China Rethinks the Death Penalty

Source: The New York Times (8 July 2014)

http://www.nytimes.com/2014/07/09/opinion/china-rethinks-the-death-penalty.html?action=click&contentCollection=Opinion&module=RelatedCoverage&region=Marginalia&pgtype=article&_r=0

Last month, China's Supreme People's Court overturned the death sentence of a woman who brutally killed and dismembered her husband. The landmark decision to send the high-profile case back to a provincial court was yet another sign that the country's embrace of the death penalty is loosening.

China is believed to execute more people each year than the rest of the world combined, and 43-year-old Li Yan initially seemed a likely candidate for death row. In 2010, she beat her husband to death with an air gun, chopped him into pieces and boiled his body parts. But police photos and a medical report backed up Ms. Li's claims that her husband had abused her — stubbing out cigarettes on her body, banging her head against the wall and threatening her with the air gun. The Supreme Court determined, rightly, that these circumstances justified a retrial. 

China is putting the brakes on the death penalty. According to Liu Renwen, a legal scholar at the Chinese Academy of Social Sciences, between 2007 and 2011 the annual number of executions in China fell by half. Many violent offenders are now given so-called suspended death sentences, which are invariably downgraded later to life in prison. Such restraint has drawn broad public support.

How does a country that harvests and allegedly sells the organs of executed prisoners begin to lean toward more humane alternatives to the death penalty?

Like most of the world, China allowed the death penalty for much of its history, along with an array of other harsh punishments that included at various times servitude, tattooing and castration. But beginning in the Han Dynasty (206 B.C.-220 A.D.), Confucian scholars emphasized a humanitarian approach to justice. The purpose of punishment, they argued, was to morally rehabilitate offenders and restore social harmony, not to secure revenge.

One crucial precept was chuli ruxing — that only when gentler means fail should punishment be used. While brutal executions certainly occurred, for centuries emperors regularly intervened to issue acts of da she, or great mercy, by pardoning offenders entirely. Some went further. In the 8th century, Emperor Xuanzong briefly abolished the death penalty, making China one of the few feudal countries to do so.

By late imperial times, Chinese execution practices were moderate compared with those in Europe. During the Qing dynasty (1644-1911), imperial edicts suggest that China largely avoided the carnival-like killings then common in France, Germany and Britain. Public executions were solemn, orderly events, with guards discouraging rowdy spectators.

That changed drastically when Mao Zedong came to power in 1949. Using the death penalty as a political tool, he introduced bloody punitive campaigns in which suspects were rounded up en masse and summarily killed. From 1950 to 1953, during the campaign to suppress counterrevolutionaries, the regime executed more than 710,000 political foes. State-condoned killings spiked again during the Cultural Revolution (1966-1976), and later during the "strike hard" campaigns initiated under Deng Xiaoping.

Rather than turn away onlookers, Mao encouraged them. Ignoring the humanitarian threads in Chinese culture, he avowed in 1951 that executions often "assuage the people's anger." Leaders who followed him made similar arguments.

Today, executions in China more often stoke anger than quell it. A 2007-2008 survey of nearly 4,500 people in three provinces funded by the European Commission found that only 58 percent supported the death penalty — compared with nearly 60 percent in the United States. Perhaps most revealing, respondents to the survey were aware of the death penalty's uneven implementation. Sixty-nine percent believed, accurately, that poor offenders were more likely to be put to death than wealthy ones, while 60 percent thought that innocent people might be wrongfully convicted. Indeed, the Chinese press has been trumpeting wrongful convictions — such as that of a Henan Province man convicted of murder whose supposed victim turned up alive in 2010.

Other surveys suggest that support for the death penalty is higher among Chinese legal and political elites than the general public. Still, these groups have heeded calls from the people for change. Outcry over wrongful convictions has challenged the legitimacy of China's judiciary at the very moment that the country has been trying to project an image of having a more modern and just legal system.

Interviews conducted by criminologists suggest that international criticism has had an impact as well. In 1977, a mere 16 countries had abolished the death penalty; today 140 countries — over two-thirds of the world's nations — have done so in law or practice. Chinese legal scholars and judges are fully aware of their country's role as the outlier.

In 2006 a group of reform-minded justices began formally advocating moderation in punishment. Led by Xiao Yang, then the Supreme People's Court chief justice, they pushed the maxim "kill fewer, kill cautiously." The following year, the high court began reviewing all capital cases, creating a strong disincentive for lower courts to hand out death sentences. The substitution in many cases of suspended death sentences — which in practice means offenders spend about 25 years in prison — was the result.

The shift met resistance from hard-liners who warned of a spike in crime. But pandemonium did not ensue. Some criminologists now argue that the harsh campaigns of the past in fact sparked violent crime, by making criminals reluctant to leave witnesses behind.

Chinese police continue to carry out punitive campaigns. But arrests made during such operations no longer automatically mean death. Even Chen Jun, a migrant worker convicted in a prominent 2008 case of stabbing the Canadian model Diana O'Brien more than 20 times, was given a suspended death sentence. The stabbing happened a mere month before the Beijing Olympics, as the police were cracking down on crimes big and small. Interviews I conducted over the past year with former police investigators, Mr. Chen's family and Ms. O'Brien's mother reveal that, in his case, the authorities were eager to show restraint. Instead of retributive justice, his trial suggested an emphasis on reparation and societal harmony.

China's penal practices are far from enlightened. Even if Mr. Liu's assertion of halving executions is true, China still executes about 3,000 people a year, according to the Dui Hua Foundation, compared with 39 in the United States in 2013.

But even a preliminary drop in executions is encouraging, allowing people like Li Yan a real shot at justice. Chinese judges and policy makers should continue to heed public calls for restraint. Perhaps, with time, they might even return to China's benevolent roots. 

Mara Hvistendahl is a founding member of the writers' cooperative Deca and the author of "And The City Swallowed Them."