Wednesday, 29 April 2015

Deciding Death: How Chinese Judges Review Capital Punishment Cases

Source: Dui Hua (18 November 2014)

In the eastern part of Beijing, not far from the city’s main railway station, sits an unmarked, multi-storey office building whose importance can only be discerned by the presence of armed police guards posted at its entrance. This is where the five criminal divisions of China’s Supreme People’s Court (SPC) are located, the place where the fates of the country’s death-row defendants are ultimately determined.

A recent feature article in Guangzhou’s Southern Weekly newspaper has shed new light on how the more than 300 court personnel who work in this building handle the thousands of capital punishment cases sent for final review each year. Below, we summarize the article’s descriptions of the process in order to enable even more people to understand the way that these life-and-death decisions are made.
After the appeals process has run its course and a decision involving the death penalty takes effect, the case file is sent to the SPC for mandatory review. The case is first assigned a case number, and then all of the relevant case files are delivered to one of the court’s five divisions according to the geographic origin of the case or, in some cases, the type of crime involved. 

Unlike the other four divisions, which are larger and handle many more cases, the court’s second criminal division is dedicated to handling review of some of the most sensitive cases: those involving crimes by government or party officials; cases involving foreigners or defendants from Hong Kong, Macau, or Taiwan; crimes under the category of “endangering state security”; and cases involving defendants from Xinjiang.

Shaanxi, Gansu, Qinghai, Ningxia, Shandong, Zhejiang, Anhui, Fujian
Crimes against the rights of women and children, the environment, intellectual property
Nationwide, Xinjiang
Crimes involving people from Hong Kong, Taiwan, Macau, and foreign countries; occupational crimes; crimes involving members of the armed forces; cases involving crimes of endangering state security and politically sensitive cases; all Xinjiang cases
Yunnan, Guizhou, Sichuan, Chongqing, Tibet, Shanghai, Jiangsu, Jiangxi
Organized crime
Heilongjiang, Jilin, Hebei, Guangdong, Guangxi, Hainan
Major accident liability crimes
Beijing, Tianjian, Liaoning, Shandong, Inner Mongolia, Henan, Hubei, Hunan
Drug crime
Source: Dui Hua, Southern Weekly

Within each division, cases are assigned first to quasi-administrative units divided either by geography or case type. These units then assign each case to a panel of three judges, one of whom is designated as the principal case manager. This judge will take responsibility for reviewing the case files and liaising with lower courts or law-enforcement agencies over any questions that might arise.

Sometimes, review of the case files uncovers very basic errors that could have an impact either on conviction or sentencing. In many instances, additional details or investigation will be required, and sometimes the SPC judge handling the case will have to go personally to the provinces to conduct investigations. According to one SPC official, additional investigation was required in 39 percent of the cases sent to the SPC for review in 2013.

Under new provisions introduced into the Criminal Procedure Law in 2012, judges are also required to interview defendants before deciding whether or not to confirm a death sentence. If the case is relatively straightforward, these interviews may be conducted remotely via video feed. However, if more problems are uncovered in the case file, then the judge handling the case will typically go to conduct the interview in person. One judge told Southern Weekly that, in the interest of reducing the burden on local courts, SPC judges try to minimize travel to the provinces and attempt to handle multiple cases on a single trip as much as possible.

The principal judge will then write a detailed report covering the results of his or her review of the case, summarizing any problems with the evidence or other issues that could have an impact on conviction or sentencing. This report is then circulated along with the case file to the other two members of the judicial panel responsible for the case, each of whom conduct their own review and write their own report.

Then, after each of the three judges has reviewed the case independently, they meet to discuss the case as a group in the presence of a court clerk. After coming to a decision, the panel then reports to the responsible division head and SPC vice president. If the decision is to execute the death penalty, the case then goes to the SPC president for his signature.

If court officials identify a problem with the panel’s decision or the panel is unable to reach consensus on how to decide, the case might be sent to the division’s council of chief judges for additional discussion. If this does not lead to a decision, the case might be sent for discussion by the SPC adjudication committee or the special committee for criminal adjudication. The Southern Weekly article makes pains to note that these bodies play only an advisory role and that final decision-making power rests solely with the three-judge panel.

As they review death penalty cases, judges pay particular attention to issues of evidence and penal policy. In recent years, the SPC has introduced and refined measures for excluding evidence that has been obtained illegally, and the court’s stricter line on evidence is one of the reasons why China’s highest court rejects roughly 10 percent of death penalty cases each year.

The impact of penal policy is much more fluid and hard to predict. Over time, the court has settled on a number of general principles designed to reduce use of the death penalty. For example, in cases involving the death of a single victim the death penalty is typically waived if the defendant surrenders or if the case involves a dispute among family members or neighbors. But putting these more lenient policies into effect often requires overcoming resistance from a victim’s family members. In fact, one reason why the process of reviewing death penalties is often delayed is because efforts are underway to use court mediation to “work on” these family members and obtain their agreement for more lenient punishment.

For example, the article reveals that in the case of Li Yan (李彦), whose sentence to death for murdering her abusive husband caused a national sensation in 2013, the SPC’s adjudication committee decided relatively early on that the circumstances of the case did not require her immediate execution. The victim’s family initially refused to accept anything less that Li’s execution, even staging protests outside local court buildings. But rather than give in to such pressure, the court delayed its decision until emotions died down and the victim’s relatives were able to accept the decision.

As the Supreme People’s Court Monitor blog recently pointed out, one potentially groundbreaking reform being considered would ensure that all defendants in death penalty cases are represented by a lawyer during the death penalty review process. The Southern Weekly article reveals that the SPC is in the process of drafting provisions entitled “Regulations on Considering the Views of Defense Lawyers in Death Penalty Review Cases.” These follow on amendments to the Criminal Procedure Law in 2012 aimed at strengthening legal representation during the death penalty review process that have not yet fully translated into a right to legal defense for capital defendants. Ensuring that all defendants in cases involving capital punishment have legal representation throughout the criminal process, regardless of economic means, would be another important step toward strengthening rights protections in the criminal process in China.

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