YIN Jianfeng* & ZHOU Kai**

 

Abstract: China’s policy of preserving the death penalty but controlling the death penalty strictly reflects the core value of striking a balance between the protection of human rights and the maintenance of social order. China has achieved remarkable results in strictly restricting the application of the death penalty in recent years, as reflected by the gradual reduction in the number of crimes punishable by death. To further promote human rights protection, China should gradually reform its death penalty policy by moving toward the goal of completely abolishing when the time is right, which requires continuous efforts at different levels across various stages.

 

Keywords: death penalty policy · abolishment · human rights protection

 

On October 8, 2021, the Chinese delegation made an explanatory statement before taking action on the draft resolution on the death penalty at the 48th session of the United Nations Human Rights Council, clearly pointing out that the death penalty is a legislative and judicial issue within the sovereignty of a country and that China did not agree to treat it as a human rights issue, so China would vote against the draft resolution. At the same time, China clearly pointed out that the country implements the policy of “preserving the death penalty but controlling the death penalty strictly.”¹ In fact, China’s vote against the draft resolution does not indicate that China supports the death penalty or completely rejects the abolishment of the death penalty. In the spirit of respecting national sovereignty, China believes that what kind of death penalty policy a country implements is determined by its judicial system, level of economic and social development, historical and cultural background, and other factors. China also believes that a country may implement death penalty policies differently at different times. Since the launch of reform and opening-up, China has attached great importance to the development of human rights. Since 2009, China has formulated and implemented four Human Rights Action Plans. People’s living standards have been continuously improved. Various rights have been more effectively guaranteed. Policies and legal measures to protect the rights and interests of specific groups have been improved.² As General Secretary Xi Jinping pointed out, “China has always followed the spirit of the Charter of the United Nations and the Universal Declaration of Human Rights, persisted in combining the universality of human rights with the reality of China, and embarked on a path of human rights development with Chinese characteristics in line with the trend of the times.”³ On February 26, 2022, General Secretary Xi Jinping further emphasized during the 37th collective study of the Political Bureau of the CPC Central Committee that “human rights are historical, concrete, and realistic and cannot be separated from the social and political conditions as well as historical and cultural traditions of different countries.” “In promoting the development of human rights in China, we have combined the Marxist concept of human rights with the concrete reality of China and the excellent traditional Chinese culture, summarized the successful experience of our Party in uniting and leading the people to respect and protect human rights, drawn on the outstanding achievements of human civilization, and embarked on a human rights development path that conforms to the trend of the times and our national conditions.”⁴ In 2004, “the state respects and protects human rights” was written into the Constitution. In 2012, “respecting and protecting human rights” was listed as a task of China’s Criminal Procedure Law, so human rights protection in the field of the rule of law in China has realized the transformation from “introducing human rights into the Constitution” to “introducing human rights into the laws”.

 

Human rights protection is also the basic value orientation of the current criminal policy of tempering justice with mercy in China.⁵ The death penalty policy is the embodiment of the primary criminal policy of tempering justice with mercy in the field of the death penalty. The establishment of crimes and reduction in the number of crimes punishable by death and the judicial decisions of the death penalty cases should conform to the policy of tempering justice with mercy. In light of this, the Third Plenary Session of the 18th Central Committee of the Communist Party of China put forward the goal of a “gradual reduction in the number of crimes punishable by death”. In the aforementioned explanatory statement, the Chinese delegation reiterated China’s policy of “preserving the death penalty but controlling the death penalty strictly”. This death penalty policy focuses on the balance of value between human rights protection and the maintenance of social order and also takes human rights protection as an important value orientation. In recent years, China has made great efforts to restrict the death penalty and achieved remarkable results, highlighting the value pursuit of human rights protection. However, of course, there is still much room for further improvement. Although the international community has not yet reached a consensus on the issue of whether the death penalty should be abolished, we expect that when developing the death penalty policy, China can consider the country’s reality, borrow from international experience, continue to advance based on controlling the death penalty strictly, and gradually change the direction towards abolishing the death penalty at different levels across various stages.

 

 

International human rights conventions are the general name of the three United Nations conventions on international human rights protection, including the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and the Optional Protocol to the International Covenant on Civil and Political Rights. The international human rights conventions, with the Universal Declaration of Human Rights as the guiding principle and basis, are the embodiment of the Universal Declaration of Human Rights. The basic attitude of international human rights conventions toward the death penalty has undergone an evolution from restriction to abolishment.

 

 

The Universal Declaration of Human Rights, as a programmatic document, does not directly address the issue of the death penalty, but only mentions in principle that “everyone has the right to life, liberty, and security of person” in Article 3 while stipulating in Article 5 that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The former highlights the supremacy of the right to life as a basic human right, while the latter clearly shows the opposition to torture. Of course, there are still many controversies about whether the death penalty is “torture” and “inhuman punishment” in academic circles. Some scholars believe that, if we look into the future, the death penalty will inevitably be abolished as it will be closely questioned in terms of humanitarian.⁶ Others believe that “the exercise of the right to the death penalty in constitutional countries does not result in violations of human rights.”⁷ The International Covenant on Economic, Social, and Cultural Rights mainly focuses on the right of citizens to equal participation in work and education but does not touch on the issue of the death penalty. Article 6 of the International Covenant on Civil and Political Rights adopted in 1966 is the embodiment of Article 3 of the Universal Declaration of Human Rights, which specifically stipulates the death penalty in six aspects. It mainly includes: (1) No one shall be arbitrarily deprived of his life; (2) Sentence of death may be imposed only for the most severe crimes; (3) There shall be no derogation from the obligation of sovereign states to prevent and punish the crime of genocide; (4) Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence; (5) Sentence of death shall not be imposed for crimes committed by persons below 18 years of age and shall not be carried out on pregnant women; (6) Nothing in this article shall be invoked to delay or to prevent the abolishment of capital punishment by any State Party to the present Covenant. It can be seen that the Covenant does not explicitly require State Parties to abolish the death penalty completely but imposes strict restrictions on the application. At the legislative level, State Parties should impose the death penalty only for the most serious crimes and give those sentenced to death the right to seek commutation or pardon. At the judicial level, the death penalty should be based on a final judgment by a competent court, with due regard to procedural justice, and should not be imposed on persons under the age of 18. At the executive level, it should not be imposed on pregnant women. In addition, the Covenant provides that “amnesty, pardon or commutation of the sentence of death may be granted in all cases.” The authors believe that this provision is only advocacy and does not have a mandatory effect, because if all those sentenced to death can at least receive actual commutation, then the signing of the Covenant means that all State Parties have de facto abolished the death penalty, which is obviously not the actual situation. The Optional Protocol to the Covenant essentially reiterates the content of the Covenant, and the provisions on the death penalty are substantially the same as those of the Covenant. Subsequently, in 1984, the United Nations Economic and Social Council adopted the Safeguards Guaranteeing Protection of the Rights of those Facing Death Penalty, which further restricted the scope of application of the death penalty to “intentional crimes with lethal or other extremely grave consequences,” but does not require State Parties to abolish the death penalty. It also makes detailed provisions on the requirements of evidence, procedural safeguards, the right of appeal and pardon of those sentenced to death, and the way of executing the death penalty.

 

 

The Second Optional Protocol to the International Covenant on Civil and Political Rights that aims at the abolishment of the death penalty (hereinafter referred to as the Second Optional Protocol) was adopted by the United Nations General Assembly in 1989. It clearly requires State Parties to abolish the death penalty: “No one within the jurisdiction of a State Party to the present Protocol shall be executed.” Of course, a State Party could declare “a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.” The Second Optional Protocol is the first international human rights legal document that explicitly proposes the abolishment of the death penalty in the world. Its adoption marks that the basic attitude of international human rights conventions towards the death penalty has changed from restricting the death penalty to abolishing it. In fact, as early as 1983, the Council of Europe adopted the Protocol No. 6 to the Convention for the Protection of Human Rights to the European Convention on Human Rights, which initiated the worldwide abolishment of the death penalty. After the adoption of the Second Optional Protocol, the State Parties to the American Convention on Human Rights also adopted a protocol aimed at abolishing the death penalty in 1990, setting off a global wave to abolish the death penalty. In 2007, the United Nations General Assembly adopted resolution A/RES/62/149 on a moratorium on the use of the death penalty, calling on the States reserving the death penalty to establish a moratorium on executions with a view to abolishing the death penalty.⁸

 

 

China signed the International Covenant on Economic, Social, and Cultural Rights in 1997 and ratified it in 2001. China also signed the International Covenant on Civil and Political Rights in 1998, and declared reservations to Articles 4, 5, and 6 of the Covenant, which China has not yet ratified. China has not signed and ratified the Optional Protocol to the International Covenant on Civil and Political Rights and the Second Optional Protocol that aims to abolish the death penalty.⁹ In fact, China has actively fulfilled the relevant obligations of the International Covenant on Economic, Social, and Cultural Rights. China formulated laws and regulations to protect the rights and interests of workers, such as the Labor Contract Law and the Industrial Injury Insurance Regulations, amended the Compulsory Education Law, popularized the nine-year compulsory education, and guaranteed the right to education of school-age children. Although China has not yet ratified the International Covenant on Civil and Political Rights, China’s obligations under the Covenant have actually been fulfilled. As far as the death penalty was concerned, the Covenant itself does not require State Parties to abolish the death penalty altogether but only to impose it as a punishment for the “most serious crimes.” In this regard, the Criminal Law of the People’s Republic of China strictly limits the scope of application of the death penalty to criminals who commit “extremely serious crimes,” and excludes the its application to minors and pregnant women, and in principle excludes its application to the elderly who have reached the age of 75. Thus, a system with Chinese characteristics has been established characterized by the imposing the death penalty with reprieve. The number of crimes punishable by death is being reduced and procedural safeguards for the death penalty are improving. China’s current death penalty policy and China’s efforts to restrict and control the death penalty strictly have achieved remarkable results, which is the embodiment of the actual fulfillment of the obligations of the International Covenant on Civil and Political Rights.

 

 

“Whether the death penalty violates human rights” has become an important issue in the current academic debate on whether the death penalty should be abolished. We believe that it is not appropriate to measure the issue of the death penalty in China based on the concept of “human rights” originating in the Western discourse system. The issue of the death penalty is a legislative and judicial issue within the scope of sovereignty and is China’s internal affair that shall not be interfered with. On the other hand, China is actively building a discourse system of human rights with Chinese characteristics and developing human rights with Chinese characteristics, so the human rights protected in China’s death penalty policy have essentially different connotations and extensions from those defined in the “human rights” in the Western discourse system. In other words, the “human rights” in the Western discourse system are completely based on the individual standard, which means that they are unequal human rights beneficial for only a few people. But the protection of human rights in China’s death penalty policy has always been based on the protection of the basic rights of all members of society, which focuses on not only the balance between the protection of the rights of the accused and the relief of the rights of the victims, but also the balance between protecting individual rights and maintaining the overall social order. Therefore, China truly realizes the equal protection of human rights for all members of society.

 

 

On the issue of the relationship between whether the death penalty should be abolished and the protection of human rights, Professor Qiu Xinglong is representative of scholars who advocate the abolishment of the death penalty. He, from the perspective of the supremacy of life and the universal respect for life, believes that the sacredness of life, natural rights, and basic human rights constitute the three major concepts supporting the abolishment of the death penalty. The supremacy of the value of life will inevitably lead to the conclusion that human life should be universally and absolutely respected. Therefore, only by establishing the concept that life should be universally and absolutely respected may we talk about the abolishment of the death penalty.¹⁰ Professor Feng Jun, based on the perspective of humanity and miscarriage of justice, believes that the death penalty for criminals should be abolished immediately. The view that the death penalty should be abolished in an all-round way by restricting the death penalty can neither explain the legitimacy of the application of the death penalty to criminals who enjoy human dignity nor can it explain why the application of the death penalty must be preserved when there will inevitably be a miscarriage of justice to innocent people. Therefore, such a view cannot be used as the ultimate basis for “abolishing the death penalty in the future”.¹¹ It can be seen that Professor Qiu expounds on the issue of the death penalty and human rights from the perspective of the violation of the right to life by the death penalty, while Professor Feng explores the legitimacy of the death penalty from the perspective of the violation of human dignity by the death penalty and the inevitability of the miscarriage of justice.

 

In contrast, other scholars believe that the death penalty does not constitute a violation of human rights. It is worth noting that although these scholars advocate that the death penalty does not constitute a violation of human rights, they are not necessarily supporters of the death penalty, nor do they give it high praise. They only express their views on the relationship between it and human rights. For example, Professor Li Shi’an believes that there is no contradiction between the establishment of the death penalty and human rights. Only in the social state rather than the natural state can people enjoy more adequate human rights. The content of human rights varies in different stages of historical development. The scope of people’s transfer of rights and the application of the death penalty both change with the level of social productive forces.¹² Professor Yang Dunxian and Professor Chen Xingliang believe that “abolishing the death penalty is certainly a goal pursued by the human rights movement, but whether it should be abolished depends on a country’s material living conditions and national conditions.” Therefore, “preserving the death penalty does not mean violating human rights, and the protection of human rights cannot necessarily lead to the conclusion of abolishing the death penalty.”¹³ It can be seen that the above-mentioned scholars discuss the necessity and rationality of the death penalty from the relationship between the death penalty and the level of social productive forces, material living conditions, and the actual situation of the country. They believe that as long as the two are compatible, there is no question of whether the death penalty violates human rights. In addition, Professor Chen Yonghong discusses this issue from the perspective of constitutional law and believes that the key to deciding whether the death penalty is humane lies in whether the state sets the death penalty strictly, whether it respects the dignity of criminals, and whether it avoids applying the death penalty to special subjects of crime. The absoluteness of rights does not mean that rights are absolutely inalienable. The theory of the social contract is typically a historical ideal, so it cannot be used to explain the inalienability of the right to life.¹⁴ Therefore, he focuses more on the legitimacy and rationality of the death penalty in a country under the rule of law. As long as the applicable conditions, procedures, and methods of the death penalty meet the basic requirements of such a country, the right to life as an absolute right is also not absolutely inalienable.

 

As far as the relationship between the death penalty and human rights is concerned, the authors believe that the death penalty itself does not necessarily constitute a violation of human rights. In other words, to determine whether a country’s death penalty policy conforms to the concept of human rights, we should consider the level of economic and social development and the actual situation of the country, combine the object and scope of crimes applicable to the death penalty, the procedure of sentencing and executing the death penalty, the way of execution, and whether there are remedies such as appeal, complaint, and application for pardon. Taking in to account these factors, the existence of the death penalty in a country’s specific historical period can be viewed as a necessity and rational. Then the conclusion of whether the death penalty constitutes a violation of human rights is drawn. It is true that the right to life of human beings is supreme, but the right to life of every member of society is equal. The Criminal Law is the Magna Carta of criminals and all members of society. When depriving criminals of their lives is a necessary measure, the only option and the last resort for a country to maintain social order and protect the basic rights of all members of society in a specific historical period, the absolute right to life does not mean the inalienability of life and the right to life. Therefore, we do not advocate discussing the relationship between the death penalty and human rights without considering the specific national conditions and the scope and mode of applying the death penalty. Human rights are relative at any time. Only when we combine them with a country’s specific phase in the historical period and the level of economic and social development can we determine the necessity and rationality of the death penalty in a more rational and objective way. And then the relationship between the death penalty and human rights can be clarified.

 

 

Combining punishment with leniency is the fundamental criminal policy in China. “Preserving the death penalty but controlling the death penalty strictly”¹⁵ is the latest expression of the death penalty policy in China. China’s death penalty policy is not only an integral part of the criminal policy of combining punishment with leniency, but also the concrete embodiment of this fundamental criminal policy. As a result, the legislative, judicial, and executive practice of the death penalty should follow the basic concept of combining punishment with leniency. China’s death penalty policy focuses not only on the protection of the rights of the defendant and the relief of the victim’s rights but also on the maintenance of overall social order. The policy actively seeks a balance between the protection of human rights and the maintenance of social order in order to effectively protect the fundamental interests of the vast majority of people.

 

 

China has actively fulfilled its obligations under the relevant international human rights conventions, made arduous efforts in restricting the death penalty and controlling it strictly. Remarkable results are achieved and are mainly reflected in the following four aspects:

 

(1) To gradually restrict the application of the death penalty and reduce the number of crimes punishable by death. The death penalty is only applicable to criminals who commit extremely serious crimes, so the definition of “extremely serious crimes” affects the scope of the death penalty crimes. In this regard, there are different views in academic circles, such as the unity of subjectivity and objectivity, the objective standard, the unity of social harmfulness and personal dangerousness, the standard of statutory punishment, etc.¹⁶ However, the general theory holds that “extremely serious crimes” represent the unity of the extremely serious nature of crimes, extremely serious circumstances of crimes, and extremely serious personal dangerousness of criminals. Only when all these three conditions are met can the death penalty be applied.¹⁷ If the process of revising our criminal law is examined around this standard, the charge of death penalty is constantly reduced, the interpretation of “extremely serious crimes” is increasingly rigorous and restrictive. In fact, since the founding of New China, China’s death penalty policy has experienced a tortuous process of fluctuation, which has had a direct impact on the number of death penalty crimes. Before the promulgation of the Criminal Law in 1979, the death penalty policy of “less killing, careful killing” was implemented under the influence of Mao Zedong Thought in the suppression of counter-revolutionaries and the struggle against “three evils” and “five evils.” Comrade Mao Zedong once pointed out: “If it makes no difference to arrest or not to arrest someone, arresting him would be a mistake. If it makes no difference to kill or not to kill someone, killing him would be a mistake.” The Criminal Law in 1979 basically implemented the death penalty policy of “preserving the death penalty, insisting on reducing execution, and preventing indiscriminate killing.” However, with many separate criminal laws being promulgated after 1981, the number of crimes subject to the death penalty increased, the application of the death penalty became more frequent, and the death penalty has emerged as an absolute statutory penalty clause. It was not until 1997 that the Criminal Law displayed the previous prudent attitude toward the application of the death penalty and adjusted the previous legislation on the death penalty. For example, the basic conditions for applying the death penalty have been revised from the “most heinous crimes” to the “extremely serious crimes.” The objects of the death penalty have been limited. Vague death penalty crimes such as “hooliganism” and “speculation and profiteering” have been broken down into different crimes. The conditions for the actual execution of the death penalty with reprieve have further restricted its use. Since then, amendments have reduced the number of crimes punishable by death and limited the conditions for applying the death penalty. Typical examples are as follows: the Eighth Amendment to the Criminal Law abolished the death penalty for 13 crimes, including theft, smuggling of ordinary goods and articles, smuggling of cultural relics, bank bill fraud, falsely issuing special VAT invoices, and imparting criminal methods. The Ninth Amendment to the Criminal Law abolished the death penalty for nine crimes, including smuggling weapons and ammunition, smuggling counterfeit currency, counterfeiting currency, fund-raising fraud, organizing prostitution, and forcing prostitution. It can be seen that the gradual reduction of crimes punishable by death is a remarkable achievement in strictly restricting the application of the death penalty in China, and a highlighted reflection of human rights protection in China’s death penalty policy.

 

(2) The procedural guarantee of the death penalty has been constantly improved. According to the Organic Law of the People’s Courts amended in 2006, the power to approve death sentences has been exercised by the Supreme People’s Court since January 1, 2007. The Supreme People’s Court has taken back and exercises the power to approve death sentences. On the one hand, it helps to ensure the unity of the application of death sentences throughout the country and embodies the principle of equal application of the Criminal Law. On the other hand, it plays a supervisory role, minimizing the number of cases in which the death sentence is handed down, and giving a higher level of relief to those who are victims of miscarriages of justice, which is in line with the basic concept of human rights protection. When it comes to the standard of evidence in death penalty cases, in 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 issued the Provisions on Several Issues Concerning the Examination and Judgment of Evidence in Death Sentence Cases and the Provisions on Several Issues Concerning the Exclusion of Illegal Evidence in Criminal Cases, which regulate the exclusion of illegal evidence in criminal cases, especially in the death penalty cases. The legality of the source of evidence in these cases has been more strictly restricted. In terms of trial level, the Criminal Procedure Law revised in 2012 explicitly requires that cases that may involve life imprisonment and the death penalty should be first tried by intermediate People’s Courts. The improvement of the trial level of the death penalty cases helps to improve the quality of handling such cases, reflecting a prudent attitude towards the death sentences. In terms of the protection of the defendant’s right to legal assistance and other legitimate rights and interests in the process of the death penalty review, the Supreme People’s Court issued the Measures of the Supreme People’s Court for Listening to Opinions of Defense Lawyers in the Handling of the Death Penalty Review Cases in 2014, and promulgated the Several Provisions of the Supreme People’s Court on Safeguarding the Lawful Rights and Interests of the Parties in the Procedures of Death Sentence Review and Execution in 2019. Defense lawyers are given the right to review files and submit opinions in writing or in person during the death penalty review procedure. It gives criminals the right to apply for meeting with their close relatives and other relatives and friends before their execution, and gives the criminals’ close relatives the right to apply for meeting with criminals before the execution. It also gives criminals the right to leave their last words by means of audio and video recording before they are executed. The Legal Aid Law, which came into effect in 2022, stipulates that if a criminal suspect or defendant who may be sentenced to death, as well as a defendant in a death penalty review case who applies for legal aid, has not entrusted a lawyer to act for their defense, the people’s court, the people’s procuratorate and the public security organs shall notify the legal aid institution to appoint a lawyer with more than three years of relevant practice experience as the defender. This provision fully guarantees the right of criminal suspects and defendants death penalty cases to an effective defense. It can be seen that the sentence and execution of the death penalty have strict procedural requirements in China. Each procedure gives the defendant a number of rights protection and relief measures. Such procedures not only highlight the procedural justice but also play a role in restricting the application of the death penalty in terms of its actual role, which is in line with the basic concept of human rights protection.

 

(3) The system of the death penalty with reprieve plays a role in restricting the death penalty. The death penalty with a reprieve system with Chinese characteristics established by our country is undoubtedly a critical manifestation of limiting the actual carrying out of the death penalty, reducing the number of criminals sentenced to death, and protecting the defendants’ right to life. In short, the system of the death penalty with reprieve means that criminals sentenced to death, who are not to be executed immediately, can be sentenced to death with a two-year reprieve. During this “probation” period, if there is no intentional crime, the sentence will be commuted to life imprisonment or a lighter penalty after the expiration of the period. If there is an intentional crime with serious circumstances, it should be reported to the Supreme People’s Court for approval of the death penalty. If the crime is committed intentionally but the circumstances are not serious, the calculation of the two-year probation shall be restarted. In judicial practices, the vast majority of criminals sentenced to death with a reprieve can pass the probation period smoothly, and then keep their lives. The fact shows that the death penalty with a reprieve system is a major and effective measure to restrict the actual execution of the death penalty in China and highlights the humanitarian concern for the defendants. Professor Gao Mingxuan once pointed out that the death penalty with reprieve plays an important role in China’s implementation of the death penalty policy of “less killing, careful killing,” which was praised by the international community. The death penalty with reprieve is also an effective measure to give people a way out.¹⁸ At present, except for the criminals of extremely serious corruption who can be sentenced to life imprisonment while applying for the death sentence with a reprieve, other defendants sentenced to death with a reprieve have the opportunity to return to society through commutation, parole, and other systems. It can be seen that the design of the death sentence system is still based on the fundamental idea of educating and reforming criminals to help them return to society one day, instead of isolating them as “enemies.” Therefore, the system of the death penalty with reprieve is a measure that can give criminals hope and a way out. It is a fine example of the concept of human rights protection with Chinese characteristics.

 

(4) The execution of the death penalty is becoming gradually civilized. From the perspective of human rights, the way of executing the death penalty is also an important factor to measure whether the death penalty is humane. The civilized execution mode is more in line with the modern concept of human rights. The way of execution of the death penalty in China has experienced the transformation from execution by shooting to the combination of execution by shooting and injection. Article 45 of theCriminal Law of 1979 stipulated that “the death penalty shall be executed by shooting”, and this article was deleted when the Criminal Law was amended in 1997 because the execution method had been changed to “execution by shooting, injection, etc.” when the Criminal Procedure Law was amended in 1996. It means that, at present, the execution of the death penalty in China includes not only the traditional execution by shooting but also the less painful way of drug injection. Moreover, the use of “etc.” shows that the way of execution of the death penalty in our country is open, not entirely limited to the two mentioned, although the third way of execution of the death penalty has not yet been developed in practice. But this legislation is quite forward-looking and provides a legal basis for China to further explore a more civilized and humane way of executing the death penalty. In fact, as early as 2001, the Supreme People’s Court held a national conference on the execution of the death penalty by injection in Kunming, requiring People’s Courts around the country to effectively promote the execution of the death penalty by injection to help China enter in a more civilized and scientific new stage of carrying out the death penalty.¹⁹ Subsequently, the local courts actively created conditions to carry out relevant work and achieved tangible results. For example, the whole Yunnan province introduced the execution of the death penalty by injection in 2003 and arranged 18 special vehicles for the execution in 18 intermediate courts in the province.²⁰ So far, although the practice of the death penalty by injection has not been adopted throughout China and some provinces are still in the stage of promotion, it is undeniable that the way of executing the death penalty in China has changed from the traditional and single execution by shooting to a more humane way of execution represented by lethal injection. The authors of this paper advocate that the current execution of the death penalty in China should be based on the principle of lethal injection, with the exception of execution by shooting, and that the intermediate People’s Courts should adopt lethal injection to the maximum extent and actively explore other more humane ways of execution of the death penalty.

 

 

In terms of the protection of the defendant’s rights, although there are no objective and realistic conditions for the complete abolishment of the death penalty according to the level of economic and social development and the reality of China’s national conditions, the concept of “controlling the death penalty strictly” has already had a profound impact on China’s death penalty legislation and judicial practice and has been implemented in practice. In legislative terms, “extremely serious crimes” is regarded as the standard for applying the death penalty. In terms of the object of the death penalty, not only are persons under the age of 18 and pregnant women excluded, but the death penalty is also excluded in principle for the elderly over the age of 75, which highlights humanitarian concerns and conforms to the restrictive provisions of the International Covenant on Civil and Political Rights on the object of the death penalty. In judicial terms, we have constantly improved the procedures for sentencing and approving the death penalty. According to the relevant provisions of the Criminal Procedure Law of the People’s Republic of China, the first instance of cases that may be sentenced to life imprisonment and the death penalty is tried by an intermediate People’s Court. The Supreme People’s Court took back the power to approve the death penalty in 2007. The strict judicial procedure of the death penalty is not only the embodiment of the principle of “controlling the death penalty strictly” but also the positive guarantee of the defendant’s right to life. In addition, the system of death sentence with a reprieve has also been created, which reserves an “exit” for the defendant to be excluded from the immediate execution of the death penalty, and in fact, provides a “living way out” for the vast majority of those sentenced to death. Therefore, in legislative, judiciary, and executive practices, China’s death penalty policy not only focuses on the protection of the defendant’s right to life as a basic right and strictly limits the scope of the subject and crimes in the application of the death penalty, but also lays emphasis on the procedural protection and relief of the defendant’s rights, raises the trial level of death penalty cases, ensures that only the supreme judicial organ has the right to review the death penalty, and guarantees the right of appeal of those sentenced to death.

 

In terms of the relief of the victim’s rights, China provides multiple ways of relief, combining the compensation of the offender with national judicial assistance. In order to encourage the offender to actively compensate the victim for the economic losses incurred by the infringement of the victims and their relatives due to criminal acts, as early as 2010, the Supreme People’s Court issued Some Advice on Implementing the Criminal Policy of Combining Leniency with Rigidity, which clearly stipulates that “if the defendant has actively compensated the victim after the case is committed and has confessed and shown repentance, it can be considered as a discretionary circumstance of sentencing according to the law.” Since then, when the Criminal Procedure Law was amended in 2012, the criminal reconciliation system was added. In current judicial practices, it is still a discretionary lenient circumstance that can substantially affect the sentencing results if the criminal suspects and defendants actively compensate the victims for their economic losses in full and obtain the victims’ understanding. The legal basis is that the defendant’s active compensation after committing a crime is the externalization of the subjective attitude of sincere repentance and the concrete manifestation of the reduction of personal dangerousness, which should be the discretionary circumstances of sentencing to measure whether the crime is extremely serious, rather than the so-called “spending money to buy a life.”²¹ In addition, China has also established a relatively complete judicial relief system. In 2016, the Supreme People’s Court issued the Opinions of the Supreme People’s Court on Strengthening and Regulating the State Judicial Relief Work of the People’s Courts. If a victim in a criminal case gets injured, dies, or suffers major property losses, which cause difficulties in their lives or those of their close relatives, the judicial assistance committee of the People’s Court shall, upon application, provide assistance benefits at its discretion. Therefore, the defendant is allowed to offer compensation in exchange for lenient treatment. On the one hand, it embodies the reasonable opportunity provided by the state to protect the defendant’s right to life and plays the role of restricting the application of the death penalty. On the other hand, the victim can also obtain tangible benefits from the compensation to make up for the losses caused by the criminal act to themselves or their relatives, which reflects the balance between the protection of the defendant’s right to life and the relief of the victim’s rights.

 

At the same time, China has always been seeking the balance between the protection of rights and the maintenance of social order in the country’s death penalty policy. As mentioned above, the protection of rights includes not only the protection of the defendant’s right to life but also the relief of the victim’s rights, which, of course, is based on crimes with victims. For all crimes, including victimless crimes, there is a more profound issue and that is the balance between the protection of rights and the maintenance of the overall social order. In terms of the logical relationship, the maintenance of the overall social order is the protection of human rights for all members of society, which is the broader protection of human rights than the protection of merely the rights of defendants and victims. Of course, we must not focus only on the major issues and ignore the minor issues in protecting human rights. We cannot unilaterally safeguard the interests of the whole society regardless of the interests of a few people. Therefore, it is necessary to seek a balance between the protection of human rights of some people and the maintenance of the overall interests of society, which is the core value orientation of China’s death penalty policy. In other words, since the revision of the Criminal Law in 1997, it has undergone 11 amendments, many of which involve the reduction in the number of crimes punishable by death and the reform of related systems, especially the Eighth Amendment to the Criminal Law and the Ninth Amendment to the Criminal Law. The reduction of the death penalty crimes focuses on non-violent and non-lethal crimes. In particular, the statutory maximum penalty for some economic crimes has been adjusted from the death penalty to life imprisonment or even lighter penalties. In addition, since the 18th National Congress of the Communist Party of China, even for the perpetrators of corruption crimes who are deeply hated by the people, the death penalty is rarely applied immediately. Instead, China enhances the inevitability of punishment by targeting both major and minor offenders in order to deter potential corrupt criminals. In fact, although corruption crimes cause huge losses to the Party and the state, the perpetrators’ actions do not directly lead to the consequences of death, so we should be extremely cautious when considering whether to apply the death penalty. Therefore, the continuous reduction in the number of crimes punishable by death for non-violent and non-lethal crimes is the result of the balance between the protection of the offender’s right to life and the maintenance of the overall social order. If the death penalty is not applied or applied without immediate execution, and the social order in related fields can be maintained, then we should be inclined to protect the defendant’s right to life. Otherwise, we should further explore where the line is drawn and determine the standard of applying the death penalty so that the penalty can be limited to meet the need of maintaining social order. In addition, public opinion is also an important factor affecting China’s death penalty policy. It is the embodiment and requirement of socialist democracy, the guarantee of people’s fundamental rights, and an important part of human rights protection for policymakers to listen to public opinion. However, the condition that policymakers actively listen to public opinion and the condition that public opinion intervenes in judicial cases are of two different dimensions. On the one hand, we should actively encourage public opinion to be expressed through reasonable and legitimate procedures, and ensure that public opinion is represented by the law through due process and in turn influence legislation and policy formulation. On the other hand, in the process of judicial discretion in specific cases, especially in the death penalty cases concerning life, judicial personnel should abide by the principle of taking facts as the basis and law as the criterion, treat public opinion objectively and rationally, make the case public reasonably, prevent improper interference of public opinion in judicial case adjudication, and ensure the unity of law application.

 

III. The Limitations of the Function of Human Rights Protection in China’s Death Penalty Policy

 

China has made great efforts to restrict the death penalty on the premise of preserving the death penalty at the present stage and has achieved remarkable results, highlighting the state’s respect for and protection of human rights. However, there are still some outstanding problems in China’s current death penalty policy, which limit the further development of the function of human rights protection. This is mainly reflected in the fact that the death penalty for non-violent and non-lethal crimes has not been completely abolished, the death penalty is still applied for most drug-related crimes, the death penalty arrangements are lacking for some crimes, the amnesty system has not yet played a practical role in restricting the death penalty, and the procedural control of the death penalty still needs to be strengthened.

 

 

At present, in the Criminal Law of our country, the death penalty crimes for non-violent and non-lethal crimes mainly include the following six categories: First, concerning the crime of endangering national security, the death penalty can be applied to those who commit the crime of defecting to the enemy and betraying the country, the crimes of spying, bribing, and illegally providing state secrets and intelligence to foreign countries, and the crimes of aiding the enemy, if the harm to the country and the people is particularly serious and the circumstances are particularly serious. Second, concerning the crime of endangering public security, those who commit the crime of illegally manufacturing, trading, transporting, mailing, and storing firearms, ammunition, and explosives or stealing firearms, ammunition, explosives, and dangerous substances may be sentenced to death if the circumstances are serious. Third, concerning the crime of disrupting the order of the socialist market economy, those who produce or sell counterfeit drugs or poisonous or harmful food and cause death or other consequences with particularly serious circumstances may be sentenced to death. Fourth, concerning the crime of endangering the interests of national defense, the death penalty may be applied to the crime of intentionally providing substandard weapons and equipment and military facilities, if the circumstances are particularly serious. Fifth, concerning the crime of embezzlement and bribery, the death penalty may be imposed if the embezzlement or bribery is especially serious and the state and the people suffer especially heavy losses of interests. Sixth, concerning the crimes of violating military duties, the death penalty may be applied to those who commit the crimes of concealing or falsely reporting military information, fleeing from battle or refusing to pass on or falsely passing on military orders, causing heavy losses in battles and campaigns, or stealing, spying, buying or illegally providing military secrets for institutions, organizations and personnel abroad, if the circumstances are serious. The common feature of the death penalty crimes in the above cases is that the perpetrator does not use direct violence to commit the crime, nor does the perpetrator directly cause the death of another person, so they can be classified as non-violent and non-fatal crimes. In essence, these crimes are not the so-called “extremely serious crimes” defined in international human rights conventions, and there is doubt about the necessity and rationality of arranging the death penalty. This can be a focusing point for China to further reduce the number of crimes punishable by death and provide examples and vitality for the continuous improvement of human rights in China.

 

 

In terms of drug crimes, the death penalty is only applied to the crime of smuggling, trafficking, transporting, and manufacturing drugs. It is also a non-violent and non-lethal crime. The application of the death penalty follows the standard of “quantity + circumstances.” In terms of quantity, the death penalty may be imposed for smuggling, trafficking, transporting, or manufacturing more than 1,000 grams of opium, more than 50 grams of heroin or methamphetamine, or other drugs in large quantities. In terms of circumstances, if the ringleaders of drug gangs carry out armed drug crimes, violently resist inspection, detention, and arrest, and participate in organized international drug trafficking activities, such crimes can be regarded as the basis for applying the death penalty. In judicial practices, the crime of smuggling, trafficking, transporting, and manufacturing drugs has become the non-violent crime that leads to most death penalty cases, accounting for more than 30 percent of all the death penalty cases, even more than violent crimes such as intentional homicide at a specific time and in some place. However, the essential harm of drug-related crimes lies in the infringement on the national drug management system, rather than the infringement on the personal rights of specific victims. Like other non-violent crimes, drug-related crimes do not have the inherent characteristics of violent crimes, such as obvious externality, anti-ethics, and cruelty. The use of the death penalty for drug-related violates the necessity principle of rational allocation of death penalty and the principle of value measurement.²² Armed smuggling, trafficking, transportation, manufacturing of drugs, or violent resistance to inspection, detention, and arrest, if the circumstances are serious, are acceptable as aggravating circumstances for applying the death penalty at present. After all, such acts contain considerable violence. However, the crimes of smuggling, trafficking, transporting, and manufacturing drugs are not the “extremely serious crimes” in essence. Some of those who transport drugs have insufficient understanding of the nature and illegality of such an act, some do it out of economic difficulties, and some are under the influence of factors such as fraud and deception. The social harmfulness of their acts is obviously incompatible with smuggling, trafficking, and manufacturing of drugs. Based on the fact that the subjective malignancy of the drug transporter is relatively low and the reformability is relatively high, the discretionary penalty should not be based on quantity. Deliberation and consideration of the rationality of the death penalty should be taken before this last resort is applied.

 

 

In addition to the death penalty for non-violent and non-lethal crimes, the rationality of the death penalty arrangements for some violent crimes in our Criminal Law is also worth further discussion. These violent crimes with the death penalty arrangements can be divided into two categories: one is that the criminal act itself is fatal and can directly cause the death of the victim, and the conditions for abolishing the death penalty are not yet available at present, such as intentional homicide. The other is that the criminal act itself is not fatal, but it has a risk of causing death or and it results in death, and then the death penalty can be applied. For the latter, although it conforms to the basic principles of our current Criminal Law norms and legal fiction, this legislative technique excludes the application of the death penalty for intentional homicide, increases the number of unnecessary crimes punishable by death, and hampers the continuous reduction in the number of crimes punishable by death. For example, Article 263 of the Criminal Law arranges the death penalty for robbery, which is mainly based on the result of causing death in the robbery process. It can no longer be punished as intentional homicide, but merely as robbery. In fact, the crime of robbery is stipulated in the chapter on crime against property, which is a typical property crime like theft and fraud. Although it is violent to some extent, the main purpose of the perpetrator is to seek money rather than to take a life. Whether it is reasonable to arrange the death penalty for such property crimes, at least in form, is open to question. In fact, there are many charges of death penalty in the Criminal Law that may occur specific fatal circumstances. This legislative technology leads to the death penalty charges in forms that are quite complicated and redundant.

 

 

It is generally believed that amnesty refers to the system in which the head of state or the supreme authority orders a stay of execution of all or part of the penalty for a specific offender who has been sentenced to a crime.²³ According to the Constitution of China, the Standing Committee of the National People’s Congress decides on amnesty, and the president issues the amnesty decree. Since the founding of New China, amnesty has been granted nine times. In recent years, China has granted amnesty twice respectively in 2015 to commemorate the 70th anniversary of the victory of the Chinese People’s War of Resistance Against Japanese Aggression and the World Anti-Fascist War, and in 2019 to celebrate the 70th anniversary of the founding of New China. The implementation of China’s amnesty system in the new era embodies the concepts of governing the country by law and the spirit of humanitarianism. It represents the in-depth implementation of Xi Jinping’s thought on the rule of law and is an important manifestation of governing the country by the combination of law and morality. Of course, China’s current amnesty is mainly applied “from top to bottom” at major historical moments to some certain kinds of criminals serving sentences. Those sentenced to death are given neither amnesty nor the right to apply for the amnesty “from bottom to top” for them to get the last chance of survival. However, the International Covenant on Civil and Political Rights China signed clearly stipulates that “anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.” From the legal angle, after the death penalty is approved by the Supreme People’s Court, seeking amnesty is the only hope the recipient has for a stay of execution. The amnesty system is not entirely imported from the West, and there has been a tradition of amnesty in China since ancient times. Efforts to promote a practical role of China’s current amnesty system in restricting the death penalty are not only the requirements of fulfilling the obligations of relevant international conventions, but also the respect and guarantee for the right of those sentenced to death to apply for amnesty. As far as the actual effect is concerned, amnesty is also one of the effective ways to strictly control the application of the death penalty. By analyzing a large number of Amnesty Rulings issued in the ninth amnesty, it can be easily found that even though the amnesty is still implemented “from top to bottom” by the state, criminals who meet the conditions of amnesty need to send their applications for amnesty “from bottom to top” to obtain amnesty. This application procedure provides a good practical experience for China to explore the application for amnesty by criminals, especially by those sentenced to death, in the name of individuals.

 

 

The death penalty policy is embodied in the two levels of entity and procedure. The procedural control is an important way to realize “controlling the death penalty strictly,” it involves the trial and sentencing, the death penalty review, the death penalty case proof, the death penalty defense, etc. In recent years, China has made many improvements in the procedural control of the death penalty, which embodies the spirit of human rights protection. However, in judicial practices, especially in the trial stage, there is still the practice of “highlighting conviction rather than sentencing” to a certain extent. In other words, the trial mainly revolves around conviction, which easily leads to a series of problems such as actually eliminating the sentencing function of the collegial panel and limiting the participation of both the prosecution and the defense in the sentencing debate, thus affecting the quality of lawyers’ defense in the death penalty cases. Besides, the reasoning and argumentation of the death penalty judgment today still need to be strengthened. The inability to respond with explanations to the opinions and reasons one by one concerning the sentence from the prosecution and the defense in fact can affect the development and improvement of China’s death penalty policy and further promote the concept of human rights protection.

 

 

Although China does not have the objective and realistic conditions to abolish the death penalty in an all-round way at present, China affirms that the death penalty is temporary and transitional. China holds that in order to further promote the value concept of human rights protection, the country should gradually move toward the direction of abolishing the death penalty on the basis of controlling the death penalty strictly, which has gradually become the mainstream voice of the current criminal law circles in China. For example, Professor Gao Mingxuan points out that “the abolishment of the death penalty has become an irreversible trend”;²⁴ Professor Zhao Bingzhi believes that “from the perspective of dealing with the challenges of globalization of the death penalty reform, the direction of China’s death penalty system reform should be, based on the existing the death penalty system, gradually restricting and reducing the death penalty and eventually abolishing it”;²⁵ Professor Lu Jianping advocates that “in policy, we should clarify the temporary and transitional nature of the death penalty and highlight the ultimate goal of abolishing it.”²⁶ We are deeply convinced by the above views. Indeed, China’s current policy of “preserving the death penalty but controlling the death penalty strictly” is in line with the current national conditions. In the actual process of implementation, it also attaches great importance to the protection of human rights, and will not cause too many disputes about human rights. However, with the continuous development of China’s economy and society, the increasing improvement of civilization and the continuous promotion of the concept of human rights protection, the death penalty policy should be not only “less killing, careful killing” but also “preserving the death penalty but controlling the death penalty strictly” in a transitional stage. And we should constantly adjust the death penalty policy and reduce the number of crimes punishable by death, moving towards the ultimate abolishment of the death penalty. Here, we as the authors of this paper advocate the “abolishment” rather than the “abolition” of the death penalty. There are subtle differences between the two. “Abolition” means no death penalty crime remains in the Criminal Law of our country, let alone the application of the death penalty. “Abolishment” means not completely opposing the preservation of some death penalty crimes such as extreme violent crimes, terrorist crimes, and wartime military crimes in theCriminal Law, but regarding the death penalty as a long-term “prepared but not used” penalty means in judicial practices while the application of the death penalty is in fact stopped. Only during a specific period or when a highly serious event occurs can the application of the death penalty to the defendant in a specific case be restarted. Compared with the “abolition” of the death penalty, China’s efforts to achieve the “abolishment” are more realistic and feasible. We do not advocate a radical reform of the death penalty. Such a reform that does not conform to the reality and national conditions and lacks basic public support will largely lead to the fluctuation of public opinion, intensify the dissatisfaction of the public with China’s death penalty policy, and then impact and hinder the overall reform and development process of China’s death penalty policy. Specifically, we can further strictly control the death penalty from the following five aspects so as to effectively promote the process of “abolishing” the death penalty and more completely demonstrate the concept of human rights protection.

 

 

As far as the reform of the death penalty system is concerned, Professor Gao Mingxuan believes that the death penalty should be mainly applied to a small number of violent crimes, and should be with a reprieve when possible. For non-violent crimes, we can consider abolishing them in different stages and in batches.²⁷ Therefore, even if the perpetrator meets the applicable standard of “extremely serious crimes” of the death penalty, not all of them should be executed immediately. Professor Shi Yan’an advocates that “except for serious military crimes, serious violent acts based on terrorism and extremism and crimes resulting in death, the death penalty with reprieve should be applied to all criminals who commit extremely serious crimes in accordance with Article 48 of the Criminal Law.”²⁸ In fact, none of the above views excludes non-violent crimes from “extremely serious crimes.” We believe that to realize the gradual abolishment of the death penalty, we should start with a strict interpretation of the applicable standard of the death penalty, which is the “extremely serious crimes.” We can borrow the content of the international human rights conventions and interpret the death penalty applicable standard of “extremely serious crimes” more strictly as “intentional crimes with lethal or other extremely serious consequences.”²⁹ On this basis, we can examine the rationality of the existence of non-violent and non-lethal death penalty in our existing Criminal Law, as well as the feasibility of the abolishment of related crimes.

 

At present, China should still follow the spirit of “gradual reduction in the number of crimes punishable by death” in the death penalty reform put forward by the Third Plenary Session of the 18th Central Committee of the Communist Party of China. Starting with non-violent and non-lethal crimes, we should reduce the number of crimes punishable by death in legislation, strictly restrict the application of the death penalty in judicial practices, and gradually promote the process of abolishing the death penalty. Future amendments to the Criminal Law may involve the abolishment of the death penalty for non-violent and non-lethal crimes such as the crime of producing and selling counterfeit drugs and the crime of producing and selling toxic and harmful food. These two typical profit-seeking crimes of manufacturing and selling fake and inferior commodities as examples are not “extremely serious crimes” according to the standard, so they are should not be crimes punishable by death. Specifically, although these non-violent crimes can also cause “extremely serious” objective and harmful results, the nature of the crimes can hardly be considered as being extremely serious. Most criminals hold laissez-faire or even negligent attitude towards the objective harmful results for illegal profits, and their subjective malignancy is not extremely evil.³⁰ Moreover, the death penalty plays a very limited role in curbing such crimes, because as far as the generation mechanism is concerned, these crimes exist mainly because of regulatory loopholes, chaotic market management, unsound mechanisms, failure of supervision, and other institutional problems. To a large extent, the death penalty for these crimes is arranged based on retribution and the declarative policy in response to extreme food safety events. When the perpetrator of manufacturing and selling counterfeit drugs or toxic and harmful food hopes or allows others to suffer casualties, the life and health of the specific or non-specific majority should be considered as the main object of infringement in such crimes. In this case, it is more reasonable to consider such behaviors as crimes of infringing personal rights or endangering public safety. Therefore, even if the death penalty for such crimes is abolished, it can still be applied to the crime of intentional homicide or the crime of endangering public safety by dangerous means when necessary, because the perpetrator intentionally commits acts endangering food and drug safety in the knowledge it may cause the death of a specific or unspecified majority of people.

 

 

Drug crimes are typical non-violent and non-lethal crimes, which infringe on the state’s drug management system rather than the right to life of specific victims. Based on the high rate of application of the death penalty in drug-related crimes in China, it is necessary to further limit the scope of its application in drug-related crimes. At present, Article 347 of the Criminal Law of the People’s Republic of China stipulates the acts of smuggling, trafficking, transporting, and manufacturing drugs as the same crime, and arranges the same statutory punishment. But in fact, these four kinds of drug-related crimes are obviously different in the causes and the subjective malignancy of the perpetrators, so it is not appropriate to apply the same standard to their sentencing. In other words, there are significant differences between manufacturing and transporting the same quantity of drugs, whether in terms of the size of the organization, the technical difficulty of the act, or the degree of “awareness” of the nature of the act. As far as the crime of transporting drugs is concerned, in practice, a large number of perpetrators who commit the crime of transporting drugs only know the part they handle subjectively, the lack of awareness of the overall social harmfulness of their acts, and the limitations of their subjective awareness restrict their choice of the objective act. In other words, even if the act can be objectively regarded as an important part of drug crimes, the objective social harmfulness of the act does not necessarily lead to the conclusion that the perpetrator has extreme subjective malignancy. On the whole, the perpetrator of the crime of transporting drugs does not meet the applicable standard of the death penalty for “extremely serious crimes.” The current reduction in the number of drug-related crimes punishable by death in China should begin with abolishing the death penalty for the crime of transporting drugs.

 

As far as the specific measures are concerned, we advocate that the alternative charges in Article 347 of the Criminal Law should be divided into four single crimes. Going from major to minor crimes, they are drug manufacturing, drug trafficking, drug smuggling, and drug transportation. Different levels of statutory penalties should be arranged for these four crimes. At present, the death penalty for the crime of manufacturing drugs and the crime of smuggling and trafficking drugs can be temporarily preserved in legislation. But the death penalty for the crime of transporting drugs should be abolished, and the statutory maximum penalty should be adjusted to life imprisonment. The reason for divide one crime down to four charges is to further consider the subtle differences between the objective harmfulness and the subjective malignancy of these drug-related crimes in the subsequent process of amending the law so as to achieve the precise sentencing. When the death penalty for drug-related crimes has not been completely abolished, putting the most serious drug-related crimes in the front can fully reflect the general logic of arranging crimes in the specific provisions of the Criminal Law based on severity, highlighting the attitude of the state to crack down on drug-related crimes. It can also achieve the effect of combining punishment and leniency. In fact, the crime of manufacturing drugs is the primary link in drug-related crimes. Most of the drug-related crimes are group crimes with a highly organized drug-making process, whose social harmfulness is obviously higher than that of drug trafficking, smuggling, and transportation. Drug traffickers, on the other hand, sell drugs to others on the premise of knowing the harmfulness of drugs for profit-seeking purposes, resulting in drugs directly entering society and acting as a medium for drugs from “factories” to “markets.” Therefore, the perpetrators of these two kinds of drug-related crimes have a very clear understanding of the nature of their acts and the degree of social harmfulness. Comparatively speaking, the acts of smuggling and transporting drugs do not directly promote the production of drugs, nor does it cause drugs to flow directly into the “market.” It is in a relatively closed intermediate link, which means that the perpetrators may not have a clear understanding of the nature and harmfulness of their own acts. Moreover, smuggling is also a special act of transportation, and the perpetrators of the crime of smuggling drugs and the crime of transporting drugs are similar in subjective awareness. In practice, the vast majority of those who smuggle and transport drugs only know about a small link in the whole chain of drug-related crimes. Some do not know the types or even quantities of the drugs they transport and some do not know whether they transport drugs or illegal medicines, controlled pharmaceuticals, and psychotropic substances. The subjective malignancy of such perpetrators is obviously less serious than that of those who manufacture and sell drugs. It is the basic requirement of the principle of suiting responsibility and punishment to crime and responsibility to arrange different penalties for drug-related crimes with different degrees of harm.

 

 

In the Criminal Law of our country, some of the crimes are punishable by death as they lead to the aggravated result of “causing death.” These crimes are basically committed intentionally, but there are three scenarios for the crime of “causing death.” Such scenarios can only be intentional, such as the killing of the kidnapped person in the crime of kidnapping; it can be intentional or negligent, such as “causing death” in robbery; or it can only be negligent, such as intentional injury (causing death). According to the principle of suiting responsibility and punishment to the crime, the criminal responsibility of causing death by negligence should be lighter than that of causing death intentionally. The statutory punishment of the two should be stipulated separately in legislation to reflect the difference in the negative evaluation of the two by law and to adapt to the concept of social equality and justice. We believe that arranging the death penalty is more reasonable only for intentionally causing death, and there is no necessity and rationality of the death penalty for committing basic crimes while negligently causing death. In other words, if the perpetrator of such crimes is intentionally causing death, it is more appropriate to consider it as the crime of intentional homicide. For example, if the perpetrator kills a kidnapped person in the act of kidnapping, it goes beyond the purpose of extorting property. If the purpose of the perpetrator is seeking money all the time, then the life of the kidnapped person is an important “leverage” to obtain money, so the perpetrator is not willing to lose this leverage. Once the perpetrator kills the kidnapped person, it can be seen that the criminal intent has shifted from “seeking money” to “killing” and the right to life of others has been upgraded to the main legal interests to be infringed on. It seems more appropriate to characterize the act as intentional homicide in such cases.

 

On this basis, we can transfer the aggravated result of intentionally causing death to criminal legislation, and all of these crimes should be punished as intentional homicide so as to adjust the statutory maximum penalty of the crime to life imprisonment or lighter penalties. As a matter of fact, the legislative approach of transferring defined in the Criminal Law of our country takes the transformed crime as an appropriate example, which has been frequently embodied in the Criminal Code of 1997. For example, according to Article 238 of the Criminal Code of 1997, in the process of illegal detention, those who use violence to cause disability or death shall be convicted and punished in accordance with the provisions of Articles 234 and 232 of the law. This legislative approach can help further reduce the number of crimes punishable by death. Through the flexible application of this legislative method, we can not only completely abolish the death penalty provisions for ordinary violent crimes other than intentional homicide, but also share the actual path of abolishing and reducing the death penalty with many countries. This can help us better align the applicable conditions of the death penalty in the general provisions of our Criminal Law with the applicable standards of the death penalty for the most serious crimes in international human rights conventions. Although this practice cannot rule out the possibility if the perpetrator being sentenced to death, it can greatly reduce the number of crimes punishable by death in our Criminal Law, especially those violent and fatal crimes, avoid unnecessary human rights disputes, and further maintain our good international image. Therefore, this practice is of immeasurable legislative value.³¹

 

 

As the last resort after the death sentence is determined, pardon plays an important role in controlling the death penalty. Giving those sentenced to death the right to apply for a pardon is not only a requirement of international human rights conventions but also in line with the basic spirit of the amnesty system in China’s Constitution. We, the authors, believe that China should establish a death penalty pardon system with Chinese characteristics on the basis of fully considering the actual situation of the country and adhering to human rights development with Chinese characteristics. At present, the development of the death penalty pardon system in China should be carried out around the existing amnesty system, through the refinement and improvement of the system to provide a feasible path for those sentenced to death to exercise the right to seek pardon. Specifically, in the application for amnesty of the death penalty, the right to seek pardon should be given to all criminals sentenced to death and should not be restricted by the nature of the crime, the harmful consequences of the crime, and the subjective malignancy of the perpetrator, which is based on the requirement of equal protection of the right to life. The following factors can be taken into consideration in the application of a death penalty amnesty: (1) although the crime is extremely serious objectively, the perpetrator has reformed and shows true repentance; (2) the perpetrator has made great contributions to the country (the determination of contribution can refer to the conditions of the last two national amnesties); (3) whether the death penalty is imposed or not is controversial within the public security, procuratorial and judicial organs, especially between the courts of the first and second instance; (4) the victims or their close relatives strongly demand that the death penalty not be imposed or executed; (5) during the trial of the case, the judicial organs are greatly influenced by public opinion, which leads to an adverse tendency toward the defendant. In terms of the procedure of the death penalty amnesty, we can borrow the practical experience of the two amnesties in the new era, advocate the combination of individual application “from bottom to top” and state decision of amnesty “from top to bottom” with the individual application as the basis. It should be pointed out that the Constitution of the People’s Republic of China grants the Standing Committee of the National People’s Congress the power to decide on amnesty, so within the Standing Committee an “Amnesty Committee” specializing in amnesty affairs can be established to be responsible for accepting applications for amnesty from those sentenced to death at any time. A person sentenced to death may apply to the “Amnesty Committee” for amnesty after the judgment of the second instance has been made. The “Amnesty Committee” is not limited by the time for examining and deciding on amnesty, nor does it affect the proceeding of the death penalty review procedure of the Supreme People’s Court. However, before the “Amnesty Committee” makes the decision to approve or reject amnesty, the actual execution of the death penalty should be suspended.

 

 

In the aspect of the procedural control of the application of the death penalty, we advocate that the conviction stage of the death penalty cases should be separated from the sentencing stage. The sentencing of the death penalty cases can become an independent stage after conviction. A new collegial panel can be formed to hear and decide whether to apply the death penalty and the way of execution. The rationality of this separation lies in that, on the one hand, it can overcome the inherent views formed by judges in the conviction stage, which affects the objectivity of sentencing and ensure the impartiality of the final judgment results. On the other hand, it is helpful for the prosecution and the defense to cross-examine the evidence related to sentencing, for the collegial panel to fully listen to the opinions and reasons expressed by both sides on sentencing issues, to strengthen the status of sentencing in the trial, to promote the standardization of sentencing in the People’s Court, and to maximize the function of sentencing procedure in restricting the application of the death penalty. To be more specific, first, a collegial panel still needs to be formed in the sentencing stage. The size of the collegial panel is the same as that in the conviction stage, but the members participating in the conviction stage shall not participate in the trial of the same case in the sentencing stage. Second, the trial in the sentencing stage is still composed of court investigation, court debate, and the defendant’s final statement, but the collegial panel will no longer examine the facts and evidence related to the conviction. The prosecution and the defense can only cross-examine the evidence related to sentencing and express their opinions on sentencing issues, and the defendant can only make a final statement on sentencing affairs. Third, the sentencing stage of the death penalty cases is not an independent criminal case trial procedure, but an integral part of the trial proceedings of the case. In other words, the first and second instance procedures of the death penalty cases contain sequential conviction and sentencing stages. Except for the different members of the collegial panel and the scope of the trials, other procedural matters are dealt with in accordance with the provisions of the Criminal Procedure Law on the trial procedure. Fourth, in the allocation of judicial responsibility, the responsibilities of the panel members in the conviction stage and the sentencing stage are separated from each other. Of course, the establishment of this system inevitably involves the fairness and efficiency of the distribution of judicial resources. However, based on the irreversibility of the consequences of the application of the death penalty and the standpoint of respecting life and protecting human rights, the defendant in the death penalty cases should be given more adequate procedural protection and relief.

 

In addition to separating the conviction and sentencing stages of the death penalty cases, we should also standardize the reasoning of judgment documents in the death penalty cases, give full play to the procedural control function of reasoning over the application of the death penalty, and the interpretation function of judgment results in the death penalty cases. Specifically, the following aspects are included: First, the reasoning of the judgment documents of the death penalty cases should still include the reasoning of conviction and sentencing, especially the use of independent paragraphs to show the facts, evidence and reasons for applying the death penalty. Second, in terms of the content of reasoning, we should not only respond to the sentencing recommendations of the public prosecution organs one by one, but also make an in-depth analysis of the opinions and views of the defendants and their defenders in a disadvantaged position, and give detailed and targeted explanations on whether to adopt them. Third, when there are conflicting circumstances of sentencing, we should analyze the role of each circumstance of sentencing one by one, and examine whether the defendant has met the overall standard of “extremely serious crimes” based on considering the role of various circumstances in the discretion of the death penalty. Fourth, in the process of reasoning, the facts, evidence and law of sentencing should be effectively combined to ensure the consistency of evidence identification and sentencing facts, and the consistency of sentencing facts and law application, so as to form a strict logical system. Fifth, in the process of reasoning, we should actively respond to social concerns, especially in cases representing general concern and strong public feelings, and pay more attention to reasoning in a language and way acceptable to the public, so as to promote the appropriate understanding and acceptance of China’s death penalty policy, which is also the proper meaning of the concept of human rights protection.

 

 

The death penalty is a legislative and judicial issue within the sovereignty of a country, and the international community has not reached a consensus on the preservation or abolishment of the death penalty. China’s current policy of “preserving the death penalty but controlling the death penalty strictly” is basically in line with the human rights concept of restricting the death penalty and strictly controlling the application of the death penalty in international human rights conventions, which profoundly demonstrates the balance between human rights protection and the maintenance of the overall social order. China’s policy is the product of combining the universality of human rights with China’s reality and is in line with China’s current national conditions and human rights situation. It is an important part of human rights development with Chinese characteristics. Of course, with the continuous improvement of the level of economic and social development, China’s national conditions and human rights situation both are in a dynamic process of continuous improvement, and the death penalty policy should also develop toward the goal of complete abolishment at the right time, which requires continuous efforts of reducing the death penalty crimes at different levels across various stages. When exploring the relationship between the death penalty and human rights in China, the reality of China’s national conditions and the development of human rights in the specific historical period should both be considered, and “human rights” should never be used as a tool to denounce and derogate China’s death penalty policy.

 

(Translated by SU Yilong)

 

* YIN Jianfeng ( 阴建峰 ), Professor and Deputy Dean of Law School of Beijing Normal University.

 

** ZHOU Kai ( 周恺 ), Postgraduate student of Law School of Beijing Normal University.

 

1. the Explanatory Statement of the Chinese Delegation Before Action on the Draft Resolution on the Issue of the Death Penalty at the 48th Session of the Human Rights Council (A/HRC/48/L.17/Rev.l), available on the website of the Permanent Mission of China to the United Nations Office at Geneva and other international organizations in Switzerland, accessed November 10, 2021.

 

2. People’s Daily Commentator, “Promoting the All-round Development of Human Rights”, People’s Daily, September 10, 2021.

 

3. Xi Jinping, “Speech at the 50th Anniversary of the Restoration of the Legitimate Seat of the People’s Republic of China in the United Nations”, People’s Daily, October 26, 2021.

 

4. Xi Jinping, “Unswervingly Follow the Path of China’s Human Rights Development and Better Promote the Development of China’s Human Rights Cause”, People’s Daily, February 27, 2022.

 

5. Zhao Bingzhi, “Chinese Criminal Justice in the Vision of the Criminal Policy of Tempering Justice with Mercy”, Journal of Nanchang University (Humanities and Social Sciences) 1 (2007).

 

6. Zhao Bingzhi and Zhang Weike, “Tradition and Modernity: The death penalty Reform and the Change of Public Concept of Humanity”, Contemporary Law Review 2 (2016).

 

7. Chen Yonghong, “A Theoretical Misunderstanding: The Death Penalty Violating Human Rights — The Death Penalty from the Perspective of Constitutional Law”, Law Review 6 (2006).

 

8. United Nations General Assembly Resolution A/RES/62/149, 62nd session, adopted on the report of the Third Committee (A/62/439/Add.2), available on the United Nations website, accessed November 13, 2021.

 

9. United Nations website (Conventions and Declarations), accessed November 10, 2021.

 

10. Qiu Xinglong, “From Belief to Human Rights: The Origin of the Abolishment of the Death Penalty”, Law Review 5 (2002).

 

11. Feng Jun, “The Death Penalty, Criminals, and Enemies”, Peking University Law Journal 5 (2005).

 

12. Li Shi’an, “On the Death Penalty and Human Rights”, Journal of Renmin University of China 3 (2008).

 

13. Yang Dunxian and Chen Xingliang, “Preservation or Abolishment of the Death Penalty and Human Rights Protection”, Peking University Law Journal 6 (1991): 61.

 

14. Chen Yonghong, “A Theoretical Misunderstanding”.

 

15. the Explanatory Statement of the Chinese Delegation Before Action on the Draft Resolution on the Issue of the Death Penalty at the 48th Session of the Human Rights Council (A/HRC/48/L.17/Rev.l), available on the website of the Permanent Mission of China to the United Nations Office at Geneva and other international organizations in Switzerland, accessed November 10, 2021.

 

16. Zhao Bingzhi, Research Review of General Introduction to Criminal Law (1978-2008) (Beijing: Beijing Normal University Press, 2009), 488-489.

 

17. Jia Yu, Criminal Law (Volume I: Introduction) (Beijing: Higher Education Press, 2019), 348.

 

18. Gao Mingxuan and Lou Bokun, “Ways to Reform Life Sentence: An Alternative to the Death Penalty”, Modern Law Science 6 (2010)

 

19. Guan Jindong, “Execution of the Death Penalty by Injection in China”, People’s Court Daily, September 14, 2001.

 

20. Chen Changyun, “Yunnan: Comprehensively Promoting the Execution of the Death Penalty by Injection”, Workers’ Daily, March 4, 2003.

 

21. Yin Jianfeng, “Rational View of the So-called ‘Spending Money to Buy Life’”, Legal Daily, March 10, 2010.

 

22. Zhao Bingzhi and Yin Jianfeng, “Discussion on the Gradual Abolishment of the Death Penalty for Drug Crimes in China”, Law Science Magazine 5 (2013).

 

23. Yin Jianfeng, Research on the Modern System of Amnesty (Beijing: Chinese People’s Public Security University Press, 2006), 234.

 

24. Yin Jianfeng and Huang Jingye, “Actively Exploring the Policy Path of Restricting the Application of the Death Penalty: Summary of the Symposium on ‘Policy Path of Restricting the Application of The death penalty’”, Legal Daily, March 13, 2013.

 

25. Zhao Bingzhi, “On the Reform of China’s the Death Penalty System in the Era of Globalization: Challenges and Response”, Jilin University Journal Social Sciences Edition 2 (2010): 48.

 

26. Lu Jianping, “The Scientific Expression of the Death Penalty Policy”, Peking University Law Journal 3 (2015): 615.

 

27. Yin Jianfeng and Huang Jingye, “Actively Exploring the Policy Path of Restricting the Application of the Death Penalty”.

 

28. Shi Yan’an, “Practice and Reflection on Alternatives to the death penalty with Summary Execution”, Science of Law (Journal of Northwest University of Political Science and Law) 2 (2017): 191.

 

29. Yin Jianfeng and Ding Ning, “Reflections on the Reform of the Death Penalty in China from the Perspective of Constitutionalism”, Criminal Law Review 3 (2012): 150.

 

30. Yin Jianfeng et al., “Exploration on the death penalty of Crime of Manufacturing and Selling Shoddy Commodities”, Law Science Magazine 11 (2012).

 

31. Yin Jianfeng, “On the Legislative Reform of the death penalty for Intentional Homicide”, Journal of Beijing Normal University (Social Science Edition) 1 (2011).