Death penalty in China: The law and the practice

Journal of Criminal Justice 33 (2005) 367 – 376

Death penalty in China: The law and the practice Hong Lua,T, Lening Zhangb b

a Department of Criminal Justice, University of Nevada, Las Vegas, NV 89154-5009, United States Department of Behavioral Sciences, Saint Francis University, P. O. Box 600, Loretto, PA 15940-0600, United States

Abstract China is a nation that carries out the death penalty with a broad scope in its transition to a market economy. The present study described and analyzed the legal concept and practice of the death penalty in China in a comparative context. It presented an overview of the Chinese legal tradition of the death penalty, the legal development of the death penalty since the Chinese Communists took power, and the current practice of the death penalty in China. It represented an attempt to offer a researchbased understanding of the capital punishment in a nation that was experiencing significant change and transformation since the early 1980s. D 2005 Elsevier Ltd. All rights reserved.

Introduction The death penalty is a major concern in the legal and humanitarian fields. Information about the death penalty in China was limited and studies on the death penalty in China were relatively rare. Since the economic reforms and the bopen doorQ policy instigated in the early 1980s, increasing attention was given to the death penalty in China. The current study represented an attempt to describe and explain the law and practice of the death penalty in China from a historical, political, social, and cultural perspective. It focused on the recent legal development on the death penalty with discussions of the pertinent clauses stipulated in the 1997 Criminal Law and 1996 Criminal Procedural Law. The analysis drew upon several sources including the 1979 Chinese Criminal Law, the 1997 Criminal Law, the 1996 Criminal Procedural Law, the 1996 Amnesty International death penalty log, a survey of 520 published death penalty cases from 1984 to 2000 in China (see Appendix A for a list of the case collections),1 and a review of related

T Corresponding author. Tel.: +1 702 895 0242; fax: +1 702 895 0252. E-mail address: [email protected] (H. Lu). 0047-2352/$ - see front matter D 2005 Elsevier Ltd. All rights reserved. doi:10.1016/j.jcrimjus.2005.04.006

literature on law. The main objective was to present a preliminary study of China’s death penalty in a comparative context.

A historical overview of the death penalty in China A paradoxical approach with regard to capital punishment could be observed in Imperial China: harshness and rigidity versus humanity and flexibility. Law in Imperial China was primarily concerned with family affairs, crimes of violence, and crimes against the state. The harsh and rigid aspect of punishment was due to the strong penal emphasis of the imperial law. A common feature shared by penal codes of many ancient dynasties was the stipulation of bharsh and precise punishmentsQ. For example, a system of bfive punishmentsQ always carried a death penalty (Bodde & Morris, 1967).2 The death penalty primarily took three forms in ancient China: strangulation, decapitation, and slicing of the body. The public executions were aimed at educating and deterring the general public into obedience and allegiance with the government. In contrast to the harsh and rigid treatment of offenders under imperial law, the Confucian approach to crime and punishment was much more humane and flexible. Con-

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fucians believed that bsocial order was best maintained by the consensual means of exemplary conduct on the part of the ruler and a willingness to compromise on the part of the ordinary people, and that when punishment was regrettably necessary, it had to be accompanied by education in order that the offender might be reformedQ (Palmer, 1996, p. 108). The humanitarian values of Confucian ideology were against punishment of disadvantaged classes; for example, the elderly, the infirm, minors, and other special categories of individuals were exempted from having the death penalty imposed on them in imperial China. Since the establishment of the People’s Republic of China in 1949, there were two competing views with regard to crime and punishment. One was the informal and revolutionary approach inspired by Mao’s ideology of continuous revolution and class struggle. This populist approach often relied on ad hoc people’s tribunals, summary justice, and harsh punishment to dispense justice (Palmer, 1996). During the 1950s and the 1960s, the death penalty was applied quite extensively, primarily targeting political offenses-the counterrevolutionaries (Lepp, 1990, p. 1002). In contrast, the Soviet model inspired a more formal, bureaucratic, and codified legal framework. Though the formal legal ideology did not take a primary role during the earlier decades of the Chinese socialist construction, it started to gain recognition by the late 1970s (Lepp, 1990). The passing of the 1979 Criminal Law and the 1979 Criminal Procedural Law marked the end of the lawlessness era and the beginning of a system by law. Scobell (1991) summarized several features common to socialist countries (e.g., China, Cuban, the former East Germany, and the former Union of Soviet Socialist Republics) with regard to the use of the death penalty. First, socialist countries were generally committed to the abolishment of the death penalty, at least in theory. Indeed, the Chinese government had long claimed that crime would wither away as the socialist system progressed into Communism and the death penalty was only relied on temporarily to deal with the crime problem (Leng & Chiu, 1985). Second, as the countries were in favor of the death penalty, socialist countries purported that the death penalty was reserved only for the most serious offenses. Third, the justification for the death penalty in socialist countries was its deterrent or educative value. As a Chinese high court official said: bwe sentence people to death not to seek revenge but to educate others-by killing one we educate one hundredQ (Lee, 1986, p. 47). Finally, public opinion tended to be strongly in favor of the death penalty in these socialist countries. China, however, along with other former socialist countries, was experiencing great reform and change since the socialist system began collapsing in the 1970s. An interesting research question is: What is the legal status of the death penalty and how do the Chinese deal with various issues surrounding the death penalty in this reform context? Since China began moving towards a market economy, it

witnessed a sharp increase in criminal activities. Official statistics reported an increase of a total crime incidence of 340 percent and a ten-fold increase in serious crimes from 1979 to 1990 (Curran, 1998; Rojek, 1996). In 1978, the crime rate was 55.91 per 100,000. It reached 163.19 per 100,000 in 1998 (Liu & Messner, 2001). Violent and serious offenses were also surging. For example, the robbery rate in 1998 (about 10.8 per 100,000) was about five times higher than that in 1978 (about 2.8 per 100,000) (Liu & Messner, 2001). New offenses, especially offenses related to economic activities (e.g., counterfeiting currency and creditcard fraud), emerged and exploded. Scholars also observed a shift of the Chinese emphasis on informal control to formal control during this transition from a planned economy to a market economy (Rojek, 2001; Troyer & Rojek, 1989). bUnder Mao’s regime, the routine methods for social control were continuous revolution and class struggle rather than the enforcement of legal statutesQ (Zhang & Messner, 1999). The brule of lawQ had never taken roots and the legal system was never fully functional, particularly during the Cultural Revolution of 1966–1976. It was only after Mao’s death, that China’s new leadership began a shift from the brule of manQ to the brule of lawQ as the economic reform and the open door policy were carried out. The emphasis on formal control in the post-Mao era, manifested in the area of law, was the formalization and codification of various practices that in the past were primarily regulated by administrative regulations and customary laws. Statistics indicated that China’s National People’s Congress promulgated approximately a total of 185 laws during the nineteen years from 1978 to 1997, which was seven times the total number of promulgated laws (approximately twenty-six) during the twenty-seven years from 1950 to 1977 (see Young, Chen, & Gan, 1998 for a detailed bibliography of these promulgated laws from 1950 to 1997). The proliferation of laws in the post-reform era reflected the Chinese realization of the importance of law and a legal order in building a stable, modern, and an open society. Given the rising criminal activities and the changing emphasis from informal to formal control, it was interesting to study the legal status of, and practice in, the death penalty in China. The death penalty was argued, in many legal systems, as a great deterrent. While the global trend in the abolition of the death penalty was becoming apparent (Hood, 2002), how the death penalty was used in the changing context of China remained uncertain. The present study represented a preliminary effort to address these critical issues using available data sources.

The legal development of death penalty in the People’s Republic of China Laws with regard to the death penalty changed markedly since the establishment of the People’s Republic of China,

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especially after the economic reforms of the 1980s. These changes were reflected in both substantive and procedural laws. The first Criminal Law since the establishment of the People’s Republic of China was passed in 1979 (Kim, 1982), which included twenty-eight capital offenses (Cai, 1997). Among these capital offenses, fifteen were counterrevolutionary offenses (e.g., overthrowing the political power of the dictatorship of the proletariat and the socialist system, Article 103). The remaining capital offenses, as defined by the criminal law, included eight offense types on endangering public security (e.g., arson, Article 106), three offense types on infringing on personal rights (e.g., murder and rape, Articles 132 and 139), and two offense types on property crimes (e.g., robbery and corruption, Articles 150 and 155). In response to surging crime waves and emergence of new offense types during the course of economic reforms since the 1980s, some provisions of the 1979 Criminal Law were subsequently amended with decrees passed by the Standing Committee of National People’s Congress.3 As a result, the scope of capital offenses was dramatically increased from the previous twenty-eight offense types to seventy-four offense types before the revision of the Criminal Law in 1997. The 1997 Criminal Law (Luo, 1998) formalized and legalized many of the temporary measures instigated since the economic reforms of the 1980s. The Law extended the number of capital offenses to sixty-eight different types stipulated in ten broad crime categories: (1) crimes of endangering national security; (2) crimes of endangering public security; (3) crimes of undermining the socialist market economic order; (4) crimes of infringing upon the rights of the person and the democratic rights; (5) crimes of encroaching on property; (6) crimes of disrupting the order of social administration; (7) crimes of endangering the national defense interest; (8) crimes of graft and bribery; (9) crimes of dereliction of duty; and (10) crimes of violating duties by military servicemen. Among these broad offense categories, the only category that did not carry capital offenses was bcrimes of dereliction of dutyQ (for a detailed classification of these crimes, see Appendix B). In comparison with the 1979 Criminal Law, the newly added capital offenses in the 1997 Law tended to concentrate on areas of public security, economic order, and corruption. Crimes of endangering public security, such as terrorism and hijacking, and firearm control, carried a maximum punishment of the death penalty under the new law. Moreover, crimes that undermined the economic order such as smuggling and producing and distributing fake and shoddy goods were now capital offenses. Changes were also made with regard to corruption offenses. In the 1979 law, corruption was categorized under the section of offenses of encroaching on property. It was now an independent crime category, separated from other property and economic offenses. This stipulation reflected a growing recognition among Chinese lawmakers and political leaders of the

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epidemic of corruption problems (Zhang, 2001). In addition, the legal definition of corruption was much clearer in the current law with separate offenses including graft, bribery, and embezzlement, among which, graft and bribe-taking were capital offenses under the current law. According to the 1996 Criminal Procedural Law (CPL) (Luo, 2000), there were four levels of courts in China: basiclevel, intermediate, higher, and the Supreme People’s Courts. All four levels had a criminal division. The basiclevel courts had jurisdiction over ordinary criminal cases as courts of first instance (1996 CPL, Article 19). The intermediate courts had jurisdiction as courts of first instance over cases of endangering national security, common crimes that carried a maximum punishment of life imprisonment or death, and crimes committed by foreigners (CPL, Article 20). Higher courts as courts of first instance had jurisdiction over cases of great importance that affected an entire province (CPL, Article 21). The Supreme Court had jurisdiction as the court of first instance over cases having a major impact on the entire nation. All courts except the basic-level courts had jurisdiction over appeals from lower courts and the Supreme Court had authority of final approval over death penalty cases. The 1979 Criminal Procedural Law (Chinalaw website, Chinalaw no. 40) stipulated that jurisdiction over capital cases in the first instance lay with the intermediate courts (Article 15). It allowed convicted defendants one appeal to a higher-level court within ten days of the conviction. When a defendant appealed, the criminal penalty might not be increased; however, if the prosecutor appealed, a more severe sanction might be imposed (Article 137). The law further provided that for death penalty cases, if the defendant did not appeal, a death sentence would be automatically reviewed by a higher court. All death penalty sentences shall be reported to the Supreme People’s Court for final approval. Since the economic reforms, the process of arrest, adjudication, and the sentencing of death penalty cases were streamlined.4 For example, in 1981, the Standing Committee of the National People’s Congress issued a decision regarding the approval of cases involving death sentences for the period between 1981 and 1983 (Davis, 1987). The approval decision granted the right to approve death sentences for violent crimes and crimes threatening the public safety (e.g., murder, robbery, rape, and explosion and arson) to the higher courts and retained the power to approve death sentences for counterrevolutionary offenses, corruption, and economic offenses (e.g., bribery, smuggling, and drug trafficking) to the Supreme People’s Court. In 1983, the Supreme People’s Court issued a resolution formalizing the higher courts’ authority to approve death sentences for violent crimes and crimes threatening the public safety. Furthermore, a 1983 decision by the National People’s Congress reduced the time limit for requests for appeals from ten days to three days to expedite the adjudication of capital crimes (Davis, 1987).

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The appeal and the review process for the death penalty cases stipulated in the current 1996 CPL were more similar to that in the 1979 CPL. For example, the current CPL stipulated that death sentences shall be verified and approved by the Supreme People’s Court (Article 199) and the time for appeal after conviction was ten days. According to the Supreme People’s Court’s recent interpretations of the CPL (Luo, 2000, Article 274) and the Organic Law of the People’s Court, the Supreme People’s Court, however, when deeming necessary, could still grant the power to higher courts to verify and approve death sentences in certain types of cases.

The practice of the death penalty in China The actual application of the death penalty in China was not merely a legal matter, but reflective of political and social climate of the time. Official reports of death penalty cases were also influenced by the political and social climate of the time. It was extremely difficult to have valid and reliable data to conduct an accurate assessment of the practice of the death penalty in China. The present study presented an attempt to present a preliminary profile of the practice using available sources such as officially published death penalty cases in China and the annual reports from the Amnesty International. Although the validity and reliability of these sources were questionable, the data derived from these sources might allow one to have a tentative and preliminary assessment of the practice of the death penalty in China with cautions. A broad scope of the death penalty It was well known that China was among one of few countries in the world that had actively and widely imposed the death penalty on ordinary crimes. While there seemed an agreement that no systematic official statistics were available on this subject, studies citing Amnesty International (1989–95) suggested that during the two decades of the 1980s and the 1990s, there were between 200 and 2,000 executions each year in China. Moreover, studies suggested that death penalty population was primarily composed of violent offenses (e.g., murder, rape, and robbery) and only marginally contributed by economic offenses and political offenses (Felkenes, 1989; Leng & Chiu, 1985; Scobell, 1991).5 Based on the 1996 Death Penalty log published by the Amnesty International on China, a recorded 6,145 people were sentenced to death. Among them, convicted offenses were known in 4,490 cases. Out of these 4,490 death penalty cases, 66.4 percent involved violent crime (e.g., murder, robbery, rape, and abduction of women and children), 2.9 percent involved economic and corruption related cases (e.g., graft and fraud), and an approximately 13 percent involved drug trafficking.

The survey of 520 published death penalty cases revealed that out of the ten broad offense categories stipulated in the 1997 Criminal Law that had at least one offense type punishable by the death penalty, these sample cases encompassed only six broad crime categories. More specifically, there were twenty-six offenses against the public security,6 forty-two economic crimes,7 284 violent offenses,8 forty-one property offenses,9 fifty-one offenses of disrupting social orders,10 and seventy-six corruption cases.11 The expansion in the number of capital offenses and active imposition of the death penalty in many of these offense categories in China seemed contradictory with the international movement on the abolishment of the death penalty. By the end of 1995, while eighty-two out of 191 (43 percent) nations worldwide retained the death penalty, the remaining 109 countries (57 percent) had either completely abolished the death penalty (sixty nations), abolished the death penalty for ordinary offenses (fourteen nations,) or had been de facto abolitionists (thirty-five nations) (Hood, 2002). The Chinese pattern on the use of the death penalty also contradicted with its former socialist counterparts in Eastern Europe (formerly socialist countries). With the collapse of the Communist regime in Eastern Europe, countries such as Moldava, Ukraine, Albania, and Bosnia-Herzegovina abolished the death penalty in 1995. The Russian Federation began its commitment to abolish the death penalty in 1996 and became a de facto abolitionist due to rare executions in recent years.12 Perhaps the only nation that is comparable with China in its expansion of the death penalty is the U.S. The U.S. is the only Western developed nation that retains and uses the death penalty for ordinary crimes. At the state level where death penalty is legal (in thirty-seven states currently), it is primarily reserved for first-degree murders. The Federal Death Penalty Act of 1994, however, stipulated an approximate sixty capital offenses, which included murder of federal officials, treason, espionage, and felonious drug offenses. Death penalty with suspended execution Scholars studying the death penalty in China invariably noted the unique death penalty practice-the two-year suspension of execution for death penalty (Lepp, 1990; Palmer, 1996). The 1979 Criminal Law stipulated that bin the case of a criminal element who should be sentenced to death, if immediate execution is not essential, a two-year suspension of execution may be announced at the same time that the sentence of death is imposed, and reform through labor carried out and the results observedQ (Article 43). The law further specified that if the offender showed remorse, after the completion of two years, the death penalty shall be commuted to life imprisonment; if the offender showed remorse and had

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meritorious services, after two years, the death sentence shall be reduced to fifteen to twenty years of imprisonment; however, if the offender refused to be reformed, after two years, the death penalty shall be carried out (Article 46). The 1997 Criminal Law retained the stipulation in the previous law about the suspended death sentence. The new law, however, changed the conditions of commutation from the death sentence to a lighter sentence. In the original criminal law, offenders’ attitude of contrition was crucial in sentence reduction. In the new law, the offender’s deeds became a major factor. More specifically, the 1997 law stated that bif a person. . .does not intentionally commit a crime during the period of the stay, his punishment shall be commuted to life imprisonment upon the expiration of the two-year period; if he performs substantial meritorious service, his punishment shall be commuted to fixed-term imprisonment of not less than fifteen years no more than twenty years. . .; if it is verified that he has committed an intentional crime, the death penalty shall be executed upon the order or approval of the Supreme People’s CourtQ (Article 50). If there are any concerns about the arbitrariness of the death sentence decisions, more concerns should be on the death sentences with a stay of execution. In law, the death sentence may be suspended when bimmediate execution is not essential.Q In practice, the following offender and offense characteristics are likely to be considered for the suspended death sentences: (1) offenders voluntarily turned themselves in and/or performed substantial meritorious service (e.g., helping law enforcement officials capture other offenders or providing important information about unsolved crimes); (2) other offenders in gang crimes while the ring leaders have already been executed; (3) victims shared some responsibility for the crime; (4) to save live evidence; and (5) offenders have overseas connections (Chen, 2002). Recent years saw severe imposition of death sentences on offenders who would have qualified for a suspended death sentence for voluntarily turning themselves in. The survey of 520 cases revealed that of the total thirty-two cases in which offenders voluntarily turned themselves in, offenders in twelve of these cases, received the death penalty without suspension. A corruption case was illuminative for this purpose. The defendant, taking advantage of his official duty as a chief inspector of the Zhenjiang customs, took millions of Yuan in bribery money and allowed smuggling goods getting through the customs. The judge reasoned that the defendant’s criminal activities had resulted in bcountless losses in taxes,Q had an extremely negative influence on the borganization’s work ethics,Q and seriously undermined the bintegrity of the government.Q Despite that the defendant voluntarily returned some bribery money and showed remorse, the judge reasoned that the nature of his offense was so grave and its social effects were so negative, the death penalty was the only appropriate

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punishment in this case to deter and educate the public and to serve justice. The recent trend of formalizing the death sentences and reducing the impact of the attitude on death sentences marked a departure from the traditional Chinese legal culture that emphasized the correctional value of offenders’ confessions. This was different from Japan, which still preserved the cultural tradition of contrition, repentance, and forgiveness by murder victim’s family members in death sentence decisions (Coyne & Entzeroth, 2001). Minors exempted from death penalty The 1979 Criminal Law stipulated that only persons of eighteen years or older could be punished by death. If the crime was particularly grave, however, offenders of sixteen or seventeen years old when the crime was committed, could receive the death penalty with a two-year suspension of execution (Article 44). The 1997 Criminal Law retained the minimum age requirement of eighteen years old for the death penalty and repealed the stipulation of young offenders (between sixteen and seventeen years old) to receive the death penalty with suspended execution (Mao, 1999, p. 105). Studies on the death penalty in China suggested that young people were disproportionately more likely to be given the death penalty. It was estimated that at least 50 percent of offenders executed in recent years were between eighteen and twenty-five years old (Palmer, 1996). The survey of the 520 capital offenses revealed that the mean age of the death penalty was 32.51 years old. The youngest offender sentenced to death was sixteen years old13 and the oldest offender was sixty-seven years old.14 The mean age of the death penalty offenders was 42.47 years old for corruption cases and 28.89 years old for violent crimes. Age is one of the critical issues surrounding the death penalty debate. Executing a minor is generally regarded inhuman because of their less developed mental and psychological capability than adults. A U.N. resolution stipulated that no young person under eighteen should be subject to the death penalty. Moreover, in some countries, restrictions were applied to offenders’ maximum age.15 Women under special circumstances exempted from the death penalty Pregnant women continue to be exempted from the death penalty in China. This is consistent with the international standards. Non-pregnant women, however, are suspected of receiving special treatment for death penalty decisions in practice in some countries. For example, only about 1.5 percent of all death row inmates are women in the U.S. (Bedau, 1996).16 In other countries, women are excluded entirely from the death sentences by law. For instance, all women are exempted from the death penalty in the Russian Federation (Van Den Berg, 1996).

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In China, due to a wide variety of offenses punishable by death sentence, especially among them, nonviolent economic offenses, it should be easier for women to commit a capital offense and be sentenced so. As the survey showed, among the 520 death penalty cases, 8.5 percent of the defendants were women, which was much higher than that in the U.S. If, however, looking only at female offenders sentenced to death for violent offenses, which was more likely to be the case in the U.S., the difference between the two countries became much smaller. The data showed that about 5 percent of the female offenders received the death penalty for violent offenses. The changing appeal process for death penalty cases The appeal process for the death penalty cases changed back and forth in China. For example, during the strike hard campaigns in the 1980s and 1990s, the Supreme People’s Court’s authority to approve the death penalty was, from time to time, undermined to expedite the case process. In addition, the legally guaranteed ten-day grace period for a defendant to file an appeal after the trial was cut down to three days during the period of 1983 to 1997. The survey of the 520 death penalty cases confirmed that the Supreme People’s Court’s authority to approve the death penalty cases was often undercut. For example, only about 30 percent of the 520 cases were reviewed and finally approved by the Supreme Court. Across the six offense categories, all cases involving corruption and public order offenses (e.g., drug trafficking) were reviewed by the Supreme Court, whereas only a few violent and property offenses were reviewed by the Supreme Court. The time for a death penalty case moving from arrest to final approval varied tremendously. For example, the average time between arrest and verdict of the first trial was 242 days, and among them, the shortest time for a case to receive a verdict from the first trial was three days, and longest was 1,160 days.17 The average time between the first trial and the second trial/review was seventy-seven days, and among them, the shortest time for a case to receive a verdict from the second trial/review was two days, and the longest was 810 days.18 The average time for a case to be processed from arrest to final approval of execution was 102 days. The shortest review conducted by the Supreme Court was two days, and the longest was 1,223 days.19 Legal representation became a requirement for cases facing a maximum punishment of the death penalty. As the 1996 Criminal Procedural Law stipulated, bin cases where the accused may be sentenced to capital punishment and he does not retain any defenders, the people’s court shall appoint a lawyer, who voluntarily is undertaking a legal aid obligation, to defend himQ (Article 34). Though international standards regarded legal representation as defendants’ fundamental rights for a fair trial, a defense attorney had never achieved equal status in China. Studies revealed that only about 20 percent of criminal trials

had legal counsel in China (Lu & Miethe, 2002). The survey of 520 death penalty cases suggested that out of the 347 cases, of which information about legal representation was provided, an approximate 70 percent of these death penalty cases had legal representation. Given that only after the 1996 Criminal Procedural Law, legal representation became a requirement for capital cases, the data indicated that after 1997, only three out of the 120 cases were without legal representation. In all three cases, based on the court case judgment documents, defendants declined the appointment of attorneys and decided to represent themselves in court. In 1996, twenty out of fifty cases were without legal representation. The law was effective after October 1, 1996, thus it might be assumed that the cases already started its proceeding when the law became effective.

Summary and discussion The present study reviewed the legal tradition on the death penalty, analyzed the legal development on the death penalty since the Chinese Communists took over power, and examined the current practice of the death penalty in China. The assessment revealed several interesting observations. China has two distinctive legal traditions on the death penalty. The legalistic tradition emphasizes the importance of the death penalty for order maintenance, whereas the humanitarian tradition stresses the educative and reformative value of the death penalty. Though paradoxical, both of these traditions have had a significant impact on the Chinese perspective and usage of the death penalty. Which tradition takes a priority seems to be largely dependent upon the social and political climate. When the social conditions are relatively stable, the humanitarian tradition is likely to prevail. Yet, when social conflicts become acute and crime rates are surging, the legalist deterrence tradition appears to be dominant. Historically, China was a bcrime-freeQ society with its extremely low crime rates. Surging crime rates accompanied the economic reform and the bopen doorQ policy since the 1980s. Facing the challenge of rising criminal activities, it was not surprising that China increased the number of capital offenses from twenty-eight in the 1979 Criminal Law to sixty-eight in the 1997 revised Criminal Law. This expanded scope of capital offenses and the current practice of heavy reliance on the death penalty could be observed as a legal reaction to the sharply surging crime waves. Also observed was a shift of the application of capital punishment in China. During Mao’s time, the primary target of the death penalty was political offenses-the counterrevolutionaries. The 1979 Criminal Law included twenty-eight capital offenses. Among these capital offenses, fifteen were counterrevolutionary offenses. As the nation was moving towards a market economy, however, new types of offenses emerged and many of

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these offenses were economic in nature. As a result, a large proportion of capital offenses stipulated in the 1997 revised Criminal Law were related to, and/or stemmed from, economic activities (e.g., credit-card fraud, graft and bribery, and drug trafficking). This shift of punishment represented the Chinese attempt to use legal measures to help maintain a new economic order. Another observation was the discrepancy between blaw on the bookQ and blaw in action.Q Given that China was one of the few nations extensively employing the death penalty, one major concern was the procedural justice. Critical issues such as forgoing the legally stipulated waiting time for appeal, competent and effective legal representation, rights to remain silent, and confession need to be addressed to ensure a fair criminal proceeding for the defendant. For example, during the strike-hard campaign of crime in 1983–84, the ten-day grace period for filing an appeal was cut down to three days in order to speed up the processing of criminal cases. This was especially crucial given the traditional inferior status of the law in China (1966–1976) (Eliasoph & Gruenberg, 1981; Leng & Chiu, 1985; Ren, 1997). Finally, the dramatic expansion of the scope of capital offenses reflected the Chinese heavy reliance on the death penalty as a legal measure in curbing the surging crime waves during the transitional economy. It represented a sharp contrast with the global abolition movement, especially among the former socialist countries of East Europe. Although criminal activities were also soaring in most of these East European countries as they were trying to merge into the Western capitalist system, all of these countries had either completely abolished the death penalty or had abolished the death penalty in practice (e.g., the death penalty was temporarily suspended in the Russian Federation. As a result, no death penalty sentence has been granted since 1996) (Hood, 2002). One possible explanation of this divergent death penalty development among the socialist countries was that these countries might have more humanitarian tradition and were eager to be integrated into the Western capitalist system. In contrast, the Chinese traditionally adopted more pragmatic attitudes towards the death penalty. While some experts argued that the application of the death penalty to economic offenses was to devalue human life in favor of material value (Ma, 2004), many were in favor of this practice for pragmatic reasons. Whether and how capital punishment evolves in China will be largely dependent upon its social and political development in the future.

Appendix A. List of case collections Cao, Jianming (2000). Renmin fayuan anli xuan 1992– 1999 (selected cases from the People’s Courts-1992– 1999). Beijing: China Law Publishing House. Zhu, Mingshan (1994). Zhongguo shenpan anli yaolan-1993 xingshi anli juan (selected Chinese

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Criminal Court cases-1993). Beijing: Chinese University of People’s Public Security Publishing House. Zhu, Mingshan (1995). Zhongguo shenpan anli yaolan1994 xingshi anli juan (selected Chinese Criminal Court cases-1994). Beijing: Chinese University of People’s Public Security Publishing House. Zhu, Mingshan (1998). Zhongguo shenpan anli yaolan1997 xingshi anli juan (selected Chinese Criminal Court cases-1997). Beijing: Chinese People’s University Publishing House. Zhu, Mingshan (1999). Zhongguo shenpan anli yaolan1998 xingshi anli juan (selected Chinese Criminal Court cases-1998). Beijing: Chinese People’s University Publishing House.

Appendix B. Capital offenses stipulated in the 1997 Criminal Law* Crimes of endangering national security (Article 113) ! Plotting to jeopardize the sovereignty, territorial integrity, and security of the country ! Instigating to split the country ! Organizing, plotting, or carrying out armed rebellions, or armed riots ! Organizing, plotting, or acting to subvert the political power of the State ! Espionage ! Stealing, secretly gathering, purchasing by bribery, or illegally providing the national secrets or intelligence for foreign institutions ! Providing the enemy with armed equipment or military materials Crimes of endangering public security (Articles 115, 119, 121, 125, and 127) Arson Breaching dikes Causing explosions Poisoning Threatening public security with dangerous methods Sabotaging transportation instruments Sabotaging transportation infrastructures Sabotaging electric power Sabotaging inflammable or explosive facilities Hi-jacking an aircraft Illegally manufacturing, trading, transporting, and mailing guns, ammunitions, or explosives ! Illegally trading or transporting nuclear materials ! Stealing or snatching guns, ammunitions, or explosive materials ! Forcibly seizing guns, ammunitions, or explosive materials ! ! ! ! ! ! ! ! ! ! !

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Crimes of undermining the socialist market economic order (Articles 141, 144, 151, 157, 170, 199, 205, and 206) ! ! ! ! ! ! ! ! ! ! ! ! ! ! !

Producing or distributing bogus medicines Producing or distributing poisonous or harmful foods Smuggling weapons and ammunitions Smuggling nuclear materials Smuggling counterfeited currencies Smuggling cultural relics Smuggling precious metals Smuggling rare plants and their products Counterfeiting currency Illegal fund-raising fraud Financial instrument fraud Letter of credit fraud Credit-card fraud Illegally issuing value-added tax invoices Counterfeiting or selling counterfeited value-added tax invoices are capital offenses

Crimes of infringing upon the rights of the person and the democratic rights (Articles 232, 236, 239, and 240) ! ! ! ! !

Murder Rape Statutory rape Kidnapping Abducting women and children Crimes of encroaching on property (Articles 263 and 264)

! Robbery ! Theft Crimes of disrupting the order of social administration (Articles 295, 317, 328, 347, and 358) Imparting criminal methods Organizing a jail break Prison riots using weapons Illegally digging and robbing ancient remains or tombs Illegally digging or robbing fossils of ancient human beings or fossils of ancient vertebrate animals ! Smuggling, trafficking, transporting, or manufacturing narcotics ! Organizing another person to engage in prostitution ! Forcing another person to engage in prostitution ! ! ! ! !

Crimes of endangering the national defense interest (Articles 69 and 370) ! Sabotaging military weapons, military installations, or military communications ! Knowingly providing unqualified weapons or military installations to the armed forces

Crimes of graft and bribery (Article 383) ! Graft ! Bribe-taking Crimes of violating duties by military servicemen (Articles 421, 422, 423, 424, 426, 430, 431, 433, 438, 439, and 446) ! Refusing to carry out an order in wartime ! Deliberately concealing military intelligence, furnishing falsified intelligence ! Refusing to disseminate military orders, or falsely disseminated military orders ! Surrendering to the enemy ! Deserting on the eve of a battle ! Obstructing commanding officers or on-duty servicemen from carrying out their duties ! Defecting to a foreign country ! Illegally obtaining military secrets ! Illegally providing military secrets to foreign organs ! Fabricating rumors to mislead people during wartime ! Stealing or robbing weapons or military materials ! Unlawfully selling or transferring military weaponry ! Injuring or killing innocent residents or looting property from innocent residents during wartime * Source: Chen (2002) and Luo (1998).

Notes 1. The collections usually included typical death penalty cases that were identified by legal officials and experts as examples for legal study and practice. They provided basic case information such as gender, age, and offense types. 2. According to Liu (1998), bfive punishmentsQ had two versions. The original bfive punishmentsQ was created in the Shang Dynasty, including bMoQ (branding), bYiQ (cutting off a personTs nose), bFeiQ (cutting off a personTs feet), bGongQ (cutting off a male offenderTs reproductive organ or detaining a female offender for life), and bDa PiQ (various forms of the death penalty including decapitation, slicing, and burning the offender to death).The newer form of the bfive punishmentsQ was more lenient, involving bChiQ (beating offenders with a light bamboo for a maximum of fifty strokes), bZhangQ (beating offenders with a heavy bamboo for sixty to one hundred times), bTuQ (enslave offenders for one to three years), bLiuQ (exile), and bShiQ (death penalty by decapitation or hanging). 3. According to Chen (2002), the following decrees passed by the Standing Committee of National PeopleTs Congress after 1980 and before 1997 carried additional capital offenses that were not part of the 1979 Criminal Law. For example:

! The 1981 Decree on Punishing Military Personnel Who Derelicts Their Military Duty stipulated thirteen capital offenses including theft of military secrets, theft of military equipment, voluntarily surrender to enemies, and looting and torturing innocent civilians during a war.

H. Lu, L. Zhang / Journal of Criminal Justice 33 (2005) 367–376

! The 1982 Decree on Severely Punishing Those Who Disturb the

!

!

! ! !

! ! !

!

!

Economic Order stipulated seven new capital offenses. They were smuggling, profiteering, theft, habitual theft, stealing and illegally exporting precious cultural relics, drug trafficking, and bribe-taking. The 1983 Decree on Severely Punishing Those Who Threaten Public Security added ten capital offenses including hooliganism, intentional assault, stealing or trafficking weapons, pimping, abducting and selling human beings, and teaching others with criminal techniques. The 1988 Supplementary Regulation on Punishing Those Who Leak National Secrets stipulated one capital offense which was stealing, secretly gathering, purchasing by bribery or illegally providing the national secrets or intelligence for foreign institutions. The 1990 Decree on Prohibiting Narcotics made transporting and manufacturing illicit drugs a capital offense. The 1991 Supplementary Regulation on Punishing Illegally Digging and Robbing Ancient Remains or Tombs made it a capital offense. In 1991, the Resolution on Severely Punishing Those Who Abduct and Sell Women and Children stipulated three capital offenses: abducting and selling women and children; abducting women and children, and kidnapping and extortion. The 1991 Resolution on Prohibiting Prostitution and Pimping stipulated two additional capital offenses: organizing others in prostitution, and forcing others into prostitution. The 1992 Decree on Punishing Those Who Hi-jack an Aircraft made hi-jacking a capital offense. The 1993 Resolution on Punishing Those Who Produce and Sell Fake and Shoddy Products stipulated two capital offenses: manufacturing and selling fake medicine, and manufacturing and selling poisonous foods. The 1995 Resolution on Punishing Those Who Disturb the Financial Order stipulated that currency counterfeiting, fraudulent fund-raising, fraud with financial instruments, and creditcard fraud were all punishable by death. The 1995 Resolution on Punishing Those Who Issue, Counterfeit, or Sell Special Value-added Tax Invoices stipulated that illegally issuing value-added tax invoices and counterfeiting or selling counterfeited value-added tax invoices were capital offenses.

4. In 1980, the Standing Committee of the PeopleTs Congress issued a resolution allowing the higher courts to approve the death sentences for major violent offenses such as murder, rape, robbery, and arson to the higher courts, upon the Supreme PeopleTs CourtTs authorization. In 1981, the Standing Committee of the PeopleTs Congress issued another resolution clarifying the scope and the time period of the higher courtsT approval authority in death penalty cases (see the text). On September 2, 1983, the Standing Committee through the revision of the Organic Law of the PeopleTs Courts, reiterated that when necessary, the Supreme PeopleTs Court might authorize the higher courts the power to approve death sentences in violent offenses. On September 7, 1983, following the Standing CommitteeTs resolution, the Supreme PeopleTs Court issued a resolution formalizing the measures of expediting the process of the death penalty cases by authorizing higher courts the power to approve death sentences for major violent offenses (Chen, 2002).While the Supreme PeopleTs Court still retained the power to approve death

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sentences for counterrevolutionary, corruption, and economic offenses, due to regional disparities, the Court authorized, in 1991 and 1993 respectively, the higher court of Yunnan and Guangdong provinces the power to approve death sentences for drug trafficking offenses, with an exception of those drug trafficking cases tried by the Supreme PeopleTs Court and involving foreigners (Chen, 2002). 5. Even though the death penalty was disproportionately less likely to be applied to economic crimes, Felkenes (1989) stated that overall, a significant number of crimes were imposed with the death penalty where there was no loss of human lives in China. 6. Offenses against the public security included nine cases of illegal trading of guns or ammunitions, two cases of arson, one case of setting fires and causing explosions in public, three cases of poisoning, five cases of sabotaging electric power, four cases of stealing guns and ammunitions, and illegal trade of explosions. 7. Economic offenses included twelve cases of producing and distributing fake and shoddy goods, one case of causing death with fake medicine, seven cases of smuggling, one case of illegally issuing value-added tax invoices, eighteen cases of profiteering, three cases of fraud with financial instruments, and one case of currency counterfeiting. 8. Violent offenses included six intentional assaults, 112 murders, 110 robberies (robbery was classified as a property crime under the Chinese Criminal Law, however, to make it consistent with Western literature, robbery cases were grouped with violent offenses), one homicide, ten rape cases, fifteen kidnapping cases, fourteen cases of public humiliation and molestation of women by violence and coercion (hooliganism), and sixteen cases of abduction of women and children, and human smuggling. 9. Property offenses included thirty-nine thefts and two cases of fraud. 10. Crimes of disruption of social orders included thirty-four cases of smuggling, trafficking, transporting and manufacturing narcotics, nine cases of organizing and forcing prostitution, and eight cases of organized jailbreak or prison riot. 11. Corruption cases included forty-eight graft offenses and twenty-eight cases of bribe-taking. 12. In 1990, Russia executed seventy-six criminals. Only three and four criminals, however, were executed in 1993 and 1994 respectively, marking the commitment of the Russian Federation on the abolishment of the death penalty. 13. Five offenders, sentenced to death for violent offenses, between sixteen and seventeen years old at the time they committed the crime, were all tried and sentenced before 1997. 14. This offender was a high-ranking governmental official, sentenced to death for committing graft. 15. For example, in the Russian Federation, no one over sixty-five years old shall be subject to the death penalty (Van Den Berg, 1996). In Japan, being too old constituted a ground for clemency of the death sentence (Coyne & Entzeroth, 2001). 16. This might be explained by the fact that most of the death sentences were given to first-degree murderers, and women who committed murders typically killed their intimates. Intra-familiar murders rarely qualified as first-degree murder. 17. It took three days for an intermediate court (first trial) to reach a death penalty verdict in a murder/robbery case in 1995. The longest first trial that reached the death penalty decision was in a case of an economic crime in 1997. 18. The shortest second trial/review conducted by a high court was in a corruption case in 1993. The longest second trial/review conducted by a high court took 810 over a robbery case in 1991.

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19. The shortest final review by the Supreme Court was in a corruption case in 1989; and the longest review by the Supreme Court was a theft case, reviewed in 1996. It took 1,223 days to finish.

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Statutes cited Criminal Law (1979). Criminal Law (1997). Criminal Procedural Law (1979). Criminal Procedural Law (1996). Federal Death Penalty Act (1994).