Tuesday, August 22, 2017

How Transparency in Death Penalty Cases Can Reduce Wrongful Convictions

He Jiahong (right) speaking on a forum at the "World Day Against Death Penalty", October 2014.

He Jiahong is a special kind of Chinese legal expert. He is a well-known legal scholar at Renmin University Law School in Beijing, where he specializes in criminal justice and the issue of wrongful convictions. He is also the author of detective novels and writes prolifically on legal subjects for popular audiences. He reportedly likes to describe himself as: “I am not only a jurist but a novelist, so I often have novel ideas about law.”

One of the ways in which He Jiahong expresses those ideas is through his public WeChat channel—a blog distributed to anyone who subscribes via the social media platform. Recently, he posted a piece with the rather provocative title: “The Number of Executions Should be Made Public.”

In China’s criminal justice discourse, public calls for greater transparency around the use of the death penalty are not unheard of but are nevertheless eye-catching when they do appear, especially from well-known legal experts such as He. Information related to the death penalty, including the number of executions carried out each year, continue to be treated as a closely guarded “state secret.” This is despite the fact that there are many indications that China has significantly reduced its use of capital punishment over the past decade—though it is still generally believed to be the world’s top executioner—and continues to face pressure from NGOs and United Nations human rights bodies to be more transparent about its use of the death penalty.

Changsha Court public announcement of death sentences. Source: Hu Guiyun.

He Jiahong raises some familiar arguments in support of greater transparency about capital punishment in China, including the importance of preventing wrongful executions, demonstrating the progress made in reducing the use of the death penalty, and the value of facilitating public discussion about the future of capital punishment. He clearly believes that openness and greater transparency will help build public trust in the judiciary and show respect for the public’s right to access such information.

He notes that the trend towards online publicization of court documents is making secrecy about capital punishment irrelevant. On this point, he is perhaps overly optimistic. Dui Hua and other organizations that have tried to use online platforms like the Supreme People’s Court’s national database of court judgments have found it seriously lacking when it comes to information about cases involving the death penalty and other “sensitive” subjects.

This suggests that the trend toward judicial transparency is already bound by pre-set limits on what information is considered “appropriate” for public disclosure. If the Chinese government were to do as He Jiahong recommends and make data about capital punishment public, it would first have to make the top-down decision to lift secrecy restrictions. The hope of a shortcut to judicial transparency through the release of court data is unlikely given such secrecy restrictions.


The Number of Executions Should be Made Public

He Jiahong

He Jiahong, professor at Renmin University School of Law. Source: Financial Times.

On April 27, 1987, a dismembered female corpse was found in the Mianjiang River of Mayang County, Hunan. After searching missing-person’s reports, identification by family members, and blood-type analysis, the police confirmed that the deceased was a woman from Guizhou named Shi Xiaorong who had been missing for a month after working at a local hotel.

After several months of investigation, police determined, based on the manner in which the culprit had dismembered the corpse that the killer was a butcher named Teng Xingshan… On December 6, police placed Teng Xingshan under custody and investigation. Following continuous interrogation, Teng finally “confessed.” On December 13, 1988, the Huaihua Prefecture Intermediate People’s Court sentenced Teng Xingshan to death. On January 19, 1989, the Hunan Higher People’s Court rejected Teng’s appeal, upheld the original verdict, and approved his death sentence.

In order to ensure that the death penalty is applied impartially and correctly, Chinese law mandates a special review and ratification procedure for death penalty cases, on the principle of a two-stage judicial process of trial and appeal. According to the provisions of the 1979 Criminal Procedure Law, death sentences with two-year reprieve were to be reviewed by high people’s courts and death sentences with immediate execution were to be reviewed by the Supreme People’s Court. Regardless of whether or not the defendant filed an appeal, cases involving the death penalty would all be subject to an automatic review process. In 1983, in an effort to “strike hard and fast” against criminal acts that seriously endangered public security and social order, the Supreme People’s Court delegated the power to review death sentences for homicide, rape, robbery, setting explosions, and other serious crimes to high people’s courts. To a certain degree, this led to a loosening of the review and control procedures over the death penalty. Since high people’s courts in provinces, municipalities, and autonomous regions were generally the courts hearing appeals in death penalty cases, delegation of the power to review these cases meant that the same court became responsible for hearing the appeal and carrying out the final review. The review and ratification process that had been originally intended as a way to strictly control use of the death penalty became effectively meaningless.

Teng Xingshan’s case was handled under the combined “two-in-one” process of appeal trial and death sentence approval that existed during that particular period of Chinese law. On January 28, 1989, Teng Xingshan was executed by gunshot. However, that wasn’t the end of the case, because the so-called “victim” was still alive and would later “come back to life.”

In 1993, Shi Xiaorong finally made it home to Guizhou after having been abducted and trafficked to Shandong. When she heard about the Teng Xingshan case, she said that she didn’t even know Teng, and certainly did not have any “dubious relationship” with him. She even wrote to the Hunan court, asking it to revoke its mistaken judgment that she had “dubious relations” with Teng Xingshan, had been “murdered” by him, and demanded compensation for her reputation damage. But there was no response from the court. Shi now has a new life and no longer cares about an old case that has nothing to do with her.

News that the “dead had come back to life” eventually reached Teng Xingshan’s family. Teng’s parents had both died not long after their son had been executed. His brother figured that because their family was poor and ordinary they should not oppose the government. Not wanting to make trouble for himself, he decided not to mention the matter to anyone outside the family. In 2004, Teng Xingshan’s daughter Teng Yan had already grown up and worked as a migrant laborer for many years. After she learned the truth about what had happened, she and her younger brother Teng Hui, with help from a lawyer, filed a motion for appeal with the Hunan Provincial Procuratorate and Hunan High People’s Court. On October 25, 2005, the Hunan Higher People’s Court ordered a retrial in Teng Xingshan’s homicide trial and formally acquitted him of the charges. Teng Yan and Teng Hui received state and other compensations in the amount of 666,660 yuan (approximately US$85,000 at the time).

At the time, the National People’s Congress Legislative Affairs Commission was organizing experts and scholars to study ways of reforming the Criminal Procedure Law, and the death penalty review procedure was one of the areas that everyone was paying close attention to. There’s no question that the Teng Xingshan case played a role in pushing forward reform of the death penalty review system. The Supreme People’s Court decided from January 1, 2007, to take back the authority to review death sentences in all cases.

It’s now been 10 years since the reform of the death penalty review system. I was recently asked how I’d evaluate this reform. I said that it’s certainly been very positive, but I would have a hard time saying for sure. I believe that, since the power to review death sentences was returned to the Supreme People’s Court, the death penalty has definitely been applied with much greater strictness, in greater accordance with the rules, and in a more uniform manner. And the number of executions has certainly also decreased by a great deal. But because I don’t know the specific details, it’s impossible to comment in an objective and precise way.

In China, the number of executions seems to be treated as a kind of “state secret”. Those in the know remain tight-lipped on the subject, while those on the outside let their imaginations run wild. In my opinion, there’s no reason to treat the number of executions as a “state secret.” All death sentences in China are handed down and executed openly and in accordance with the law. It’s all perfectly open and aboveboard—executions are not carried out in secret or indiscriminately. Why does the government choose to be so secretive and why is it afraid of keeping the public informed? Disclosing the number of executions will not stain the reputation of the judicial organs or lead to social unrest. Tempered by their experience of numerous wars and disasters, Chinese people surely are psychologically resilient enough to face up to the number of executions!

On this point, policymakers ought to abandon their antiquated ideas of closed-door justice and embrace the modern judicial norms of transparency. Practical experience shows that openness is the best publicity and offers the best route to foster public trust. Publishing execution numbers also demonstrates judicial organs’ respect for citizens’ right to access information (zhiqingquan).

Actually, the Chinese judiciary has already made progress on this front, as court verdicts have begun to be published online! As a technical matter, when court verdicts are all online it won’t be that difficult to use “big data” technology to tally up the number of executions. Even if officials don’t make it public, the public can still find out. Therefore, I recommend that the Supreme People’s Court choose the right moment to begin publishing the number of executions. This can demonstrate the Chinese government’s resolve and sincerity in facing up to capital punishment and promoting civilized justice.

At the present time, there are more than 140 countries and regions in the world that have abolished the death penalty either by law or in practice. This shows that abolishing the death penalty is the general trend of human society because it is in line with the general spirit of humanitarianism and civilized justice. Furthermore, abolishing the death penalty is an effective way to prevent wrongful executions of innocent people. For judicial personnel, “no unjust treatment, no indulging wrongdoings” is but a beautiful tale/lore. Police, prosecutors and judges aren’t supernatural beings, and making the incorrect decisions when evidence is lacking is something that cannot be entirely avoided. Therefore, to prevent further miscarriages of justice in which innocent people are mistakenly put to death, we should seriously consider abolishing capital punishment.

I am deeply aware that China cannot abolish the death penalty at the current time, but we should have an earnest discussion about the issue and, through our efforts, make more of our fellow Chinese understand that the death penalty is not perfectly justified. Our government ought to make a solemn pledge to the world that China will make an effort to abolish the death penalty and that it will start by making the number of executions public so that the world can see the progress of China’s death penalty policies. After several years of continued hard work, China will go from “executing fewer” to “no executions” to full abolition of capital punishment, once again making China one of the most civilized, humane, and harmonious countries in the world!