Wednesday, November 30, 2016

Is Life Without Parole a Signal of China's Will to Reduce Executions?

High ranking officials Bai Enpei (left) and Wei Pengyuan (right) sentenced to life without parole for extreme corruption charges. Image credit: Comm News and Caixin.

Former high-ranking officials Bai Enpei and Wei Pengyuan have become the first individuals in China sentenced to life in prison without the possibility of a sentence reduction or parole (“life without parole,” or LWOP). The sentences for Bai and Wei were made possible by last year’s amendments to the PRC Criminal Law, which included a new provision that authorizes judges to issue LWOP along with suspended death sentences in extremely serious corruption cases.

Before these cases, it had become common in China for high-ranking officials to receive sentence commutations after their suspended death sentences, effectively allowing for release on parole several years later. The judgments for Bai and Wei, however, state explicitly that after a two-year reprieve from their death sentences, they must begin serving LWOP sentences.

On October 9, 2016, the Anyang City Intermediate People’s Court in Henan province found that Bai abused his posts and illegally amassed more than RMB 247 million yuan (approximately USD $37 million) in assets. (Bai had previously served as Party Secretary in Yunnan and Qinghai provinces and was most recently a Vice Chair of the National People’s Congress Environment and Resources Protection Committee.) A week later, the Baoding City Intermediate Court in Hebei province similarly found that Wei kept more than RMB 200 million yuan (approximately USD $30 million) at his home, corroborating suspicions that Wei received bribes to approve coal projects.

Bribery charges in excess of RMB 3 million yuan trigger a maximum penalty of death, but other defendants accused of receiving millions more in bribes have still received sentences that leave open the possibility of future release (e.g., Zhou Yongkang and Liu Zhijun). Bai and Wei have thus become the first “tigers” ensnared in Xi Jinping’s anti-corruption campaign to receive sentences mandating that they die behind bars.

Observers Question Legality of New Life Without Parole Sentences

Since the sentences of Bai and Wei were reported, some informed observers have questioned whether the courts properly applied the law, with attorney and microblogger Chen Youxi emerging on social media as a leading critic. When the Criminal Law was amended last year, Dui Hua noted that Article 383—which covers official corruption—authorizes courts to simultaneously pronounce sentences of LWOP and death with two-year reprieve during initial judgment (as opposed to courts issuing LWOP decisions after completion of the two-year period of reprieve). Consistent with Article 383, the courts in the cases of Bai and Wei both pronounced the LWOP sentences at the time of judgment.

Attorney Chen acknowledges that Article 383 authorizes courts to pronounce LWOP sentences, but finds that the Criminal Law only allows the court to amend a suspended death sentence after the defendant successfully completes the period of reprieve. Legally speaking, completing the death penalty suspension is not a foregone conclusion—for instance, the defendant must admit guilt and no new crimes can be discovered during the period of reprieve.

Chen claims that issuing LWOP as a condition of a suspended death sentence assumes that the defendant will successfully complete the reprieve period. According to Chen, a broader analysis of the legislative and regulatory framework of the Criminal Law indicates that the courts’ actions and Article 383 violate the legal logic relevant to suspended sentences.

Is Life Without Parole a Step Towards Abolishing the Death Penalty for Corrupt Officials and the General Public Alike?

Despite Attorney Chen’s objections, the sentences given to Bai and Wei are likely to be upheld, as they come in the context of China’s broader effort to combat corruption and to place serious limits on the death penalty. Since 2011, 22 non-violent crimes have been removed from the list of capital offences. Beijing Normal University Criminal Law Institute Professor Yuan Bin believes that capital punishment is a source of tension between the legal system and Chinese society: on the one hand, corruption is primarily a non-violent offense that does not directly threaten lives, and so the death penalty seems disproportionate; on the other, there is strong public support for harsh punishment of corrupt officials, which suggests that efforts to abolish the death penalty for offenses such as bribery would meet stiff public resistance.

Further complicating matters, despite public support for harsh punishment, the current trend in sentencing is against executing corrupt officials. Though three high-ranking officials were executed in 2011 for taking bribes, since 2012, when Xi Jinping came to power and launched his anti-corruption crackdown, no high-ranking officials charged with accepting bribes have been executed.

The June 2013 sentencing of Liu Zhijun is seen by many as a turning point towards leniency for corrupt officials. Though he was found guilty of taking bribes totaling more than RMB 64 million yuan (more than USD $10 million), instead of immediate execution he received a suspended death sentence. According to Southern Weekend’s count, among high-ranking officials criminally charged since the 18th Party Congress, six have received life in prison with no imposed restrictions on the possibility of parole (including Zhou Yongkong and Ling Jihua) and 21 have received fixed prison terms.

At least some lawyers and judges have suggested that the trend against executions in official corruption cases might lead to abolition of the death penalty altogether. A “highly experienced” judge commented on Chen Youxi’s microblog that eliminating capital punishment for official corruption might provide a model for total abolishment of the death penalty. The judge noted that if the death penalty was phased out, China would join more than 100 nations that have legally abolished the death penalty or have done so in practice. Most likely, even if China eliminated executions in practice, the death penalty would almost certainly remain on the books as a punishment option in extreme cases.

Often overshadowed by debates over the death penalty, life imprisonment without parole is also a controversial international topic. The UN General Assembly, for instance, since 2006 has regularly called for immediate abrogation of juvenile LWOP sentences in all countries. From 2006-2008, the US cast the lone dissenting vote to this resolution, but reversed its stance in 2009. The US Supreme Court then found in the 2012 case Miller v. Alabama that the Eighth Amendment of the US Constitution “forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders.”

In the aftermath of the Miller case, Dui Hua also noted LWOP for adult offenders runs counter to the spirit of international conventions, including those to which the US is a party. The International Covenant on Civil and Political Rights (ICCPR) states that the aim of prison systems “shall be [prisoner] reformation and social rehabilitation”—a futile goal if an eventual re-entry to society is not within reach. Nonetheless, LWOP sentences are common in the US for violent crimes like homicide, and according to the Sentencing Project, there are more than 49,000 people in American prisons serving sentences of life without the possibility of parole (as of 2012). By comparison, lifetime prison sentences are not an option in many countries across Latin America, Europe, and Asia.

In China, the goal of deterring corruption appears to outweigh the controversy over imposing LWOP for non-violent crimes. Professor Ruan Qilin of the China Politics and Law University Criminal Justice Institute suggests that LWOP sentences are appropriate given China’s fight against corruption and the rarity of executions for officials convicted of corruption. Instead of executing corrupt officials, LWOP preserves a deterrence function, while at the same time, citizens fed up with corruption are “comforted and placated” (抚慰和鼓舞). Professor Ruan claims that LWOP has a greater deterrent effect than sentencing practices in other countries, specifically questioning those in Spain, where even violent terrorists are regularly released early despite initial prison sentences hundreds of years long.

Phasing out the Death Penalty: Welcome to the Life Without Parole Era?

It remains to be seen whether the sentencing treatment of Bai and Wei is a harbinger of change. Will the Chinese government note public reaction to the use of LWOP in corruption cases and adjust accordingly? Even if the public is generally amenable to LWOP for corrupt officials, societal tensions will still arise in response to wrongful executions of ordinary citizens (e.g., the recent investigation into officials involved in the wrongful conviction of 18-year-old Huugjilt in 1996). The knowledge that, in cases of corruption, high-ranking political officials are largely exempt from capital punishment (and therefore from the possibility of wrongful execution), while ordinary citizens have no such protection, will likely not sit well with the general public. Should these circumstances swing public opinion against general use of the death penalty, future amendments to the Criminal Law might include LWOP as a possible replacement in an array of criminal offenses.