Curious Timing: Disapprovals & Presence of Counsel in SPC Death Penalty Reviews (Part II)

This Human Rights Journal entry is the second in a two-part series that explores the Supreme People’s Court’s recent disclosures of death penalty decisions, which were made following China's human rights review in Geneva in January 2024. Part I explored the demographics of those sentenced to death as well as trends in types of crime and decision review times. This entry, Part II, looks at why some decisions were disapproved, the presence of counsel during rulings, and inconsistencies in the information provided by the disclosures.  

The Sichuan High People’s Court upheld the judgments for a case of organized crime group and drug trafficking with 12 defendants in June 2022. Three principal defendants were sentenced to death. Image credit: Sichuan High People’s Court, CCTV13

Disapprovals & Reasons for

This batch of death penalty reviews included 16 disapprovals (individuals). Prior to this, Dui Hua had only learned of four disapprovals from 2018 to 2021 from CJO. Few disapprovals were recorded when the judgment website was still posting review decisions.  

In this batch, the SPC disapproved the death sentences for seven individuals convicted of murder and for nine people convicted of drug crimes. The SPC only issued four revised sentences along with the disapproval decisions in the new batch. The rest were sent back to provincial high courts to be retried. Of the SPC-revised sentences, three were resentenced to death with two-year reprieve and one was given a life sentence. 

In the reviews for the seven murder cases, one recurring reason for disapproval was that the defendant made amends to the victims’ families and/or received forgiveness by the families. “Receiving forgiveness” typically means that the defendant made monetary compensation to the victim’s family. Of the seven cases, five defendants made compensation and/or received forgiveness, but the exact amounts were not disclosed. 

There were two other disapproval reviews. One was the aforementioned case in which the SPC acknowledged as mitigating factors: the murder occurred during a civil dispute and the defendant had voluntarily surrendered. The other case involved two defendants, during which the SPC considered the younger male defendant to be an accessory offender to the female defendant in the killing. The SPC approved the execution of the female defendant and decided that the male defendant should not be executed immediately. Both of their death sentences were disapproved and sent back to the high court for retrial. 

For the nine drug crime convictions, the common reason for disapproval was that the SPC determined that the defendants were accessories to the crime. This was cited as one of the main reasons for disapproval in the reviews of seven defendants.  

A court room in Jiangsu Province. Image credit: Wikimedia Commons 

In reviews for the other two defendants of drug cases, the SPC agreed with the lower courts that the defendants were the main offenders and had committed serious crimes (involving large quantities of drugs). However, the SPC still considered the defendants’ voluntary surrender and expressions of remorse as mitigating factors. Both cases were sent back to the Guangdong High Court for retrial.  

The SPC doesn’t seem to factor in the defendant’s age when considering whether or not to approve the death sentence. This batch of reviews suggests that the SPC has a higher threshold for accepting voluntary surrender as a reason for leniency. In reviewing the death penalty, the SPC often disputed whether the surrender itself was truly voluntary or if it occurred too long after the crime. 

Presence of Defense Counsel During Review 

China passed the Legal Aid Law in August 2021, which expanded the scope for providing legal aid during the death penalty review process. The law went into effect on January 1, 2022. Prior to this, the convicted had to retain their own counsel during the final review.

Although the sample size is small, Dui Hua sees the impact of the new law reflected in the decisions. For the 93 convicted, 54 individuals had legal counsel during the review process while 39 did not.  

Of those with legal counsel, the decisions revealed that 40 individuals had requested legal aid and that they received counsel in accordance with the law. Twelve individuals or their families retained their own counsel. Legal counsel was present at two reviews, but the decisions did not disclose details. This can be seen as a positive development insofar as the defendant’s due process rights are concerned. The possibility of having legal counsel present during the review process was made known to those under review and many accepted legal assistance.  

The documents do not disclose the reasons why individuals did not have legal representation during the review. This omission raises questions as to whether the individuals were aware of the opportunity or if they refused legal assistance.  

Table 6. Presence of counsel & review time 

If there was an impact on review time due to the presence of counsel, the result is not obvious. Their presence did not seem to significantly prolong the review process when compared to cases without counsel.

Table 7. Presence of counsel & outcome 

The presence (or absence) of a counsel did not appear to have an impact on the outcome of the SPC review. The SPC seems to have based its decisions on evidence (findings presented by the procuratorate and the lower courts), the seriousness of the crime, its social impact, and the role played by the offenders. Also taken into account are the mitigating factors discussed above, mainly expressions of remorse and obtaining forgiveness from the victim’s family.

Inconsistencies & Omissions

Considering the importance of a review decision on the application of the death penalty by China’s highest court, there are important omissions in several documents.

• The details of legal counsel were not disclosed in the decisions. 
• The ethnicity of 25 individuals, more than a quarter of the batch, were also omitted in the decisions.

The new batch of documents also seems to break with past releases. Only one decision included the full name of the convicted, Lao Rongzhi (劳荣枝). Lao was accused of having been involved in several kidnappings and murders from 1997 to 1999 and had been on the run for 20 years before she was apprehended in November 2019 in Xiamen, Fujian. Her case was sensationalized on social media. The SPC took slightly more than a year to complete the review. She was executed on December 18, 2023, in Nanchang, eight days after the SPC's approval.

Lao Rongzhi, at the Zhejiang High People’s Court for the appeal trial. The judgment was upheld by the court in November 2022. Image credit: Supreme People’s Procuratorate 

All other documents did not disclose the full names of the convicted. A possible reason for obscuring the names might be to protect the victims’ privacy, especially in cases where the victims were underage. However, even the SPC itself does not always follow this reasoning. In May 2023, to highlight the country’s determination to protect the rights of juveniles, the SPC announced in a new release that it had approved the executions of three individuals accused of serious assaults against underage girls. The SPC’s news release disclosed the full names and some details of the crimes. And even though the three cases were categorized as case study examples for crimes against juveniles, the full review decisions for the approvals were not released.

In 2021, the SPC established the Office of Juvenile Trial Work with the purpose of protecting the rights of the child, such as by implementing trial procedures for juvenile defendants and strengthening punishments for crimes against juveniles. Image credit: chinacourt.org  

Curious Timing

The timing of the release of this new batch of decisions is interesting. The first post date was almost immediately after the submission of China’s UPR in January 2024. Dui Hua, in its submission as an NGO with special consultative status, highlighted issues such as judicial transparency in death penalty review decisions. Other states parties and NGOs also highlighted the death penalty in China. In its response to UPR recommendations, China rejected 17 recommendations from other countries concerning its use of the death penalty. Of these, 14 recommendations – almost all of them from European nations – called on China to enact a moratorium on the use of the death penalty or abolish it outright. Three recommendations urged China to restrict the number of crimes punishable by death and to stop applying it to non-violent crimes.

 

Chen Xu (front, center), permanent representative of China to the UN office at Geneva, attends China's UPR on January 26, 2024. Image credit: UNWebTVUNWebTV 

Issues surrounding the death penalty in China have long been a focus of UPRs. China is believed to be the world’s leading executioner, and the opacity with which it conducts executions was a recurring issue in the most recent review. The UN High Commissioner for Human Rights has repeatedly called for a moratorium on the executions, particularly executions in non-violent drug cases. The brief resumption of posting death penalty review decisions might be a reaction to these criticisms. The selected reviews give the impression that China's judicial system is more deliberative and judicious, not simply a rubber stamp for decisions reached by lower courts as is often assumed. If these disclosures were an attempt to anticipate and mitigate such concerns, the omission of decisions on Uyghurs and Tibetans undermines confidence in the disclosures.

A possible reason for the timing of the release is to showcase review time lengths and the Court’s efforts to arrive at fair, cautious decisions. These features refute criticisms that the SPC, and China’s justice system in general, simply validate rulings in cases that have already been decided. Additionally, even though the presence of legal counsel seemingly does not influence review times or outcomes, the provision of legal counsel during the review can nonetheless be seen as an indication that “due process” is respected throughout China’s judicial system.

The launch of CJO in 2013 raised hopes about judicial transparency and legal reform in China. In its submission to China’s 2018 UPR, Dui Hua applauded this step and other measures that strengthened judicial transparency. Conversely, Dui Hua’s 2024 UPR submission detailed how the steady retreat from transparency has undermined the achievements that so many practitioners had applauded a decade ago.

In the spirit of promoting judicial transparency, the Chinese government should be encouraged to continue releasing judgments, even for sensitive cases that can draw criticism and controversy, including cases involving the death penalty. A court’s willingness to explain itself can also build trust in a legal system that still remains partially in the shadows.

Read Part I

Curious Timing: SPC Death Penalty Reviews Posted after Universal Periodic Review (Part I)

This Human Rights Journal entry is the first in a two-part series that explores the Supreme People’s Court’s recent disclosures of death penalty decisions made shortly after its human rights review in Geneva in January 2024. This post, Part I, looks at the demographics of those sentenced to death as well as trends in types of crime and decision review times. Part II explores reasons for disapprovals, the presence of counsel, and inconsistencies in the disclosures.  

The Sichuan High People’s Court upheld the judgments for a case of organized crime group and drug trafficking with 12 defendants in June 2022. Three principal defendants were sentenced to death. Image credit: Sichuan High People’s Court, CCTV13

Three years after a large number of judgments and judicial decisions involving the use of the death penalty were removed from China Judgements Online (CJO) in 2021, the Supreme People’s Court (SPC) added a new batch of death penalty review decisions in February 2024. The posting of these death penalty reviews occurred one month after China’s human rights record was reviewed by the United Nations Human Rights Council’s Universal Periodic Review (UPR) in January 2024.  

CJO & Review Decisions

The posting of judgments and judicial decisions on CJO began in 2013. The effort to boost transparency was applauded by legal scholars and professionals inside and outside of the country. CJO judgments and decisions were not confined to ordinary civil and criminal cases, but also cases considered to be sensitive. Hundreds of endangering state security (ESS) cases and thousands of cult-related cases were made available on CJO.  

Significant media attention from Western countries and NGOs like Dui Hua may have contributed to the Chinese government’s decision to purge documents related to ESS and cult cases in July 2021. Around the same time, CJO also removed SPC review decisions on the application of the death penalty. 

Death penalty review decisions re-surfaced on CJO in 2022. In July 2022, Dui Hua found that decisions taken offline a year ago had been reuploaded to CJO. However, CJO did not post new information until the submission of China’s report at the country’s fourth UPR in January 2024. The new information came from a batch of 86 newly uploaded review decisions issued from 2022 to 2023 concerning 93 individuals. Dui Hua also found that decisions originally posted in July 2022 had been reposted, with CJO showing December 1, 2022 as the new posting date. 

At the time of publication, CJO has not published any new death penalty reviews after March 2024. Also noteworthy is that seven months into 2024 no review decisions issued within the year 2024 have been published. This article reviews the batch of death penalty documents posted in February 2024. While the documents present some insights into an increasingly opaque system, there are omissions and inconsistencies that raise questions about the timing of the documents’ release.  

Source: CJO

China's trial system follows a two-hearing system in the trial process. The SPC’s decisions on the first- and second-hearing cases are final and must be enforced once promulgated. Cases that may result in a death penalty are first tried by an intermediate people’s court, and appellate trials are conducted by the relevant high people’s court. If the sentence is upheld, the judgment is submitted to the SPC for review. In death penalty cases, appeal is not an automatic process. In the batch of judgments examined in this post, all but one of the 93 convicted filed for appeal. All appeals were rejected by the high courts before they were submitted to the SPC for final review. 

Demographics of Those Sentenced to Death 

Individuals in death penalty cases are mostly male and of Han ethnicity (see below). Notably absent from the newly posted death penalty reviews are cases involving Uyghurs, who are often accused of terrorism and ESS crimes, both of which carry the maximum penalty of death.  

Another group for whom no information was given is foreign nationals, despite such executions being reported during the period. For example, in 2023, the Chinese government executed a South Korean citizen who was convicted of drug trafficking.

Table 1. Sex of those sentenced

Table 2. Ethnicity of those sentenced

The majority of individuals sentenced to death are aged between 30 to 59.

Table 3. Age of those sentenced

While the Criminal Law stipulates lighter punishments for elderly offenders, two individuals over 70 years old were given death sentences. The SPC approved the sentence for a man from Changchun who committed robbery. That man was 69 years old at the time of the crime, and the SPC took 268 days to complete the review.

The SPC disapproved the death sentence for another man who murdered his neighbor on the grounds that the crime started as a civil dispute between two neighbors. Additionally, the offender surrendered to police. The case was sent back for retrial at the Jilin High People’s Court. The offender, an ethnic Mongolian, was 68 years old at the time of the crime. The SPC took 798 days to complete the review.

In all, the SPC approved 77 death sentences and disapproved 16 of them.  

Crime

The death penalty in China is typically invoked when the offender commits a violent crime resulting in the death of the victim. In the new batch of decisions, murder accounted for more than half of those sentenced while robbery made up a fifth of the documents. Drug-related crimes—trafficking, selling, transporting, and manufacturing—accounted for another fifth of those sentenced.  

When an individual was convicted of multiple crimes, the court typically applied the sentence of death to the crime considered to be the most severe. Life or fixed-term sentences were applied to the other crimes. 

Table 4. Crime type

Dui Hua keeps track of the number of executions in China. The crimes committed in death penalty cases are similar to what we see in CJO. Of the 153 executions recorded by Dui Hua in 2023, 94 were of individuals convicted of murder, 13 of robbery, and 29 of drug crimes. In 2022, Dui Hua recorded 120 executions: 61 for murder, 11 for robbery, and 42 for drug crimes.

 

Review Time 

Review time refers to the number of days between the final high court trial and the SPC review decision. In instances where no appeal is filed, the first-instance trial is considered the final trial. 

In May 2020, Dui Hua examined a sample of 261 review decisions issued between 2015 and 2019 and made observations on the length of time between trial and the review decision. The SPC took an average of 190 days to issue a decision after the final trial by the court of second instance, with a median of 169 days. The longest review time was 573 days while the shortest was 20 days. 

In the newly published death penalty reviews, the SPC took an average of 461 days to issue the decisions, with a median of 390 days. The lengthiest review concerns a drug manufacturing case with five offenders. All of them were first-time offenders who manufactured hundreds of kilos of methamphetamine. The first-instance trial was concluded in Changde, Hunan, on January 25, 2019. The high court upheld the sentences on December 27, 2019. All five had been convicted of manufacturing drugs and had been sentenced to death by the lower courts. The SPC completed its review 1,079 days (almost three years) on November 28, 2022. In its decision, the SPC approved the death sentences for three of them and disapproved the sentences for two. One of the disapproved sentences was revised to death with two-year reprieve and the other was revised to a life sentence. 

The shortest SPC review took 93 days. The case involved drug trafficking, in which the convict was a recidivist who has been sentenced twice to short prison sentences for selling drugs. In his latest trial, Mr. Xiao was convicted of organizing and funding the trafficking of a large quantity of drugs obtained in Yunnan. He was sentenced to death by an intermediate court at the first-instance trial on February 15, 2022. The sentence was upheld by the high court on July 28, 2022. On October 29 of the same year, the SPC completed the review and approved the death sentence. 

Table 5. Review time

Given the small (and selective) sample size, it is difficult to conclude with certainty that longer review times would necessarily result in disapproval. That said, the probability of disapproval rises when the Court takes longer to review. On the surface, the SPC appears to be more judicious. More reviews took a year or longer to complete compared to those completed within nine months.  

Read Part II

Subversion in Xi’an: The Trials of Guo Ran & Kou Ji

The Xi’an Intermediate People’s Court building. Image credit: Xi’an court website 

Dui Hua’s research into Chinese government sources uncovered new information concerning Guo Ran (果然) and Kou Ji (寇稽). The two men received lengthy prison sentences in a closed-door trial for subversion held in Xi’an in 2013. Subversion is a crime of endangering state security and carries a maximum sentence of life imprisonment. 

Dui Hua first discovered their names in an annual work report an annual work report released by the Xi’an Intermediate People’s Court in June 2013. The report stated that Guo and Kou were tried for subversion, but the trial outcome was not disclosed. Their fate was only subsequently revealed by sentence reduction decisions posted on China Judgements Online around 2016.  

The first reduction decision Dui Hua found stated that Kou, born in 1969, was serving his 10-year prison sentence in Shaanxi’s Weinan Prison. Because of good behavior and meritorious service, Kou received his first sentence reduction of nine months in February 2016, about four years into his sentence. Two years later, in May 2018, Kou received his second sentence reduction of seven months.  

That same year, Guo, born in 1981, received his first sentence reduction of five months in September. The sentence reduction decision stated that Guo was serving his 14-year prison sentence for subversion in the same prison as Kou. The clemency he received took place seven years into his prison sentence. Kou completed his prison sentence on July 13, 2020, and his three-year supplemental sentence of deprivation of political rights (DPR) is thought to have expired on July 12, 2023. Guo’s sentence is expected to end on July 1, 2025, after which he will begin his five years of DPR. All three sentence reduction decisions have since been removed from China Judgements Online. 

A search for "inciting subversion of state power" that yielded no results in July 2021. Dui Hua conducted another search in May 2024. As in 2021, the search yielded no results. Image credit: China Judgements Online

The court documents did not provide other case specifics beyond their background, crime, sentences, sentence reductions, and new release dates. The acts leading to their imprisonment were unknown. Around 2019, information from unofficial news sources concerning this subversion case began to surface. However, it was only briefly reported that Guo frequently held gatherings on his own business premises to discuss pathways to achieve freedom and democracy. The duo was reportedly detained in 2012 and formally arrested on February 20, 2013. 

A Chinese government publication Dui Hua uncovered in 2022 sheds light on this mysterious case of subversion. Guo operated a private gallery, and Kuo was an architect. The two were accused of establishing a political group known as the “Xingya Party” (兴亚党, lit “Thriving Asia Party”). Guo published posts online and recruited people online to join the group. Members were to become citizens of the “Chinese Federal Republic” (中华联邦共和国). Guo allegedly called on online recruits to carry out violent activities.  

As part of their operation, which they named “Dawn of Liberty,” Kou was allegedly tasked with collecting intelligence about troop deployment and military facilities on Chongming Island, China’s third largest island located on the estuary of Yangtze River in Shanghai. Guo intended to launch a military occupation there and create the “Chinese Federal Republic,” according to the official narrative. Kuo was also accused of scheming and drafting the “state creed.” Guo was arrested for subversion, and Kuo was initially arrested for kidnapping.

Military patrol on Chongming Island. Image credit: Sohu 

While this account is likely the only official source which provides information about the acts of Guo and Kou, Dui Hua is unable to assess how truthful the description of criminal activities is. Assuming this account is accurate, Guo and Kou are not the first people to have been sentenced to lengthy terms for subversion for founding opposition parties and advocating for a violent overthrow of the Chinese government.  

According to Records of People’s Courts Historical Judicial Statistics: 1949-2016, Chinese courts accepted 162 subversion cases involving 347 individuals in the 18-year period from 1998 to 2016. Many of these subversion cases are by nature sensitive, and information pertaining to these cases is far from transparent. 

Among the earliest cases of subversion involved leaders of the so-called “Southwest Yangtze Column of the Chinese Anti-Corruption Army” (中国人民农工反腐败大军西南长江纵队) in Chongqing. Established by farmers in 1998, the group called itself a democratic alternative to the Chinese Communist Party (CCP). It opposed excessive agricultural taxes and distributed fliers calling for the rehabilitation of June Fourth prisoners on the tenth anniversary of the 1989 pro-democracy movement. Sentenced to 12 years’ imprisonment for subversion in the early 2000s, Song Bukun (宋步坤) is believed to be the last member of the group to be released from prison in September 2013. Dui Hua received two responses from inquiries dating back to 2008 in which government sources said Song received an 11-month sentence reduction in February 2009. 

In March 2006, dissident writer Ren Ziyuan (任自元) was sentenced to 10 years in prison for subversion because he established the “Mainland Democracy Frontline” to promote the right to end tyranny by violent means. He reportedly published anti-government views on the Internet, including a tract entitled "The Road to Democracy" and other essays. Some human rights organizations claim that some of his essays asserted citizens’ rights to violently overthrow tyranny. Ren was released from Shandong No.1 Prison on May 9, 2015, without receiving a single sentence reduction. 

Dui Hua uncovered details of another political party that was accused of “violent intent” in 2019. The “People’s Party,” later renamed the “New Era Communist Party of China,” was founded by Dong Zhanyi (董占义). The group aimed to fight corruption and recruit aggrieved workers and petitioners to overthrow the CCP. Dong and another founding member Chen Guohua (陈国华) established a corporate entity called Tongkang to operate a supermarket project. The plan, according to official documents, was to use the supermarket project to employ online recruits and raise money to fund their political activities, including assassination plots and procuring weapons. Dong was convicted of subversion and fraud and was sentenced to life in 2011 by a Beijing intermediate court. The sentence later was commuted to a fixed 19 years' imprisonment in 2015. Chen was convicted of subversion and sentenced to 14 years. Other key party members were also given long sentences. 

Xu Zhiyong (left) and Ding Jiaxi. Image credit: VOA 

Subversion is not exclusively used to criminalize leaders of opposition parties nor is it confined to suppressing calls for the violent overthrow of the Chinese government. As recently as April 2023, prominent rights activist and legal scholar Xu Zhiyong (许志永) and rights lawyer Ding Jiaxi (丁家喜) were both convicted of subversion. Unlike Guo and Kou's case, Xu and Ding did not establish a dissident party. They are advocates of non-violent resistance and the responsible use of civil and social rights. In late 2019, they organized an informal gathering with around 20 activists and lawyers in Xiamen to discuss current political affairs and activism. Xu and Ding were sentenced to 14 and 12 years in prison, respectively, and their appeals were rejected in November 2023. Despite their rejection of violence, Xu and Ding's sentences are among the harshest for a subversion conviction, exceeding in length even cases where the accused allegedly called for the use of force. 

The fates of Kuo and Guo may no longer be shrouded in secrecy, but the acts leading to their imprisonment were revealed only a decade after they were incarcerated. Such gaps in disclosure further concerns that vague laws with ambiguous wording and low levels of legal transparency are eroding confidence in China's judicial system.  

Gray Matters: China’s Aging Prisoners

Men play chess inside the “elderly” prisoner cell block of Henan No. 3 Prison. Image credit: Pan Xiaoling / Southern Weekly

Decades of falling birth rates and rising life expectancy have made China one of the fastest aging countries. In 2023, its population aged 60 and above reached 297 million, or 21.1 percent of the population. While the aging population puts pressure on the already strained pension system and economic growth, elderly prisoners represent another pressing issue that requires more attention.  

Unlike juvenile justice, there is a dearth of information about elderly prisoners. They don’t seem to be an area of concern prevalent or pervasive enough to warrant careful consideration. Even the Ministry of Justice acknowledged the lack of relevant statistical data and academic research, and that judicial organs and law enforcement have yet to develop sensitivity with regard to the conviction, sentencing, rehabilitation, and management of elderly offenders. 

A Rising Estimate 

The World Prison Brief indicated that that there were 1.69 million prisoners in China in 2017, the latest year for which statistics are available. According to Chinese sources, the number increased to two million in 2022 although it has not been officially verified. While publicly available sources have not disaggregated the prison population by age, a 2021 article by the China Prison Association estimated that elderly prisoners accounted for about 5.2 percent of the prison population, and of them 65 percent were male and 35 percent were female. If we extrapolate the estimate from the prison population, an estimated 88,000-104,000 elderly people are in jail today. 

Chinese legal experts generally agree that the number of elderly prisoners has been surging. First, a substantial portion have aged naturally after serving long prison sentences. Following the 2011 eighth amendment to the Criminal Law, more people who were already serving lengthy terms have had to spend more time in jail. The amendment also increased the mandatory minimum time served for life sentences before their sentences can be commuted to fixed terms. In 2015, China introduced the sentence of life without the possibility of parole for people convicted of corruption and bribery. 

Elderly crime has also soared over the years. Statistics provided by the Supreme People Court indicated that the number of defendants aged 60 or above increased fourfold from 5,759 in 1998 to 23,817 in 2016 (See Table 1). However, not all of those tried and convicted ended up in jail. The 2011 Criminal Law amendment allows courts to grant offenders aged 75 or older lighter punishments, such as suspended sentences, because they are seen to pose a smaller risk to society. 

Table 1. Elderly Defendants from 1998-2016

Source: Dui Hua, Records of People’s Courts Historical Judicial Statistics: 1949-2016 

Types of Elderly Crime 

In 2012, China Court Website published its findings on this under-researched topic and summarized the types of elderly crime: 

1. Most crimes were committed solitarily and could be classified into two distinct categories:  
• (i) crimes reflecting lower-level needs for survival or safety;  
• (ii) crimes committed for obtaining economic benefits, venting negative emotions, or satisfying physiological needs; 
2. The crimes of bribery, abetting, deception, and harboring tended to be perpetrated by elderly people with good education, social status, and work experience attained from their careers; 
3. Violent crimes such as homicide, aggravated assault, and robbery were rare. Perpetrators typically had poor education and targeted vulnerable groups such as women and children as victims; 
4. Elderly males committed crimes such as molestation, rape, fraud, theft and harboring while women tended to commit crimes of disrupting social order; 
5. An increasing number of elderly people were involved in Article 300 “organizing/using a cult to undermine implementation of the law.” 

Although the 2012 article did not provide relevant figures, Dui Hua’s research into court statistics released by the Supreme People’s Court showed a clear upward trend in “cult,” or unorthodox religion, cases involving elderly prisoners from 1998-2016. In 2016, the last year for which statistics are available, 523 defendants aged 60 or above were tried for Article 300, or 2.2 percent of all elderly defendants. In 1998, when Article 300 was in force for the first year, only three elderly people were tried. The number rose to 103 in 2003 when the crackdown on Falun Gong was in full swing.  

Table 2. Elderly Defendants Tried for Article 300, 1998-2016

Source: Dui Hua, Records of People’s Courts Historical Judicial Statistics: 1949-2016 

Endangering State Security 

Elderly offenders are not prominently represented in cases of endangering state security (ESS), China’s most serious political crimes. Statistics released by the Supreme People’s Court indicated that only 63 defendants aged over 60 or above were tried for ESS from 1998-2016. No elderly people were tried in ESS cases in 2013, 2014, and 2016. 

Table 3. Elderly defendants in ESS cases, 1998-2016 

Source: Dui Hua, Records of People’s Courts Historical Judicial Statistics: 1949-2016 

Dui Hua previously reported the case of Chen Zhaolu (陈兆祿), one of the China’s oldest ESS prisoners. Born on December 9, 1917, in Guangzhou, Chen became a Hong Kong resident in 1968 when he started working for Xinhua News Agency – then China’s de facto consulate in Hong Kong. Eighteen years after his retirement, on November 25, 2003, Chen was detained in Guangzhou on suspicion of espionage. On January 19, 2004, the Guangzhou Intermediate People’s Court sentenced Chen to 13 years’ imprisonment. At age 86, he was incarcerated in the elderly prisoner cell block of Guangzhou Prison, Guangdong’s “model prison.” Chen was given a nine-month sentence reduction in 2006 and a 16-month sentence reduction in 2008. He was granted medical parole for a period of three years on September 2, 2009. His sentence expired in October 2014. 

More recently, US citizen and Hong Kong resident Leung Shing-wan (梁成运, aka John Leung) was convicted of espionage and sentenced to life imprisonment in 2023 in Suzhou at the age of 78. Such heavy terms are rare for elderly offenders and for foreign nationals in China. Leung was the chairman of the Association for the Promotion of the Peaceful Reunification of China in Texas. The association is believed to be connected to the Chinese Communist Party’s United Front Work Department tasked with promoting Beijing’s claim over Taiwan. His case was showcased on the 10th National Security Education Day on April 15, 2024. 

The Intermediate People's Court of Suzhou, Jiangsu. (Inset) Leung Shing-wan, who was 78 years old when the court convicted him. Image credit: Cantonese Group Cartography / Radio Free Asia

Leniency & Clemency 

While individuals aged 60 or above are generally considered elderly, leniency is now granted at a higher age threshold. The Public Security Administration Punishments Law grants public security the discretion to not impose administrative detention on elderly people over 70 years old, even in cases of serious violations of public security management.  

Additionally, the Criminal Law stipulates lighter punishments for individuals over age 75. Following the 2011 amendment, they cannot be subjected to the death penalty unless the offender has committed an act of particular cruelty. As an indication of the impact this has had, the number of Chinese capital cases involving people over 70 is fewer than 10 cases per year in the early 2010s, compared to the estimated 4,000 people executed in China in 2011. 

The amendment also expanded the scope of leniency by encouraging the use of lighter punishment and suspended sentences to those who commit an intentional crime at the age of 75 or greater. Some critics have similarly argued that this age is too high to have any real impact. 

Provincial authorities have also taken it upon themselves to expound on how elderly offenders are treated with more leniency. In 2014, the Sichuan High People’s Court issued a guiding opinion on the sentencing of elderly prisoners. Offenders of intentional crimes aged 65-74 can have their sentences mitigated by 30 percent. The mitigation length increases to 40 percent for those aged 75 or above. Elderly offenders who commit crimes of negligence can also have their penalty mitigated by 50 percent. The extent of leniency is also determined by the motive, time, method, severity of the crime, truthfulness of their confessions, and willingness to repent. 

In 1991, businessman John Kamm, now executive director of Dui Hua, visited a prison in Guangdong Province. He went to the prison to ask about two members of the Shouters, an “unorthodox religious group.” Upon arrival, Kamm was told that both men had been granted medical parole shortly before he arrived at the prison. The warden claimed that the prison authorities had the discretion to grant medical parole to prisoners over the age of 70. Dui Hua was unable to verify this claim.  

In January 2011, provincial authorities in Anhui grant parole or sentence reductions to 151 elderly or disabled prisoners. Image credit: Legal Daily 

Since Xi Jinping became President in 2012, he has issued two special pardons benefitting specific groups of elderly prisoners (Xi was the first leader to use his power to grant special pardons since Mao Zedong. No special pardons were issued between 1975 and 2015).  

1. Of the 31,527 people pardoned in 2015, fifty were veterans of the War of Resistance Against Japan (World War II) and the War of Liberation (the Chinese Civil War), 1,428 were veterans of foreign wars who were not convicted of serious crimes, and 122 were over 75 years old “with serious physical difficulties” and “unable to take care of themselves.”  
2. In 2019, Xi announced the second special pardon to mark the 70th founding anniversary of the People’s Republic of China. This resulted in 15,858 people receiving clemency. It remains to be seen whether Xi will announce a third pardon in 2025 to celebrate the 80th anniversary of the end of World War II. 

Besides the special pardons, releases of elderly prisoners have been rare. An exception was in 2009, when Chinese news media reported that approximately 2,000 elderly, sick, and disabled prisoners were given parole or allowed to temporarily serve sentences outside prison in part to alleviate prison overcrowding. At the time, 5,000 elderly, sick, and disabled prisoners were reportedly held in Sichuan prisons. Another mass release, albeit on a lesser scale, took place in Ningxia also in 2009. Nearly 100 elderly prisoners were granted parole. This clemency took place following a study which revealed that 117 or almost half of the elderly, sick, and handicapped prisoners in Yingchuan Prison and Ningxia Women’s Prison had not received any clemency from 2007-2009. 

On December 15, 2008, a 54-year-old female prisoner returns home after receiving parole and being released from Chengdu Women’s Prison. Her sentence was set to expire in March 2010. Image credit: Sina News 

In carceral facilities, restraint devices are prohibited on elderly prisoners under normal circumstances. Alongside the weak, ill, and handicapped, elderly prisoners are also exempt from prison labor. While Chinese government sources confirmed that around 10 percent of the prison population in 1990 were exempt from physical labor, recent figures have not been made publicly available. Instead, elderly prisoners are assessed by their willingness to express remorse and their performance in education rehabilitation.  

Health Issues 

Prisons are designed to prevent criminals from escaping, not to cater to the elderly. They often have poor lighting, steep stairs, and dim corridors unsuited for elderly prisoners. While these prisoners are typically held in special prison wards along with the ill, weak, and disabled, high bunk beds and pit-style urinals are commonplace and can be physically challenging for elderly prisoners.  

An article published in an academic journal in 2021 examined the health problems of elderly prisoners. The author cited a survey conducted in an elderly ward in Hebei. Of them, over half suffered from cardiovascular diseases, followed by 7.3 percent from tuberculosis, 6.7 percent from diabetes, 2.8 percent from hepatitis, 2.3 percent from asthma, and 2.2 percent from spondylitis. Citing research published in 2018, the study revealed that 57 percent of the elderly in an unnamed Shanghai prison were on daily or regular medication. 

The cost of incarcerating elderly prisoners has surged because of their medical needs. Hospitalization expenses for elderly prisoners in an unnamed prison in a western province rose 77 percent in three years to 15,900 yuan in 2016. Hospitalization alone exceeded 76 percent of the budget allocated for medical care. In a women’s prison also in the western province, the government’s financial allocation for inmates’ medical costs in 2015 could only meet one-sixth of its actual medical expenses. In most provinces, actual medical expenses for inmates similarly exceeded the standard financial allocation by more than 50 percent. Elderly prisoners are said to be the leading cause of the surge in medical costs, according to the author. 

Discriminatory Treatment 

Many elderly political prisoners are known to be ailing, but they have been denied sufficient care in prison. Prominent journalist Gao Yu (高瑜) began serving her five-year prison sentence for illegally trafficking in state secrets for a foreign entity at age 71. The crime stemmed from her leaking “Document No.9,” an internal notice by the Chinese government warning members against promoting “universal values” such as human rights. While incarcerated, she suffered from chronic heart pain, high blood pressure, a form of inner ear disorder called Ménière’s disease, and an undiagnosed chronic skin allergy. She was denied medications she took when living at home and access to specialists to assess and treat her. Gao had to wait two full years before she was admitted to a Beijing hospital to receive treatment. 

 

Journalist Gao Yu in the Beijing's Anzhen Hospital after her garden and office were demolished, April 5, 2016. Image credit: Su Yutong / Radio Free Asia

Despite their failing health, clemency is not guaranteed for prisoners convicted of politically motivated crimes. Wang Bingzhang (王炳章), born in 1947, continues to serve his life sentence in Guangdong’s Shaoguan Prison 22 years into his sentence. Wang is a veteran dissident who founded the China Democracy & Justice Party. In 2003, he was sentenced to life imprisonment for espionage and organizing a terrorist organization. Information given to Dui Hua by a Chinese government interlocutor confirmed that Wang suffered from thrombophlebitis, varicose veins, "sudden" bradycardia, tinea, and allergic rhinitis. He had suffered a mild stroke. Wang was in prolonged solitary confinement and subjected to daily “political study” meant to get him to write confessions and admit his crimes. Updates provided by his family in March 2023 revealed that Wang had contracted Covid-19 earlier that year, and that he was in constant dental pain and needed dental implants after eight of his teeth had fallen out. However, such dental care is not available in Shaoguan Prison. 

China has a track record in depriving political prisoners of medical care. Nobel Peace Prize Laureate Liu Xiaobo died from liver cancer in 2017 at age 61. Medical parole was granted only when his cancer had advanced. Wang Bingzhang, aged 77 this year, has yet to have his life sentence commuted despite repeated applications for medical parole and clemency over the past two decades. Such discriminatory treatment strengthens the fear that the Chinese government will simply let ailing elderly political prisoners die behind bars. 

Wang Bingzhang, aged 77 this year, has yet to have his life sentence commuted despite repeated applications for medical parole. Image credit: Raoul Wallenberg Centre 

Prisons are responsible for the well-being of all prisoners regardless of their crimes. They should ensure that everyone has immediate access to the specialist care they need. If such care is unavailable in prison, prisoners should be transferred to a hospital before their conditions worsen. Rule 27 of the UN Standard Minimum Rules for the Treatment of Prisoners states that “All prisons shall ensure prompt access to medical attention in urgent cases. Prisoners who require specialized treatment or surgery shall be transferred to specialized institutions or civil hospitals. Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide prisoners transferred to them with appropriate treatment and care.” 

Dui Hua Hits Important Milestone

Image credit: Dui Hua

Since the Dui Hua Foundation was established in 1999, it has composed and handed over 500 written requests for information on prisoners to the Chinese government. The Chinese government has never refused to accept a list from Dui Hua. 

In the past 25 years, Dui Hua has asked about 2,210 prisoners, of whom 396 were females and 1,316 were males (gender is not known in all cases). The foundation received responses on 1,070 prisoners, of whom 235 were females and 726 were male (gender is not known in all cases). Dui Hua has learned of 454 acts of clemency and better treatment afforded to 294 prisoners on its lists. 

Dui Hua’s Political Prisoner Database, used to generate prisoner lists, has grown from a few hundred names on notecards in 1999 to 48,699 names at the end of 2023. 

Individuals in the PPDB from 2004-2023. Image credit: Dui Hua

Prior to Dui Hua’s establishment in 1999, founder John Kamm actively engaged the Chinese government in a dialogue focused on prisoners, submitting hundreds of lists and receiving responses on more than a thousand prisoners. Unfortunately, good records were not kept. 

Dui Hua advocates for at-risk detainees — political and religious prisoners and other individuals facing coercive measures. Individuals have been subjected to coercive measures including detention, arrest, imprisonment, and residential surveillance in a designated location, among others. Most names raised by Dui Hua are largely unknown outside of China.

Recipients of Dui Hua lists have included the State Council Information Office, Ministry of Justice, Ministry of Foreign Affairs, Supreme People’s Court, State Administration for Religious Affairs, provincial and municipal governments, and government backed policy thinktanks.  

As judicial transparency deteriorated, the number of prisoners about whom information has been provided has decreased but has nevertheless continued. In 2024, nine lists have thus far been accepted and two responses on eight prisoners have been received. 

Sample of prisoner lists from August 1999 (left) and June 2000 (right). Image credit: Dui Hua 

Important acts of clemency that Dui Hua has learned of through active interventions include: 

Xu Wenli (徐文立). Xu was a prominent political dissident who was dubbed “China’s special prisoner number one.” Xu co-founded the China Democracy Party (CDP) and organized activities during the 1979 Democracy Wall Movement leading to his sentence of 15 years in prison in 1982. Kamm’s intervention contributed to parole in 1993. Xu was subsequently convicted of subversion and sentenced to 13 years in prison and three years DPR in 1998. This was Xu’s second imprisonment. Dui Hua inquired about his case eight times during 2000 and 2002. China provided eight responses. Those efforts contributed to Xu being granted medical parole in 2002 and receiving permission to seek medical treatment abroad. Kamm and Dui Hua also successfully advocated for other June 4 protesters and members of the CDP, including Wang Youcai (王有才).  

Zhang Lin (张林). A veteran activist, Zhang was tried and convicted in five separate trials between 1991 and 2014. Kamm and Dui Hua raised his name on ten lists and received eight responses. Dui Hua assisted a women’s rights activist to bring Zhang’s daughters to the United States, then with stakeholders to secure his passage to the United States in 2018.  

Jigme Sangpo (晋美桑布). Takna Jigme Sangpo was a Tibetan school teacher and advocate for Tibetan independence. He was believed to be the longest serving prisoner convicted of counterrevolution. Dui Hua assisted in negotiations, one of which took place in Lhasa. Jigme Sangpo was released in 2002 on medical parole and allowed to come to the United States for medical treatment before taking up residence outside Zurich, Switzerland. Dui Hua submitted eight inquiries between 1999 and 2003, and Kamm submitted at least two in 1995 before the foundation's establishment. He received six responses. Takna Jigme Sangpo passed away on October 17, 2020, at the age of 91. 

Ngawang Sangdrol (阿旺桑珍). At the age of 13, Ngawang Sangdrol was convicted of counterrevolutionary propaganda and incitement and sentenced to three years of imprisonment with one year deprivation of political rights (DPR) in 1992. Her sentence was then extended three times to 23 years. Ngawang was the youngest of 13 women known as the “singing nuns of Drapchi.” They secretly recorded and smuggled protest songs out of prison. Ngawang was granted a sentence reduction in 2001 and parole in 2002. John Kamm visited Lhasa in early 2003 and met with Ngawang. Dui Hua helped secure her departure to the United States for medical treatment that same year. Dui Hua made 11 inquiries between 2001 and 2003, either directly to the Chinese government or through governments that held human rights dialogues with China. The Chinese government provided ten responses. Dui Hua also assisted in efforts to secure the early release of another “singing nun,” Phuntsog Nyidron, in 2004.

Xu Zerong (徐泽荣). Xu, a Hong Kong resident and respected expert on China’s military history, was detained in 2000 and accused of stealing state secrets and illegal business activity. He received a combined sentence of 13 years, with three years of DPR. From 2002 to 2011, Dui Hua raised Xu’s case on 28 lists, directly or through stakeholders, and received 26 responses. Those efforts contributed to three sentence reductions, totaling 24 months. Kamm visited the prison where Xu was first incarcerated and pressed the warden to provide better treatment. Xu was transferred to a “model prison” and released in 2011. 

Rebiya Kadeer (热比亚•卡德尔). A prominent Uyghur businesswoman and representative to the Chinese People’s Political Consultative Conference, Rebiya was placed in custody in August 1999 after attempting to meet with staff of a US congressional delegation that was visiting Urumqi. She was convicted of illegally providing state secrets to an overseas entity in 2000 and sentenced to eight years in prison and two years of DPR. Dui Hua submitted eight inquiries between 2002 and 2004 to the Chinese government and received more than 20 responses. Dui Hua’s efforts contributed to a one-year sentence reduction in 2004 and medical parole in 2005. She was allowed to seek medical treatment aboard.  

Liang Jiantian (梁鉴添). Owner of a small printing shop in Guangzhou, Liang was convicted of illegal business activities, including publishing Falun Gong materials, and sentenced to life in prison in 2000. Dui Hua put Liang’s name on 20 lists and received 18 responses contributing to seven sentence reductions. Liang was released in October 2021.  

Tenzin Delek Rinpoche (丹增德勒仁波切, 阿安扎西). An influential Tibetan monk from Ganzi, Sichuan. An outspoken advocate for local Tibetan autonomy, he led efforts to provide education to poor children and orphans in the region. The authorities accused Tenzin Delek of involvement in several explosions in Chengdu and Ganzi. He was convicted of inciting splittism and setting off explosions and given a sentence of death with two-year reprieve in 2002. The sentence was later commuted to life in 2005. Dui Hua raised the case directly and through governments on 31 lists and received 31 responses during 2002 and 2015. Despite being in poor health, the prison authorities refused to grant him medical parole. Tenzin Delek Rinpoche passed away in July 2015 at the age of 65. The authorities refused to release the body back to the family for a proper burial, fearing potential social unrest. Dui Hua found and provided the family with government regulations that required the body to be treated with respect for ethnic traditions. The government relented. 

Shi Tao (师涛). Shi was an editor of a provincial newspaper in Hunan. In 2005, he received an internal notice instructing reporters not to cover the upcoming 15th anniversary of the June 4th crackdown, Shi described the post on an overseas website. He was detained in 2004 and sentenced to ten years for providing state secrets to an overseas entity. Dui Hua uncovered the connection between a US internet company and the case and attended a congressional hearing on the case. Shi was released in 2013.  

Yao Wentian (姚文田). Publisher and bookstore owner based in Hong Kong. (He is the father of Yao Yongzhan, John Kamm’s first intervention that took place in 1990.) He was convicted for smuggling common goods and sentenced to ten years in 2013. He received a short sentence reduction in 2019. Although the prison authorities refused to consider medical parole for Yao, he was placed in the medical ward of the prison for most of his sentence, exempted from physical labor, and allowed to receive monthly visits from his wife. Yao returned to Hong Kong on February 27, 2023. 

Li Yan (李彦). A woman from Anyue County in Sichuan was sentenced to death for murdering her abusive husband in 2012. The Supreme People’s Court affirmed the judgment in January 2013. In February 2014, Dui Hua convened an international conference on women in prison in which judges from the Supreme People’s Court took part. Topics of domestic violence were discussed. A judge and another official from the court told Dui Hua that what they heard was helpful in reversing the lower court’s decision. In June 2014, the SPC issued a decision to the Sichuan High Court to hold a retrial. The sentence was changed to death with two-year reprieve in April 2015.

Chen Taihe (陈泰和). A lawyer in Guilin, Guangxi, an associate professor at Guilin Electronic Technology University Law School, and an advocate of adopting the jury system, Chen was one of more than 300 lawyers and activists interrogated or detained in the “709” a national-wide police action in 2015, later known as the “7.09” crackdown. Dui Hua worked closely with Chinese officials and diplomats from China and the United States to secure a passport and permission for Chen’s departure for the United States in 2016.