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Not everyone in China is enthused by the constant parade of criminals to the execution ground that has characterized the government's periodic anti-crime campaigns. A significant number of legal scholars have argued against the continuous expansion in the scope and use of the death penalty, writes C. Howie, and have even questioned its deterrent effect.

"If you cut off a head by mistake, there is no way to rectify the error, even if you want to." -- Mao Zedong, 1956

Over 1,000 people have been executed in China since the launch of the nationwide "Strike Hard" anti-crime campaign on April 28, 1996. On a daily basis, the state-run media has publicized arrests, executions and mass sentencing rallies under headlines proclaiming: "Swift Investigation and Solutions, Punish Without Mercy: Lightning Flashes and Thunder Rolls" and "The Gun of Justice Sounds, 19 Criminals Eat Bullets." Local leaders, police and the judiciary have been exhorted to adhere to the dictum of "severe and speedy punishment" and the goals of "quick approval of arrest, quick prosecution and quick trials."

Set against such frenzied rhetoric, the voices of three Chinese legal experts, who warned in a June 13 article in Legal Daily of the danger of summary justice and appealed to the authorities not to "bypass the law," appeared marginal and lonely. In fact, the use of the death penalty has been the subject of consistent criticism in legal journals and books published in China throughout the 1990s. Such articles provide glimpses of a wide-ranging and continuing debate in legal circles over the reform of the Criminal Code and the Criminal Procedure Law. Interestingly, while several of the articles dismiss the arguments of international human rights monitors on the death penalty as "promoting bourgeois human rights values and ideas," the conclusions they reach are often similar.

Debate and criticism has focussed on topics including the constant expansion of the list of crimes punishable by execution and the anomalies this has created in legally-prescribed punishments. In particular, the increasing use of the death penalty for economic crimes has been widely challenged. There has also been criticism of the lack of legal safeguards and the bypassing of established procedure, which leave defendants vulnerable to abuse and increase the likelihood of miscarriages of justice. The resort to periodic crackdowns like the current campaign, with executions on a massive scale, has also been criticized for subjecting an immature criminal justice system to pressures it is ill-equipped to withstand. Commentators have also questioned whether the leadership's stated goal of "stability" is really served by this destabilizing judicial roller-coaster.

Figures on death sentences and executions continue to be classified state secrets in China, and no scientific studies have been conducted on the deterrent effect of the death penalty. There is a consensus on the need for such research. Opinions vary widely on the issue, but some commentators argue that the death penalty has no value as a deterrent, while others question whether the public's well-founded fear of crime is best addressed by the increasing reliance on the "ultimate penalty."

While few of the commentators advocate the immediate abolition of the death penalty in China, all support strict control of its use, reduction of its scope and eventual abolition when economic, political and social "conditions are right." "It is a fallacy to say the death penalty is absolutely necessary," writes one.

Guiding principles articulated by Mao Zedong are frequently cited in support of restrictions on the use of the death penalty, particularly his statement: "We should only kill a few, and in all cases in which there is a choice whether or not to execute, we should not execute." Many believe that this principle has been abandoned since the mid-1980s and most criticism is directed at the ever-increasing scope and use of capital punishment.

Under the 1980 Criminal Code, "the death penalty is only to be applied to criminal elements who commit the most heinous crimes" and 28 crimes are listed as punishable by death. Since then the list has increased to 70, the highest in the world. This is also over 35 percent of all criminal offenses, double the proportion originally established in the Criminal Code. Many of the additional capital crimes are non-violent or economic crimes. For example, in 1995 serious value-added tax fraud and bogus insurance claims were added to the list of capital offenses. "Reducing the provisions in law for use of the death penalty," wrote one scholar, "would reflect the democratization of our country's socialist legal system and demonstrate its cautious approach to the use of the death penalty."

Lack of definition or clarity in what constitutes a capital crime is also a growing concern. For example, an NPC Standing Committee Decision adopted during the first "Strike Hard" campaign in 1983 provided that courts could sentence offenders to death under the catch-all rubric of "other serious endangerment of public security," which is clearly open to arbitrary interpretation. Scholars have condemned as an "abuse of the death penalty" executions during previous crackdowns for non-capital offenses or for crimes which did not cause "serious consequences," such as repeated petty theft. It is striking that such executions have also been carried out during the current crackdown, and that top officials, such as the president of the Beijing Higher People's Court, have advocated executions in this kind of case, arguing that such death sentences are consistent with the 1983 Decision.

The vague definition of other crimes which could be subject to the death penalty, and the potential for arbitrary sentencing, was demonstrated in a "major hooligan case" cited in one article. Two men from Yueyang City, Hunan Province, were executed and eight others sentenced to prison terms up to life for their part in stripping and verbally humiliating a woman in the presence of many people in September 1990. The local court believed this constituted "hooliganism where the consequences are extremely serious," for which the death penalty could be applied. The severity of the sentences reportedly caused some consternation in the locality. While the author of the article also questions the outcome, he concludes: "For those who are illiterate in the law, who have the potential to commit murder because they do not know the law, the death penalty is the best textbook for them to use in studying the law, so as to avoid ending up on death row."

While the majority of scholars whose work was surveyed for this article believe that China needs to retain the death penalty, at least for now, there is no consensus on the deterrent or "restraining" effect upon which arguments for retention are generally premised.

"The death penalty has a unique role which no other punishment can replace" since those so punished can never reoffend, states one commentator. Another argues that it is a necessary tool in an under-developed economy undergoing rapid change, as a weapon against the "enemies" of the socialist system. Some scholars state that capital punishment is qualitatively different in socialist China as compared to capitalist countries, since instead of being the violent weapon the capitalist class uses against the proletariat to protect its private property, it is used by the working class against a minority of enemies and serious criminals.

It is interesting to note that these commentators do not promote an "educational" deterrent effect for the use of the death penalty in economic, largely white-collar crimes. On the contrary, it is in relation to such types of offenses that they challenge deterrence arguments with the most conviction. Although this point is not stated in the articles, the arguments presented in such challenges seem equally valid for the whole range of capital crimes:

"The death penalty is not a miracle cure for economic and financial crimes. Since the introduction of the death penalty for certain economic crimes, there has been no reversal of the spiralling trend of economic crime.... Relying on the death penalty is no way to curb these crimes.... primarily because economic crimes emerge from economic, political, legal and other factors. Elements such as weaknesses in state policy, chaos in economic management, corruption in political organs, the interference of the 'contacts network' in the administration, weakness of social supervision and the inadequacies of the criminal law all play their part."

And from another angle: "The deterrent effect is short-lived, the feeling of terror brought to bear on prospective criminals gradually fades as time progresses and the only way of sustaining it is to carry out executions at regular intervals which is really not acceptable in a civilized society. There is also the fact that the deterrent effect of the death penalty is reduced by the frequency of executions."

The ambivalence about the deterrent effect of the death penalty is most clearly articulated by Wang Zuofu of China People's University: "Our country has carried out the 'Strike Hard' struggle for 10 years, but still the number of capital crimes is ever increasing, there has been no fundamental improvement in social order and the case rate for some serious crimes is ever rising. Such facts are sufficient to demonstrate that increasing the use of the death penalty is of limited utility. This being the case, should we not change our point of view and look for other more effective ways of preventing crime? Furthermore, the side-effects of excessive use of the death penalty should not be underestimated."

Many scholars also believe that neither "deterrence" nor "justice" is served by current practices. "A punishment imposed as a deterrent should be the minimum needed to deter the crime," one reminds. They state that for some violent crimes punishable by death, the standards used to determine whether capital punishment is applied have fallen to such a low level that, contrary to the "guiding principles," it is the majority rather than the minority who are now executed.

Alarm is also expressed at the growing proportion of younger people who are sentenced to death. Scholars claim that in the past few years, over 50 percent of those sentenced to death have been below 25, which "goes against the principle of mitigated or lesser punishment, education, rehabilitation and reform of young criminals." Moreover, many of these were first-time offenders who should be classified as belonging to the category "in which there is a choice" not to execute.

Such concerns lead to calls for specific definitions to be established in law on the question of in what circumstances "heavier" or "mitigated" punishments should be applied (rather than leaving this to the discretion of local courts). Other scholars insist that the highest judicial organs should define what "where the consequences are serious" means and set precise stipulations in law to clarify when the death sentence may be imposed for any crime.

Where such baselines have already been set, however, there is great dissatisfaction with the result. At a conference on criminal punishment in the mid-1990s, a young researcher reportedly made a profound impact when he pointed out that dogs were currently on sale in Beijing at prices higher than the 20,000-30,000 yuan level stipulated as the lower limit for applying a death sentence for the crime of theft. Others have questioned the discrepancy between this sum and the 50,000 yuan baseline for bribery and corruption, which they characterize as "theft by another name." Consternation was provoked by the criterion of "one skin" set in 1987 for the imposition of the death penalty in the crime of killing pandas or trafficking in or smuggling their skins.

It will be interesting to see what impact, if any, these arguments have on the revisions to the Criminal Code, due to be finalized by next year.

Over the past few years, a number of miscarriages of justice which have resulted in wrongful executions have been reported in the Chinese media. Legal scholars acknowledge that such "mistakes" are not unusual, and cite many weaknesses in legal procedures which facilitate their occurrence. Some have been partially addressed in welcome revisions to the Criminal Procedure Law (CPL) which come into effect on January 1, 1997.

Certain legal experts claim that inappropriate courts are trying serious and complex cases. They report that "against the spirit of the law," some basic level people's courts have gone beyond the limits of their jurisdiction, trying cases which should be tried in the first instance by intermediate courts because they are liable for the harshest penalties. Intermediate courts have also taken the initiative in passing death penalty cases down to the basic level courts for first trials. This is permitted under Article 18 of the CPL, but will be eliminated when the revisions go into effect next year.

On the question of defense lawyers, scholars have called for the provision of lawyers to be compulsory in death penalty cases. The revised CPL includes the new formulation that in such cases, "the people's court should designate lawyers to undertake the obligation of offering legal assistance" (presumably on a pro-bono basis) when defendants have not appointed their own defenders. Clearly, clarification is needed on precisely at what point in the legal process such a lawyer will be made available. A logical assumption from the CPL revisions is that only those with the money to retain their own lawyers will benefit from the earlier access to counsel the revisions allow.

Most of the scholars believe that the appeals process has become gravely flawed. The original 1980 CPL gave the Supreme People's Court the power of approval over all death penalty cases. Less than 18 months later, however, an NPC Decision allowed for the delegation of this power to provincial higher courts in some cases. This trend has continued unabated until today, and has, they claim, seriously diminished and corrupted the system of review of such sentences, leading to regional inconsistencies in sentencing and inadequate protections for individuals facing execution.

As local authorities seek to make examples of types of offenders who are seen as a problem in their area, the same offense can be punished by death in one province and by imprisonment in another. The trend has also contributed to the "common practice which is against the spirit of the law" of combining the second hearing and the special review of death penalty cases into one proceeding, often adjudicated by the same committee, a practice which robs the "special review" of any value. Scholars call for a clear separation of the powers of "hearing" cases and "approving" sentences, and assert that this is an area in which arguments about inadequate state resources cannot be accepted.

The revised CPL repeats the original's stipulation that death penalty cases are to be approved by the Supreme People's Court, but it remains to be seen whether the option of delegating those powers once more, enshrined as it is in the Organic Law of the People's Courts, will be revised; or whether the political will exists to ensure that other well-established practices will be changed to conform with the law as written. The experience of severely abbreviated procedures and summary justice during the current "Strike Hard" campaign, coming as they do so soon after the revisions of the CPL were passed by the NPC, leave this in significant doubt.

In the face of local and central governments' desire to appear to be taking a tough line against rising crime, thus addressing the popular dissatisfaction this trend engenders, there is little indication yet that officials are listening to the concerns these legal scholars raise or considering implementing any of their suggestions. However, these dissenting voices do point to a healthy debate on the issue in legal circles, and a growing awareness of both the problems of indiscriminate use of the death penalty and the arguments favoring abolition, positions which may, over time, find greater support among those wielding legislative powers.

Major sources (all in Chinese):

• "Retention or Abolition of the Death Penalty and Human Rights Protections," by Yang Dunxian and Chen Xingliang, in Chinese and Foreign Legal Studies, No.6, 1991.
• Comparative Research on the Death Penalty, by Li Yunlong and Shen Demo, China People's Public Security University Publishing House, 1992.
• "Profound Meditations on the Question of the Death Penalty in China," by Bao Suixian, in Reform, Openness and the Development of Criminal Law, China Procuracy Publishing House, 1993.
• "Discussion on the Use of the Death Penalty," by Ma Kechang, in Reform, Openness and the Development of Criminal Law.
• "Proposals and Debate on the Abolition of the Death Sentence for Economic Crimes," by Xia Feng, Reform, Openness and the Development of Criminal Law.
• "On Revising and Perfecting the Procedures for Implementation of the Death Penalty," by Liu Genju, Politics and Law Forum, No.2, 1995.
• General Survey of the Death Penalty, by Hu Yunteng, China University of Politics and Law Publishing House, 1995
• "Several Questions on the Retention or Abolition of the Death Penalty," by Wang Fengzhi, Politics and Law Forum, No.4, 1995