I. Preamble Along with vigorous development of the international movement to restrict and abolish the death penalty and increasing advancement of the rule of law and the cause of human rights in China, China has made great progress in reform of its capital punishment system over recent years. In 1997, the National People’s Congress (NPC) ? China’s national legislature ? adopted a new Criminal Law to further define the objects and limit the scope of objects punishable by death. Since then, China’s supreme judicial organs have adopted a series of measures to strictly restrict the application of death sentences. On January 1, 2007, the Supreme People’s Court retrieved the power to review and approve death sentences for its own exclusive exercise, which had been mostly decentralized to provincial Higher People’s Courts for their separate exercise. Moreover, the Supreme People’s Court has promulgated a series of judicial documents to make stricter the substantive and evidential standards for applying the death penalty. On the basis of these developments, the NPC Standing Committee adopted in February 2011 Amendment(VIII) to the Criminal Law, further abolishing capital punishment for 13 nonviolent crimes, and abolishing in principle capital punishment for crime committed by elderly people, which enabled China to take a major step in reforming legislation on the death penalty system. In future, China will, in accordance with the fundamental policy of governing China by law, rationally set the targets for reform of the capital punishment system, prudently choose a route for reform in this endeavor, and systematically and tactically promote in-depth reform of the capital punishment system, in keeping meeting the requirement for social development as well as progress in human rights protection and the rule of law in China. This article has been written to focally make a forward-looking exploration into future prospects for reform of the death penalty system in China.
II. Targets for reform of the death penalty system in China
Targets are a guide to actions. As far as targets for reform of the death penalty system in China is concerned, the Chinese legal circles of criminal justice theory and practice have had three different proposals on it ? the proposal for maintaining the status quo, the proposal for reducing the use of capital punishment and the proposal for abolishing the death penalty. Comprehensively taking into account both the international and domestic contexts for reform of the death penalty system in China, I think that reform of the death penalty system in China should be based on the existing system of capital punishment in the country, and should be meant to gradually restrict and reduce the application of capital punishment toward eventual abolition of the death penalty. In particular, to further restrict and reduce the application of the death penalty should be taken as a target for reform of the death sentence system in China for the near future. In comparison, a total and thorough abolishment of capital punishment in China should be a longterm target that China should unswervingly strive to meet in reform of the death sentence system in the country.
(I) Targets for reform of the death sentence system in China for the near future
To restrict and reduce the use of capital punishment is a universal demand of the international community to countries that still maintain the death penalty. It is also a basic position of China on reform of the death sentence system in the country over recent years. In my opinion, in a pretty long period of time to come, China should always take further restriction and reduction of the use of capital punishment as a target for reform of the death sentence system in the country for the near future, which is also a realistic requirement for social development in China for the current stage.
1. The present realities and public opinions in China determine that it will be inadvisable to immediately abolish the death penalty in the country, which is manifested mainly in the following two respects:
(1) Viewed from the perspective of history and culture, China still lacks the cultural conditions for abolishing the death penalty. Professor Roger Hood, a famous international expert on death penalty legislation, said with much insight that abolition of the death penalty in Europe has it roots in its political culture. However, China has cultural concepts that are totally different from those of the countries and regions around the world that have abolished the death penalty in them. Such concepts of retribution as “a death for a death” and “tit for tat”to some extent still dominate the social psychology and culture in China, which it is impossible to get rid of in the near future. Under such a circumstance, it will be inadvisable for China to completely abolish capital punishment in the country in the near future. Otherwise, it may negatively impact public conception about social justice, and may even result in emergence and widespread abuse of “remedy by private power” in the country, which will in turn negatively impact the basic order of society.
(2) Viewed from the perspective of realistic conditions, China is not of the necessary basis for a total abolition of the death penalty in the near future. The countries and regions around the world that have completely abolished the death penalty in them mostly have a common ground: They have a judicial practice of not using the death penalty or very little using the death penalty for long, or their culture of abolishing the death penalty is of relatively profound influence in the countries and regions. Different from them, China has vast territories and a large population, with various regions in the country different from one another relatively great in terms of social development. As a result, under impacts of such factors as population, territory and culture, many social problems in China have become more complicated. So far, China has been of no judicial practice of not using the death penalty or very little using the death penalty, and also lacks the means to make necessary correct guidance over public conception about capital punishment. Therefore, it will be inadvisable and also difficult for China to completely abolish the death penalty in the country in the near future.
2. Relevant international and domestic factors determine that China should presently strive to restrict and reduce the use of capital punishment in the country. Such factors are manifested mainly in the following three respects:
(1) Changes in the conception of human rights in China:
As a result of continued deepening of the process of reform and opening up and strengthening of human rights protection in the country, both public awareness about rights and public conception about the rule of law in China have undergone unprecedented development and enhancement over recent years. Accordingly, a clause that “the State respects and protects human rights” has been expressly written into an amendment to the Constitution and has thus become an important constitutional principle. Under such a situation, Chinese society, generally speaking, is relatively stable, with the public being of a relatively strong sense of security. The public demand for massive use of the death penalty in China does not appear to be strong, while public opinions tend to generally criticize cases of wrong use of the death penalty in practice. According to public opinions, there do exist factors for pardoning convicts. Even for convicts guilty of serious crimes, the public generally adopt a more tolerant attitude toward them than in the past. Such a promotion and change of public conception about human rights has contributed to requiring China to restrict and reduce the use of capital punishment accordingly in the present stage.
(2) Requirement of the fundamental policy of governing China by law:
Governance of China by law is a fundamental policy for social development and progress in present-day China. At the 2nd session of the 9th NPC held in Beijing in March 1999, the fundamental policy of “governing China by law and building China into a socialist country with the rule of law” was officially written into an amendment to the Constitution. Under the guidance of the fundamental policy of governing China by law, the development of criminal rule of law in China has registered great progress. The Criminal Law of China revised in 1997 establishes a package of three basic principles required of the modern criminal law ? the principle of nulla poena sine lege (no penalty without a law), the principle of equal application of the criminal law to all, and the principle of suiting penalty to crime and criminal responsibility. In particular, the intrinsic meaning of the justifiableness of criminal punishment under the principle of nulla poena sine lege contributes to raising a new further requirement for reform of the death sentence system in China. It requires compulsory restriction and reduction of the use of capital punishment.
(3) Requirement of the relevant international conventions:
So far, the Chinese government has signed or acceded to more than 20 international conventions on human rights, including the International Covenant on Civil and Political Rights and the United Nations Convention on the Prohibition of Torture and Other Cruel, Inhuman or Indignity Treatments or Punishments. To restrict and reduce the use of capital punishment is a universal demand of these international conventions on human rights to the countries that still maintain the death penalty. For example, Article 6 of the International Covenant on Civil and Political Rights expressly provides that“sentence of death may be imposed only for the most serious crimes.” Article 1 of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty approved by the United Nations Economic and Social Council provides:“In countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences.” Under such a circumstance, China is dutybound to restrict and reduce the use of capital punishment in light of the requirement of the relevant international conventions it has acceded to or has recognized.
(II) Long-term targets for reform of the death sentence system in China
Along with gradual realization of short-term targets for restricting and reducing the use of capital punishment in China, the death penalty legislation and the use of death sentences in China will both decline obviously. In future, China should take comprehensive and thorough abolition of the death penalty as a long-term target for reform of the death sentence system in the country.
1. As far as the global situation is concerned, abolition of the death penalty is a mainstream and megatrend of development of the international anti-death penalty movement. So far, most of the countries around the world have abolished the death penalty. By the end of 2010, two-thirds of the countries and regions around the world had legally or factually abolished the death penalty. In particular, 96 countries and regions had abolished the death penalty or all crimes; eight countries and regions had abolished the death penalty for ordinary crimes; and 35 countries and regions had factually abolished the death penalty (computed by the criterion that no death penalty had been executed in them over the past 10 years). Namely, the number of countries and regions that had legally or factually abolished the death penalty had reached a total of 139. In such a context, China, in the capacity of a large developing nation that emphasizes the trend of development of the international community, should take steps to meet the international megatred, and make efforts to reform its death sentence system, in striving to reach the target of eventual abolition of the death penalty.
2. As far as the domestic situation is concerned, it is not a reality that there exists no social basis for comprehensive abolition of the death penalty in China. In China, basic public opinions are an important factor influencing reform of the death sentence system in the country. It is no secret that many research results indicate a majority of the Chinese public are supportive of capital punishment. However, there do exist results of surveys revealing that as far as the general attitude is concerned, though the people advocating maintenance of the death penalty account for 90 percent of the respondents in the surveys, only 29.9 percent of them say that they are really supportive of “completely maintaining the death penalty” while 60.1 percent say that they are supportive of “restricting and reducing the use of the death penalty”. When asked whether they will accept substitution of “no mitigation of the sentence, no parole or life imprisonment” for the death penalty, 62.2 percent of the respondents say it is acceptable. Such results suggest that under certain conditions, the Chinese public could accept abolition of the death penalty. I am confident that along with further development of Chinese society and continued enhancement of public awareness about human rights in China, the number of people in China who would accept abolition of the death penalty will keep increasing. Namely, it is not the case that abolition of the death penalty is unacceptable to basic public opinions in Chinese society. China should take comprehensive and thorough abolition of the death penalty as a long-term target for reform of the death sentence system in the country, and should make unremitting efforts in striving to make it a reality.
III. Route for reform of the death sentence system in China
Determination of an orientation and realization of a target will not do without the choice of a route. Realization of the targets for reform of the death sentence system in China definitely requires the choice of a rational route.
(I) Controversy over the choice of a route for reform of the death sentence system in China
As far as the choice of a route for reform of the death sentence system in China is concerned, the criminological circles in China have mainly had three different proposals for it:
1. A first proposal is for adopting a judicial route for reforming the system of the death sentence system. Some of the scholars advocating the adoption of a judicial route propose a total substitution of the death sentence with a reprieve for the death sentence for immediately execution. Meanwhile, there are other scholars who propose that the render of a meritorious service by convicts ? which is a circumstance for leniency prescribed by Chinese law ? be used as an irregular route for restricting the use of death sentences in judicial practice.
2. A second proposal is for adopting a legislative route for reforming the death sentence system in China. For example, there are scholars who believe that the death sentence system in China, in the process of advancement toward modernization, needs to realize an organic integration with localization by sharply reducing the definition of crimes and prohibiting additional definition of new crimes punishable by death in future revision of the Criminal Law; that conditions for reinstituting the death penalty for crimes should be strictly regulated; that the scope of objects punishable with the death penalty should be humanely reduced; that the models for legally prescribed punishment should be redefined in striving to avoid any tendency toward meting out heavy punishment; that the mechanism for reviewing and approving death sentences should be reformed to maintain the Supreme People’s Court’s retrieval of the power to review and approve death sentences; and that the ways of executing capital punishment should be reformed to greatly weaken “killing by justice” and to substitute rationality and humanity for perception and passion.
3. And, a third proposal is for adopting a route for reforming the death sentence system in China through simultaneous progression of both legislation and justice, which is advocated by some scholars including me. According to this proposal, viewed from the perspective of the rule of law, there are but two approaches for reform of the death sentence system ? legislative reform and judicial reform. Reform of legislation on the death penalty will be of a basic and decisive role. Meanwhile, to control and reduce the use of capital punishment through judicature will not only be possible, but will also be necessary. Reform of the death sentence system in China should be carried out through simultaneous progression of both legislation and justice.
It is tenable to say that the aforesaid three proposals are each of emphasis, and are each of advantages and disadvantages. However, speaking from the perspective of effectively promoting reform of the death sentence system in China, I think that it is advisable to adopt the aforesaid third proposal for reforming the death sentence system through simultaneous progression of both legislation and justice.
(II) The route for reforming the death sentence system in China through simultaneous progression of both legislation and justice
As far as the ongoing process of reform of the death sentence system in China is concerned, adoption of the route for reform through simultaneous progression of both legislation and justice is mainly based on considerations in the following two respects:
1. Viewed from the perspective of the relevant practice in the past, simultaneous progression of both legislation and justice is in summarization of successful experience in reforming the death sentence system in China. Over the past more than 10 years, China has always adhered to the path of simultaneous progression of both legislation and justice in reforming the death sentence system. In 1997, the national legislature of China, in light of the status quo ante of the justice of capital punishment in China, not only made further strict the standards for applying capital punishment in the general provisions of the Criminal Law, deleting the provision for permitting the application of capital punishment with a reprieve to minors under the age of 18, but also changed and reduced the application of capital punishment to some crimes in the sub-provisions of the Criminal Law, cutting down the number of crimes punishable by death to 68 from the previous total of 72. In the ensuing more than 10 years, particularly in the past few years, what China has mainly done in this endeavor has been judicial reform of the death sentence system. On December 28, 2006, the Supreme People’s Court promulgated the Decision on Issues Concerning Exclusive Exercise of the Power to Review and Approve Death-Sentence Cases, announcing that the Supreme People’s Court would fully retrieve as of January 1, 2007 the power to review and approve death-sentence cases for its own exclusive exercise, which had been decentralized to provincial-level Higher People’s Courts for separate exercise. On February 8, 2010, the Supreme People’s Court promulgated the Opinions on Implementing the Criminal Justice Policy of Tempering Justice With Mercy. Article 29 of this set of opinions provides: “The application of death sentences shall be brought under strict control in accordance with law, while the standards for judgment in death-sentence cases shall be unified, in order to ensure that capital punishment will be applied only to an extremely small number of convicts guilty of extremely serious crimes.” On June 13, 2010, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice jointly promulgated the Provisions for Issues Concerning Review and Judgment of Evidence in Handling Death-Sentence Cases and the Provisions for Issues Concerning Exclusion of Illegal Evidence in Handling Criminal Cases, making stricter the standards for evidence collection and adoption leading to the application of capital punishment. The adoption of these judicial reform measures has contributed to powerfully promoting general reform of the death-sentence system in China. On the basis of this, the NPC Standing Committee adopted on February 25, 2011 Amendment (VIII) to the Criminal Law, repealing altogether the death penalty for 13 economic and nonviolent crimes, which was not only in summarization and promotion of the judicial reform of the death-sentence system in China, but was also in response and powerful support by legislative reform of the death-sentence system in China to the judicial reform of the death-sentence system in the country. This great development sufficiently indicates that adherence to the route for reforming the deathsentence system through simultaneous progression of both legislation and justice has been proven effective through the test of judicial practice in China.
2. Viewed from the perspective of the relevant theory, adoption of the route for reforming the death-sentence system through simultaneous progression of both legislation and justice is required for making their respective advantages complementary to each other, and for removing or reducing barriers to reform of the death-sentence system, which is manifested mainly in the following two respects:
(1) Legislative reform of the death-sentence system will be able to realize the target of restricting and reducing the use of capital punishment from the source. This is because to make more stringent general standards for applying the death penalty and more generous standards for applying the death penalty with a reprieve, to reduce the number of crimes punishable by death, and to strictly limit by law the number of specifications of capital punishment for specific crimes will obviously result in direct legal effects from reduced application of the death penalty. Meanwhile, progression of legislative reform of the death-sentence system tends to arouse greater concern and win international and domestic affirmation, which will in turn contribute to effectively alleviating international pressure on restricting and reducing the use of capital punishment faced by China presently.
(2) In consideration of the reality that reform of the deathsentence system will be a complicated major project involving a large number of procedures, both the pace and strength of reform of the death-sentence system might often be subject to relatively serious restriction, and progress in legislative reform of the death-sentence system might also be relatively slow. In comparison, judicial reform of the death-sentence system will be able to avoid the many barriers that legislative reform of the system cannot avoid, which will enable more convenient and more swift restriction of the use of capital punishment in China. However, prior to any launch of legislative reform of the deathsentence system, the application of capital punishment should be restricted and reduced through sufficient application of the relevant provisions of the existing Criminal Law of China, and also through application of judicial means.
Yet, as far as the long-term target for reform of the deathsentence system in China is concerned, judicial reform of the death-sentence system will only be a transitional means for realizing it. This is because realization of the targets for reform of the death-sentence system in China will eventually depend on legislative means. Namely, efforts must be made to legislatively promote realization of total abolition of the death penalty.
IV. Steps of development in reform of the death-sentence system in China
As far as steps of development in reform of the death- sentence system in China are concerned, I proposed a plan seven years ago that China gradually abolish the death penalty in three stages, in accordance with the targets for staged development of China in the 21st century set by China’s national leadership organs at the beginning of the 21st century, in consideration of the historical tradition of the death penalty, social psychology and public will in China, and in reference to the successful experience of other countries in reforming their death-sentence systems:
Firstly, China at first gradually abolishes the death penalty for nonviolent crimes by the time that China meets the socioeconomic development target of realizing a well-off society in the country in accordance with planning in the year 2020.
Secondly, through continued development over the next 10 or 20 years, further steps are taken to abolish the death penalty for violent crimes that are not meant to violate the right to life, when conditions are ripe.
And thirdly, the death penalty is totally and thoroughly abolished in China by the year 2050 at the latest around the 100th anniversary of the founding of the People’s Republic of China, when China’s social civilization and progress in the rule of law both develop to a level corresponding to that of the moderately developed countries today.
I still adhere to this basic position up to the present. Therefore, I would like to make further statement of it in the following:
(I) Abolition of the death penalty for nonviolent crimes at first
Judged by the process of sharply restricting and gradually abolishing the death penalty in many countries, abolition of the death penalty for nonviolent crimes at first proves to be a successful approach, which is also in conformity with the basic law of development of both society and the rule of law. As far as China’s process of abolishing the death penalty in the country is concerned, gradual and timely abolition of the death penalty for nonviolent crimes should be taken as a breakthrough point and an entry point for it. Gradual abolition of the death penalty for nonviolent crimes in China is not only an inevitable requirement for China to actively respond to the international megatrend of restricting and abolishing the death penalty, but is also, more significantly, in specific embodiment of China’s existing criminal justice policy on the death penalty. It is not only required for observing the principle of necessity and the principle of evaluation for rational configuration of the death penalty, but is also determined by the many attributes of nonviolent crimes. Definitely, China’s ongoing efforts to abolish the death penalty for nonviolent crimes cannot be accomplished overnight. Rather, they should be made in a systematic and staged way:
1. The death penalty should be legislatively and totally abolished as early as possible for nonviolent crimes of the property rights violation type that are meant to violate lawful personal interests, and also for nonviolent crimes of the lawful public interests violation type without specific victims.
2. For nonviolent crimes of the endangering public security type that are meant to violate lawful public interests, and for nonviolent crimes of the endangering State security type, the endangering national defense interests type and the servicemen’s breach of duty type that are meant to violate lawful State interests, the use of the death penalty for them should be gradually restricted and reduced in order to realize eventual repeal of all the legal clauses for capital punishment for them.
3. For serious crime of graft or bribe taking and other jobrelated crimes of the embezzlement type, and for serious drug crimes, the use of the death penalty for them should be strictly restricted and reduced primarily by raising the threshold for meting out capital punishment for them, and, in accordance with the situation of social development and human rights protection, a timetable for abolishing the death penalty for them should be considered, in striving to attain the goal of abolishing the death penalty for them by the year 2020, or at least limiting the use of capital punishment for them to an extremely small number of circumstances.
(II) Continuation of efforts to abolish the death penalty for non-lethal violent crimes
As violent crimes are characterized by imposing powerful strikes or coercive acts on other persons directly or by means of natural or physical forces, they are meant to cause harm to the victims ranging from bodily injury to death. For violent crimes, they can be divided into ordinary violent crimes and wartime violent crimes by the criterion whether the specific time of committing the crimes is a time of war or not. Likewise, ordinary violent crimes can be divided into lethal ordinarily violent crimes and non-lethal ordinary violent crimes by the criterion whether they have caused the death of the victim as a result. For lethal ordinary violent crimes, they can, in accordance with the specific form of guilt held by the doer toward the consequence of death, be divided into intentional lethal ordinary violent crimes and negligent lethal ordinary violent crimes. On the basis of the aforesaid categorization, I think that the steps China will adopt in future legislation on abolition of the death penalty for non-lethal ordinary violent crimes should be gradually taken separately in accordance with the following circumstances:
1. For some ordinary violent crimes with a relatively low extent of violence that normally do not endanger the life of the victim, the death penalty for them can be abolished at first along with the process of abolishing capital punishment for some nonviolent crimes. For ordinary violent crimes in this category, including the crime of abduction and trafficking of women and children and the crime of forced prostitution, as they are generally of a relatively low extent of harmfulness to society, the death penalty for them should definitely be abolished outright when conditions are ripe.
2. For some ordinary violent crimes that are intentionally non-lethal at first, but that are eventually lethal as a result of negligence, the death penalty for them should also be abolished at first at an appropriate time. The crimes in this category include the crime of causing death as a result of negligence in raping, the crime of causing death as a result of negligence in robbery, the crime of causing death in intentional injury and the crime of causing death as a result of negligence in abduction. In consideration of the reality that the doer is totally of a mental attitude of negligence toward the death of the victim, with a relatively low extent of subjective culpability of the mind, the death penalty for them should be abolished at an appropriate time yet to be chosen.
3. For a majority of ordinary violent crimes that originally include intentionally lethal acts and consequences, such as intentional causing of death in committing the crime of robbery, intentional causing of death in committing the crime of raping, intentional causing of death in committing the crime of abduction and intentional causing of death in committing the crime of endangering public security, there can be converted legal provisions for punishing them under charges of intentional homicide through modification with legislative techniques, thus to repeal through the application of legislative techniques the many legal provisions for capital punishment for criminal acts of homicide that is not purely intentional.
(III) Eventual abolition of the death penalty for lethal violent crimes and wartime violent crimes
China’s existing criminal law has provisions for wartime violent crimes punishable by death, mainly including the crime of obstruction in the performance of military duties, the crime of cruelly injuring or killing residents during wartime, and the crime of looting property from residents during wartime. As the provisions for wartime violent crimes totally belong to those nominally existing that are in reserve but that are never used in practice during peacetime, the crime practically punishable by death during peacetime to this effect has been the crime of intentional homicide only. In my opinion, after China’s criminal legislation basically realizes abolition of the death penalty for ordinary violent crimes, abolition of the death penalty for the crime of intentional homicide and wartime violent crimes should also be put on the agenda on the basis of social development for some years to come. Definitely, in this process, China can also initially abolish the death penalty for non-lethal crimes among wartime violent crimes in keeping with the extent of social development and promotion of the rule of law in the country. On the basis of this, China can proceed to consider thorough and total abolition of the death penalty for all crimes. Yet, eventual realization of the target of abolishing the death penalty for all crimes in China should be in compatibility with the extent of social development in the country. It is believable that by the time China basically realizes modernization and builds itself into a “rich, powerful, democratic and civilized socialist country” in the middle of the 21st century, the death penalty ? which has been universally discarded by the contemporary human civilization and rule of law ? will eventually be abolished in China because of losing the basis for its existence.
In short, reform of the death-sentence system in China will inevitably be a relatively long process. However, this process will not be indefinitely long, and its general trend should not be changed. In reforming its death-sentence system, China will unswervingly take the path of restricting, reducing and eventually abolishing the use of capital punishment for all crimes in the country.
V. Tactics for reform of the death-sentence system in China
In efforts to maintain the general trend of reform of the death-sentence system in China, and gradually realize both the short-term and long-term targets for reform of the deathsentence system in the country, it is necessary to actively seek specific and wise measures for reforming the death-sentence system in the country. As far as specific tactics in this endeavor are concerned, I think that China needs to attach importance to promoting reform of its death-sentence system by exerting efforts in the following three respects in future:
(I) Norms in the general provisions of the Criminal Law: Combination of improvement of the standards for applying the death penalty with restriction of the scope of objects subject to capital punishment
1. Further improvement of the standards for applying the death penalty:
Clause 1 in Article 48 of the existing Criminal Law revised in 1997 provides that the death penalty shall be applicable only to convicts guilty of “extremely serious crimes”. Although this standard is somewhat more progressive than the corresponding one prescribed by the 1979 Criminal Law, this provision of the existing Criminal Law of China for standards governing the application of the death penalty is still problematic in the following two respects when it is rationally reviewed:
(1) Ambiguity of the intrinsic meaning of the term of“extremely serious crimes” in the capacity of a criterion:
As far as the intrinsic meaning of the term of “extremely serious crimes” is concerned, although the term of “extremely serious crimes” is usually construed in both criminological theory and judicial practice as a unity of extreme seriousness of the nature of crimes, extreme seriousness of the circumstances of crimes, extreme seriousness of the subjective culpability of the mind of criminals and extreme seriousness of the personal dangerousness of criminals, there is still a lack of concrete standards for judgment of the specific scope of acts covered by this term in the capacity of a criterion. Therefore, the intrinsic meaning of the term of “extremely serious crimes” is obviously of uncertainties.
(2) Discordance with international human rights conventions:
As far as its intrinsic meaning is concerned, the provision of China’s criminal law for standards governing the application of capital punishment cannot be in simple equivalence to the term of “the most serious crimes” established as the standard for applying the death penalty by the United Nations International Covenant on Civil and Political Rights. United Nations Human Rights Resolution 2005/59 adopted on April 20, 2005 urges all States that still maintain the death penalty “to ensure also that the death penalty is not imposed for nonviolent acts such as financial crimes, religious practice or expression of conscience and sexual relations between consenting adults nor as a mandatory sentence.” The 6th quinquennium report on the death penalty issued by the secretary-general of the United Nations Economic and Social Council in 1999 listed crimes that do not belong to “the most serious crimes”, mainly including drug crimes, the crime of raping, the crime of abduction, economic crimes, job-related crimes and religious crimes. Obviously, the scope of “the most serious crimes” referred to by this report is much smaller than the scope of standards governing the application of capital punishment prescribed by the existing Criminal Law of China. There are theorists who believe that uncertainty of standards governing the application of capital punishment prescribed by Chinese law and their obvious difference from the requirement of the relevant international human rights conventions have contributed to giving rise to irrational configuration of the death penalty. This point of view is reasonable. In view of this, I think that China should, in its future criminal legislation, manage to revise the general standard governing the application of capital punishment as guilt of “the most serious crimes”, and proceed to specifically define through legislative interpretation or judicial interpretation the necessary and rational types of “the most serious crimes” and circumstances of “the most serious crimes”.
2. Further restriction of the scope of objects subject to the application of the death penalty:
Both the 1997 Criminal Law and Amendment (VIII) to the Criminal Law of China strictly limit the scope of application of the death penalty in three respects, specifically providing that the death penalty shall not be applied to persons who have not reached the age of 18 at the time of committing the relevant crime, women who have become pregnant at the time of trial, and elderly people who have reached the age of 75 though they are found guilty of causing the deaths of other persons by means that are not extraordinarily cruel. However, in comparison with the requirement of the relevant international legal documents, China still needs to further strictly limit the scope of objects subject to the application of capital punishment.
(1) The scope of exemption of the death penalty for elderly people should be further enlarged:
Although Amendment (VIII) to the Criminal Law provides for the system of exemption of elderly people from capital punishment for their crimes, it prescribes two restrictions: Firstly, the convicts have reached the age of 75 at the time of trial. And secondly, the circumstances of their crimes must not belong to those of causing death of people by using extraordinarily cruel means. In my opinion, these restrictions by Amendment (VIII) to the Criminal Law on exemption of elderly people from capital punishment are too stringent and unnecessary. Therefore, I think it is necessary to further enlarge the scope of exemption of elderly people from capital punishment for their crimes: Firstly, the threshold for exempting elderly people from the death penalty for their crimes should be lowered to “having reached the age of 70” or even younger. In reality, in light of the average lifespan of elderly people in China, changes of the mental ability of elderly people in the country, international standards for leniency in meting out criminal punishment for elderly people, etc, the threshold of“having reached the age of 75 at the time of trial” prescribed by Chinese law for exempting elderly people from capital punishment for their crimes is obviously too high. Therefore, the threshold for exempting elderly people from the death penalty for their crimes should at least be lowered to that of “having reached the age of 70 at the time of trial”. And secondly, the exceptional provisions for exempting elderly people from the death penalty for their crimes should be repealed. It is a common approach universally adopted by the international community to unexceptionally exempt elderly people from the death penalty for their crimes, which has also been prescribed and advocated by many international conventions. Therefore, in consideration of the characteristics of criminal responsibility assumable by elderly people for their crimes, particularly in consideration of the extremely serious punitive nature of capital punishment and the requirement for humane treatment of elderly people guilty of crimes, I think that China in future should also unexceptionally exempt elderly people from the death penalty for their crimes.
(2) Efforts should be made to gradually exclude special groups of people, such as the mothers of newborn babies, the mentally disabled and people with psychological disorders, from the scope of application of the death penalty. Not to apply the death penalty to the mothers of newborn babies, the mentally disabled and people with psychological disorders is a requirement of the relevant documents of the United Nations. Article 3 of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty approved by the United Nations Economic and Social Council provides: “… nor shall the death sentence be carried out on pregnant women, or on new mothers, or on persons who have become insane.”Meanwhile, Clause (d) in Article 1 of United Nations Economic and Social Council’s Resolution 1989/64 ? Implementation of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty ? provides: “Eliminating the death penalty for persons suffering from mental retardation or extremely limited mental competence, whether at the stage of sentence or execution.” However, except those for pregnant women and mental health patients, Chinese law does not have specific provisions for prohibiting the application of capital punishment for the mothers of newborn babies, the mentally disabled and people with psychological disorders. In light of the requirement of the relevant international documents and in reference to the successful experience of other countries in legislation to this effect, I think that China should, in legislation in future, manage to include special groups of people, such as the mothers of newborn babies, the mentally disabled and people with psychological disorders, into the scope of probation of the use of capital punishment for them.
(II) Norms of sub-provisions of the Criminal Law: Giving priority to reduction on scale of crimes punishable by death
Although Amendment (VIII) to the Criminal Law abolishes the death penalty for 13 nonviolent crimes, the Criminal Law of China still prescribes capital punishment for 54 crimes, including more than 30 nonviolent crimes, which still ranks among the highest for the countries and regions around the world that still maintain the death penalty. In future, China still should strive for reduction on scale of crimes punishable by death on a gradual basis. In particular, China should presently give priority to reduction on scale of economic and nonviolent crimes punishable by death. In the process of formulating Amendment(VIII) to the Criminal Law, the Supreme People’s Court and other departments as well as some jurisprudential experts and scholars proposed that capital punishment be abolished for many other crimes similar to the 13 crimes. In its scheme for Amendment(VIII) to the Criminal Law, the Legislative Affairs Commission of the NPC Standing Committee also proposed that “studies be continued on issues concerning possible abolition of the death penalty for the crime of transporting narcotic drugs, the crime of fund-raising fraud, the crime of organizing prostitution and the crime of smuggling counterfeit currencies.” Although such proposals and schemes were eventually not adopted by Amendment (VIII) to the Criminal Law, it is highly necessary for China to abolish as early as possible the death penalty for the few crimes in this category, particularly the crime of fund-raising fraud and the crime of organizing prostitution. In reality, all these crimes belong to nonviolent crimes. For these nonviolent crimes, China in future should not only manage to restrict the use of capital punishment for them, but should also consider legislatively abolish the death penalty for them as early as possible.
(III) Combination between legislation and judicature: Substitution of imprisonment for capital punishment
The measure of substitution for the death penalty is a measure for adopting other forms of criminal punishment with basically the same or similar severity on the basis of the requirement of the principle of suiting penalty to crime and criminal responsibility, at a time of not applying the death penalty for some particular crimes. The measure of substitution for the death penalty makes it possible to legislatively realize reduction of the crimes punishable by death and even full-scale abolition of the death penalty in future, because it is of a severity of punishment similar to that of the death penalty. Presently, in light of the phenomenon of “excessive severity of the death penalty and excessive leniency of imprisonment” in the execution of criminal punishment in the country, China has adopted the approach of appropriately making imprisonment severer and rationally improving the structure of criminal punishment, creating favorable conditions for further reform of the system of capital punishment in the country. In future, China should legislatively further improve the criminal punishment forms and systems prescribed by the existing Criminal Law, including life imprisonment, fix-term imprisonment and other forms of criminal punishment as well as combined punishment for plural crimes, reduction of criminal punishment, parole and other criminal punishment systems. In particular, China should manage to reform the system of longterm criminal punishment against liberty represented by life imprisonment, and make it substitutional for the death penalty in meting out criminal punishment, in order to meet the requirement for sharp reduction of the number of crimes punishable by death and even full-scale abolition of the death penalty in the country on a gradual basis.
Besides, in my opinion, China should also attach importance to the notion of strengthening human rights protection in reform of the death penalty system and additionally establish the system of remission of the death penalty, to improve the way of remedies against the use of capital punishment; declare the quantity of death sentences and executions, to strengthen judicial supervision; and actively promote the use of injection in enforcing capital punishment, in lowering in a maximum way the extent of painfulness of death-sentence convicts in the execution of capital punishment for them, and foster tolerance and kind feelings of the public.
VI. Conclusion
Along with sound development of both the social economy and the rule of law in China, reform of the death penalty sentence in China will inevitably advance toward the direction of restricting and reducing the use of capital punishment to eventually meet the target of abolishing the death penalty in the country. Under such a situation, it is advisable for China to adopt the route of simultaneous progression of both legislative reform and judicial reform on the basis of the initial successful experience already accumulated in reform of the death sentence system in the country, further strictly limit the scope of objects subject to the use of capital punishment, strive for gradual reduction on scale of the number of crimes punishable by death, actively give play to the role of long-term imprisonment in substitution for the death penalty, and take steps to abolish the death penalty in a gradual and staged way, thus to promote social civilization and human rights progress in China. In the process of reforming the death-sentence system in the country, China should, by proceeding from the national realities, public opinions and the requirement for socioeconomic development in the country, in consideration of the development trend and tendencies of the international community, and in reference to the advanced experience of countries with developed rule of law and with a developed human rights system in restricting and abolishing capital punishment, unswervingly and steadily advance toward meeting the targets of reform in this endeavor. We are deeply aware of the long-term nature and arduousness of the drive to reform the death-sentence system in China. Meanwhile, we have firm confidence in the broad prospects for reform of the death-sentence system in China. To sum up in conclusion, we should unswervingly and actively maintain and promote reform of the death-sentence system in China.