood disputes, a large number of defendants were sentenced to death with immediate execution; now, however, the death penalty with immediate execution is nearly unknown in such cases.
There was little media attention to Li’s case until about three months after the high court’s verdict. In June 2011, in Xi’an, Shaanxi Province, Yao Jiaxin (药家鑫) was executed for intentionally killing a woman after accidentally hitting her with his car. Media attention to the Yao Jiaxin case started before Yao went to trial in Xi’an and mostly served to decry the heinous nature of his crime. Although Yao was executed in Shaanxi, his high-profile case spurred an onslaught of comparative media reports and forum posts on the perceived leniency that Li had received in Yunnan.

The brother of Li’s victims holds up a sign protesting Li’s reduced sentence of death with two-year reprieve. Photo credit: Huang Xiuli, Southern Weekly

Responding to popular appeals for harsher sentencing, the Yunnan High People’s Court held a press conference on July 6, 2011. Judges Zhao Jiansheng and Tian Cheng, the court spokesman, emphasized the need to change the traditional concept of retributive justice. The judges explained that Li was eligible for a lighter sentence because he committed a crime of passion, turned himself in to authorities, and offered to compensate the victims’ family. Judge Zhao asserted that “the Supreme People’s Court requires that the death penalty be extremely carefully applied in cases that are caused by civil disputes and conflicts between married couples, families, and neighbors.”

The July press conference indicated that the Yunnan High People’s Court was prepared to withstand public pressure and stick to its verdict of death with two-year reprieve. But the court, citing Articles 204 and 205 of the Criminal Procedure Law, announced a retrial only a week later. Then on August 22 it reversed its decision and put Li back on death row.

The reversal led to demands for retrial from another victim’s family. Sai Rui (赛锐) was 21 when he stabbed a woman to death for refusing his romantic advances. Like Li, he turned himself in to authorities, was sentenced to death by the Zhaotong Intermediate People’s Court, and ultimately sentenced to death with two-year reprieve by the Yunnan High People’s Court. The media did not report heavily on the case before July 2011, and the appeal verdict, issued in November 2009, was upheld.

Timeline of Li, Sai, Yao Cases

Date Event
6/18/2008 Sai Rui murders a young woman at a café in Zhaotong, Yunnan, and flees the scene.
5/2009 Zhaotong Intermediate People’s Court sentences Sai to death.
11/2009 Yunnan High People’s Court (YHPC) revises sentence to death with two-year reprieve, citing 1) Sai turned himself in; 2) it was a crime of passion; and 3) first trial sentencing was inappropriate.
5/16/2009 Li Changkui rapes and murders a young woman and her brother in Zhaotong and flees the scene.
5/20/2009 Li turns himself in.
7/15/2010 Zhaotong Intermediate People’s Court sentences Li to death, rejecting the defense's argument that it was a crime of passion.
10/20/2010 Yao Jiaxin hits a woman with his car and stabs her to death in Xi’an, Shaanxi.
3/4/2011 YHPC revises Li’s sentence to death with two-year reprieve.
4/22/2011 Xi’an Intermediate People’s Court sentences Yao Jiaxin to death.
5/20/2011 Shaanxi High People’s Court upholds Yao’s sentence on appeal, sends to SPC for review.
6/7/2011 Yao is executed.
7/6/2011 YHPC holds a press conference regarding its decision, emphasizing 1) reform of retributive killing; 2) Li turned himself in; 3) lesser social impact of murder cases resulting from personal disputes; and 4) SPC policy of “killing less, killing carefully.”
7/10-13/2011 YHPC announces trial review procedure, and provincial procuratorate suggests retrial.
8/2011 Victim’s family calls for a retrial for Sai.
8/22/2011 YHPC holds retrial in Zhaotong and sentences Li to death, ruling that the trial of second instance was correct in procedure but inappropriate in sentencing.

Due to its location along the Burmese border, Yunnan deals with a disproportionate amount of drug cases that carry the death penalty. (In 2006 Dui Hua uncovered the only complete timeline giving the number of executions in a Chinese administrative unit, Maguan County in Yunnan. In a county of 400,000 people, six were executed in 1999, the latest year for which statistics are available.) Partly because drug cases are at the intersection of capital punishment and HIV, and partly because of its high number of executions, Yunnan was an early adopter of death penalty reform. In 1997 its provincial capital, Kunming, was the first Chinese city to start using lethal injection. (HIV concerns were pivotal because traditional gunshot executions caused blood spattering that could lead to infection.)

The cases of Li, Yao, and Sai demonstrate that Yunnan continued its commitment to death penalty reform through judicial activism that was not occurring in other provinces. In 2008 the Supreme People’s Court (SPC) approved 92.5 percent of death penalty cases submitted by the Yunnan High People’s Court, three percentage points higher than the national average, according to court President Xu Qianfei. Pressure from vocal retributive-justice supporters did cause the court to explain its actions. But the quickness of the court to reverse its stance and hold a retrial seems more characteristic of orders from above than criticism from below.

In 2007 the SPC regained the sole authority to review capital cases, after which the number of death sentences with immediate execution fell below the number of death sentences with reprieve. According to Regulations Governing Issues in the Review of Death Penalty Cases by the Supreme People’s Court, issued on February 27, 2007, the lower court’s decision to execute should be approved during SPC review if “the determination of facts and application of the law … are deemed to have been correct, the penalty appropriate, and the legal proceedings in accordance with the law” (emphasis added).

“Inappropriate penalty” is the reason both the Yunnan People’s Procuratorate and Yunnan High People’s Court gave for recommending and ultimately conducting a retrial. Both stated that the facts, evidence, and procedures were clear and correct. The language and current judicial hierarchy suggest that intervention may have occurred on the level of the Supreme People’s Court. That said, there is conflicting information on whether death with two-year reprieve falls under the scope of SPC review. In the case of Li Changkui, media reports do not mention that the Yunnan High People’s Court had submitted its initial verdict for review. In an August 22 report on the retrial, however, Xinhua states prominently that the reinstated death sentence is pending SPC approval.

“Abolishing the death penalty … is a good legal ideal that needs to be determined at the national level, it cannot be determined by a court verdict,” Deng Zibin, Deputy Director of the Criminal Law Department of the China Academy of Social Sciences’ Legal Studies Center, told Southern Weekly.

Deng implies that wider-reaching national directives could come on the coattails of this case, but obstacles exist. Writing about the problems faced by SPC review in 2008, the vice-director of the Research Office of the Supreme People’s Court highlighted that 1) “there are strong demands by relevant bodies and personnel to intervene in death penalty review procedures,” and 2) “if there is a rise in extremely violent crime and public calls for more frequent use of the death penalty strengthen, there will be tremendous pressure that will affect whether restriction of the death penalty can be maintained.”

What’s clear is that both the Supreme People’s Court and the Yunnan High People’s Court are advocates for death penalty reform, but that popular opinion and a desire for national uniformity are standing in the way of both transparency and the right to life.