Du Shaoping in court. Image Credit: Haibao News
As the world’s leading executioner, China’s death penalty law has long been scrutinized by scholars, policy makers, and human rights groups. The subject matter garners an outsized level of international attention when the cases involve foreigners. Robert Schellenberg’s case serves as a recent, highly visible example: Schellenberg is a Canadian sentenced to death for drug trafficking, and his case has seemingly been thrust into the tit-for-tat of international politics. Ironically, this increased attention comes amid a decades-long decline in the overall use of the death penalty in China.
It has been over a year since Schellenberg appealed his death sentence to the Liaoning High People’s Court in January 2019. The court appears to be delaying the judgment in order to seek leverage over the case of Meng Wanzhou. International politics are clearly at play in Schellenberg’s case, but it must be noted that delayed judgments are not uncommon in capital cases involving Chinese citizens. In some cases, defendants have waited as long as 600 days between first and second instance trials; in a rare case, 900 days elapsed before the final review by the Supreme People's Court (SPC).
The length of time between trials, SPC reviews, and execution varies case by case. It is also possible for the SPC to expeditiously approve death sentences within a month after the sentences were handed down at first-instance trials. The cases below display some disparities in this application:
- The Beijing High People’s Court upheld the death sentence of Sun Wenbin 29 days after the Beijing No.3 Intermediate People’s Court handed down the judgment on January 16, 2020. Sun was found guilty of intentional homicide for stabbing a doctor at a Beijing hospital in December 2019. The SPC approved the death sentence on March 17, 2020, slightly over a month after the appellate ruling was made. The period from Sun’s criminal detention to his execution on April 3, 2020 lasted 101 days.
- In another case, Du Shaoping was found guilty of intentional homicide and other crimes by a court in Huaihua, Hunan, sentenced to death, and executed in January 2020. The alleged crime of him killing and burying a teacher in a school yard, which took place in 2003, was said to be instigated by disputes over a schoolyard construction project. While 16 years passed between the crime and Du’s trial hearing on December 17, 2019, judicial proceedings were more expeditious. Du was executed on January 20, 2020, meaning that the period from his first trial to the SPC approval of his conviction and sentencing lasted 30 days. Four days elapsed between the SPC’s approval and his execution.
Understanding of how China applies the death penalty is largely lacking. To better understand these conflicting trends, Dui Hua has conducted an updated analysis of trends in the length of time between trial and execution in China’s death penalty cases. Longer times between sentence and execution could indicate a more deliberate judicial approach that allows for meaningful review of the evidence supporting a conviction and death sentence, and it also provides a window for intervention from higher courts and others to stop executions and correct wrongly decided cases.
This article examines possible trends in sentencing and execution in order to discern attitudes and practices towards the application of the death penalty. First, this article presents new statistical data on the length of time between sentence and execution using Dui Hua’s Death Penalty Log. It then provides a paired comparison of a very quick (less than 60 days) and a very deliberate (more than 2 years) death penalty appellate review, which can assist in developing an understanding of the factors that tend to be associated with a longer judicial deliberation between trial and execution.
A Look at the Numbers: Time from Trial to Final SPC Approval of Execution
In the United States, the term “death row” is part of the common lexicon, perhaps owing to the extended delay between the investigation, trial, appeal, and execution of condemned prisoners. By contrast, there has been little need for a term like “death row” in China because there has not historically been an extended period between trial and execution, and capital offenders are rarely sent to prison before execution. In China, capital offenders stay in detention centers after they are sentenced, or when appeals to a higher-level court or approvals from Supreme People’s Court are pending.
However, as the SPC has reclaimed its authority over the review and final approval of death sentences, times between trial and sentencing have begun to lengthen and vary. Although the complete abolition of the death penalty should be the ultimate goal from a human rights perspective, understanding how and why delays of execution occur is nonetheless an important element of understanding whether China engages in the deliberation necessary to limit injustice in death penalty cases.
Dui Hua has recently compiled the following information regarding the time between trial and execution in death penalty cases in China: from 2015 to 2019, Dui Hua recorded 1,247 first-instance trials involving the death penalty; of those, there were 460 known second instance trials, and 261 known SPC reviews of those trials. Table 1 below provides a summary of average lengths of time between adjudication and final SPC death penalty review.1
Table 1. Length of Time in Days Between Adjudication and Final SPC Judgment in Death Penalty Cases
|Image Credit: The Dui Hua Foundation|
Of the 261 SPC reviews, 239 death sentences were approved (91.6 percent), and 24 were not approved (9.2 percent). While these data provide a sense of the average delays between death penalty trial and execution, Figure 1 provides a more detailed understanding of how many cases involve significant appellate deliberation.
Figure 1. Number of Death Penalty Cases, Sorted by Days Between First Instance Trial to Final SPC Decision
Image Credit: The Dui Hua Foundation
In approximately half of the cases, the time between first instance death penalty trial and SPC review is between six months to a year. On the other hand, in more than half of cases, the period from trial to SPC review took longer than a year; of those, nearly 33 percent took longer than one and a half years. Interestingly, a very small number of cases landed on opposite ends of the spectrum – only three cases took less than 182 days to review, and only 10 took longer than 730 days.
To better understand what factors lead to longer time windows between trial and execution, the next part provides a more in depth look at two cases, one from each end of the spectrum. While these two cases are outliers – one was particularly quick while the other was noticeably drawn out – they provide insight into factors affecting the duration of judicial proceedings in death penalty cases.
Yang Zanyun and the “9-12” Attack
|A photograph of Yang Zanyun from a court proceeding related to his mass killing case. Image Credit: Hunan People's Court|
Yang was convicted of the crime of “endangering public safety using dangerous methods”; however, a more accurate contemporary translation of the crime would probably be “mass killing” or even terrorism (media articles branded the case the “9-12” attack). According to Xinhua, Yang drove a Land Rover into a crowd of people at Mijiang Square in Hunan before exiting his vehicle and attacking more people with a knife and a shovel. In addition to those killed, Yang also injured 43 others. Unsurprisingly, as one of the most heinous mass killings in China’s history, the case drew strong public response, with more than 300 people attending the proceedings held at the Hengyang Intermediate People’s Court in December 2018.
A little over one month later, the Hunan High People’s Court announced on its WeChat account that the Hengyang Intermediate People’s Court carried out Yang’s execution on January 29, 2019, in accordance with a final SPC death penalty order.
Another negative factor that likely contributed to Yang’s execution was his long criminal history. According to Reuters, Yang had previous convictions for “selling drugs, theft and attacking people, which caused him to harbor a desire for ‘revenge on society.’”
Ma Gongxian and the Land Dispute Homicide
By contrast, a recent homicide case has led to a much longer judicial review process. The defendant in this case, Ma Gongxian (马攻先), was convicted of intentional homicide for stabbing a family member to death as part of a dispute over land rights in Qingdao, Shandong province.
The case arose out of long simmering tensions between Ma Gongxian and his younger brother, Ma Huixian, with respect to a 16-mu (approximately two-and-a-half-acre) piece of real estate. In October 2015, tensions boiled over when Ma Gongxian confronted Ma Huixian regarding a building that Ma Huixian was constructing on the disputed land. While the exact details remain somewhat unclear, at some point Ma Gongxian wielded a large knife and stabbed and killed Zhao Jufang, Ma Huixian’s wife. Ma Gongxian was then attacked with rocks by others at the scene and taken to the hospital.
According to the report, Ma Gongxian was arrested in the hospital, and the Qingdao Procuratorate charged him with intentional homicide. The Qingdao Intermediate People’s Court sentenced him to death with immediate execution in October 2016, but despite the judgment calling for the immediate implementation of the death penalty verdict, Ma was allowed to appeal the sentence. The Shandong High Court heard the case on June 8, 2017, and Ma Gongxian presented a complex court defense in which he admitted to killing the victim but claimed that his actions amounted to negligent, rather than intentional, homicide. The defendant was 69 years old at the time of the crime. As of November 2019, the Shandong High Court reportedly upheld the judgement, and the SPC approved the death sentence, meaning that the execution likely took place soon after the final SPC approval.
In the small village in Shandong where the crime took place, however, the execution sentence was met with opposition. During Ma Gongxian’s appellate hearing, nearly a hundred villagers from Ma Gongxian’s village went to the Shandong High Court, expressing opposition to Ma Gongxian’s death sentence and saying that “the crime should not lead to death” (罪不致死, zui bu zhi si). The defense also noted that Ma did not have a history of committing crimes, a point that seems to have been accepted by the criminal judicial officials.
Assuming that Ma’s death sentence was carried out in November 2019, the execution would have taken place approximately three years after the start of the first-instance trial in October 2016, making this case much longer than the average time from trial to SPC death penalty approval.
Toward a List of Factors that Impact Length of SPC Review
Although no conclusions can be definitively made from only two cases, the major differences between the two cases might illuminate some of the factors upon which to assess Chinese judicial review of death penalty cases and, in a broader sense, human rights in China. The differences in the Yang Zanyun and Ma Gongxian cases include the following elements:
- number of deaths (overall severity of the crime)
- public versus private dispute
- social pressure
- complicated criminal defenses
- previous criminal history
Clearly, Yang’s crimes were particularly heinous and attracted international media attention. His crimes resulted in a substantial threat to social stability, which might have pressured higher courts and the SPC to approve the death penalty quickly. These factors are absent in the Ma Gongxian case that involved the murder of a single individual amidst a family dispute that was not a threat to spill into other corners of society. These factors can be considered in addition to other governmental or political factors involving ongoing counter-terrorist policies and or other campaigns noted previously by Dui Hua.
It is also interesting to note that Ma Gongxian’s case led to substantial delays perhaps in part because he was able to present a complex criminal defense. Although it might be a positive sign that Ma’s defense strategy was able to produce a more deliberate judicial response, it also might call into question whether criminal defendants with financial means to pay defense lawyers might be able to more successfully challenge their sentences, with poorer defendants more likely to face unjust execution.
While these factors are by no means an exhaustive or definitive list of factors influencing appellate review in these two cases, they offer a perspective into a legal system that is notorious for its low acquittal rate and lack of transparency. The insights gleaned from these cases and available statistics can help inform the ongoing conversation about how judicial review occurs and how human rights might be protected in China.
As the coronavirus pandemic upends proceedings, China has vowed not to delay justice in the midst of the outbreak. Such promises have raised concerns that procedural justice may suffer as a result, especially in capital cases, where the review process already faces transparency issues.