China Against the Death Penalty (CADP)

China Against the Death Penalty (CADP) is the first NGO that aims at promoting the

abolition of the death penalty in mainland China. It was initiated by Chinese human

rights lawyer Teng Biao.

CADP aims at abolishing the death penalty in China, through legal aid, discussion

conferences, citizen education, documentary and movie-screening, most importantly,

we will do independent research through collecting and analyzing specific death

penalty cases in China and publish annual reports on the death penalty in China. In

addition, CADP will also take an active part in correcting wrongly-sentenced death

penalty cases through our legal aid program, promoting legal reform and ultimately

abolish death penalty in China.

China is the country that uses capital punishment most frequently. Based on the

statistics supplied by Amnesty International, at least seventy percent of executions

take place in China. This number could be much higher, up to ninety percent. In

Chinese criminal law there are 55 capital offenses, violent and nonviolent. From the

cases that are exposed in domestic media, several people who were convicted, even

executed, turned out to be innocent, including Nie Shubin in Hebei Province, Teng

Xingshan in Hunan Province, HugeJiletu in Inner Mongolia and Zhao Zuohai in Henan

Province.

According to the experience of a number of countries around the globe which have

already abolished the death penalty, this work requires great effort on the legal,

political, cultural and ideological front, long-time communication of ideas and thoughts,

and specific social movements. It also requires us to start working when most people

in the society still cannot accept the idea of abolishing the death penalty.

To abolish the death penalty in China requires long-term commitment, yet there are

some pressing work needs to be addressed. For instance, CADP is providing legal aid to

the Chen Guoqing case in Hebei Province; Huang Zhiqiang case in Jiangxi Province;

Gan Jinhua case in Guangdong province; Lin Ruiqiang case in Guangdong province and

many other obviously wrongly-sentenced death penalty cases. In all these cases, the

accused were forced to plead guilty under extremely cruel torture, but the court made

the decision despite serious defects in the evidence.

Our Main Activities

■Legal aid

Providing legal defense or legal aid to defendants in death penalty cases, especially in

cases that are miscarriages of justice, that involve the use of torture or that have

procedural defects, or that in which the defendant suffers from mental illness.

■Research reports

Carrying out independent research on the issue of the abolition of death penalty.

Current research projects include: the implementation of the Supreme People’s Court

review of death penalty cases; research on non-violent crime death penalty, the

causes of wrongly-convicted death penalty cases and other ordinary death penalty

cases. We will write a series of “China Death Penalty Annual Reports” to summarize

and analyze data on the situation of the death penalty in China, report specific

legislative and judicial reforms on the death penalty in China, and present our

legislative and policy suggestions.

■Citizen education

Cooperating with the media, we plan to carry out discussions or debates on the

abolition or moratorium on the use of the death penalty. We will educate the public on

the issue in the form of discussing conferences, documentaries, movie-screening and

public debates. We will edit, translate, publish related research reports, brochures and

media works.

■Professional website:

Build a professional website on the issue of the death penalty, collect and publish

research reports, death penalty cases, papers, and news on China’s legal reform in this

area and international legal news related to the death penalty.

China has started; we will always be committed to the abolition cause. And we hope to

share your insight and experience on the death penalty issue and add to your

knowledge on the progress of China through our own effort. Your concern and help are

extremely welcome. If you wish to have any further contact with us, please contact us

at the following address;

http://www.cadpnet.org/

china.cadp@gmail.com

tengbiao89@gmail.com

Dr：Teng Biao, Human rights lawyer, Lecturer of Law at China University of Political

Science and Law，Visiting scholar at the Chinese University of Hong Kong,

（0086）18938950228；（ 00852）69980640

Liang Xiaojun：Human rights lawyer, Beijing Daoheng Law Firm

（0086）13501092285

China Against the Death Penalty

Report 2012

Introduction

In ancient society, the death penalty was seen to hold an important position in both

Chinese and foreign legal systems. However, nowadays more and more people in modern

society consider the death penalty to be a form of murder institutionalised by the state.

Not only is it seen as anti-humanitarian, it also fails to act as a deterrent to crime. The

global movement against the death penalty is growing rapidly however the use of the death

penalty in China remains particularly prominent. Regarding the number of capital crimes,

the number of death sentences and the actual recorded executions, China continues to

rank as the world number one execution state.

The modern legal system in China developed relatively late having followed a turbulent

journey alongside the political movements in the latter half of the 20

century. At that time

the concept of class struggle was particularly prevalent and the idea of totalitarianism was

still in practice. To this day malpractice is still widely present in the Chinese judicial system

and includes the frequent occurrence of unlawful verdicts. Sentences tend to be harsh and

abuse of the death penalty is witnessed far and wide.

The inevitable trend of human society is to completely abolish the death penalty. In China,

a growing number of people recognise that the death penalty should be used with caution

and eventually become completely eradicated.

In order to achieve this goal, efforts must be made at a legal, political, cultural and

ideological level. The continuous exchange of ideas and a sustainable social movement are

also needed. Furthermore work on this project should be initiated during a time framework

where the majority of people are not adverse to or accepting of the death penalty. Even

though we have very far to go, strong efforts must be made early.

China Against the Death Penalty (CADP), an organisation established in 2010 in Beijing, is

dedicated to the reduction of injustice, the reversal of unlawful verdicts, the promotion of

public discussion and reflection on the death penalty, the scrutiny of policies and laws

involving the death penalty, and the establishment of a death penalty observation network

within civil society. Its ultimate goal is to abolish the death penalty completely in China.

This report is a review of and reflection on the situation of the death penalty from the

perspective of CADP.

This is a translation of an edited version of the 2012 Report produced by China Against the Death Penalty for a readership

in China.

The original report in Chinese was in three parts. Part I, translated here, outlines the legal

system and its application in relation to the death penalty. Part II introduces the use of the

death penalty review system following the Supreme People’s Court’s resumption of its

power to review death sentences on January 1

, 2007. Part II also analyses the influence

of the death penalty review system on the new criminal procedure law that will come into

effect in 2013. Part III introduces a number of death penalty cases.

If you would like further information on some of the death penalty cases mentioned in the

Chinese report, please contact us via China Against the Death Penalty (www.cadpnet.org).

Overview of the Death Penalty in China

1. The Criminal Justice System

1.1 The Judicial System is not Independent

Although the Chinese Constitution states that the courts exercise their powers

independently, it is in effect far from being an independent judicial system. In fact, there is

a lack of independence outside of the judicial system as well as within the courts

themselves. There are a few influential factors which hinder their independence:

(A) The CPC (Communist Party of China) Committee and the Politics and Law

Commission. China is strictly still a one party state. The Communist Party not only

controls the army, legislature and executive, but also exercises its control over the judicial

system through the Politics and Law Commission system. Almost all judges are CPC

members and this therefore affects the independence of their judgments. The Politics and

Law Commission system derives directly from the tradition of the communist party to

provide direction to political and legal work. Although there have been some changes made

to the role of the commission since 1949, as well as changes to the way in which they

influence the work of the police, the procuratorate and the court – from “directly interfering”

to “summoning and guiding”, all levels of the commission still get involved in individual

cases that come before the courts. Furthermore, all death penalty cases are regarded as

“hard cases”. Police chiefs usually act as secretaries of the commission at the same

administrative level and subsequently it is common for the investigating department to

interfere with or control those who determine guilt and sentencing.

(B) The administrative bodies. The Constitution states that courts are at the same

administrative level as the government. However as scholars have pointed out, the reality

is that courts are far from achieving this kind of status. “In fact, high courts are regarded

as at the bureau level, intermediate courts at the division level and county courts the

section level. So for example, important documents need to be distributed to the county

level administration. But they cannot be given to the county level courts because the courts

are actually at the section level.” More importantly, courts are unable to fully exercise their

authority since their personnel, property and resources are all under the control of local

government. Some government officials are able to appoint or dismiss court staff at will.

The people’s court can be understood as a department of the people’s government of the

same level; responsibility for human resources and funding is localised. Without

democratic elections and a free media to constrain public power administrative bodies in

practice interfere with the judicial system.

People cannot directly vote for the People’s Representatives above county level and even at

county level voting is fairly problematic. Elections are manipulated by the government and

the few candidates who are brave enough to enter as independent figures almost never

succeed. If we take a closer look at the identity of the people’s representatives at different

levels, at least 60% of them are government officials. All levels of the People’s Congress

(and its standing committees) are part of the power system of the Party State. Its influence

on the judicial system is similar to that of the administrative bodies for example, the courts

must report their work to the People’s Congress.

(D) The Procuratorate. The procuratorate system, which is based on the Soviet Union

model, also contrasts with an independent judicial system. Procuratorial power, as part of

the power of the executive, is the power to investigate and detain; a power which should be

under judicial review. However, in the Chinese judicial system, procuratorates have the

right to supervise the work of judicial bodies which is a violation of the judicial power.

(E) Higher courts. In actual judicial practice, there is a custom of higher courts giving

instructions to lower courts, with the latter reporting to and consulting the former. Lower

courts ask for higher courts’ opinion on verdicts and higher courts can also initiate

“guidance” to lower courts when cases are “significantly influential”. Where there are

particularly difficult aspects of specific cases, lower courts can seek an opinion from the

Supreme People’s Court through provincial level courts. Opinions given by the Supreme

People’s Court, known as “legal explanations”, have become the norm in the Chinese

judicial system. The relationship between courts is still similar to that of different levels of

administrative bodies.

(F) Chief justices, chief judges and judicial committees. Within the court system

itself, judges do not have an independent position. Chief justices, chief judges and judicial

committees exert direct influence on specific cases through official and unofficial means

such as indicating various assumptions and discussing cases.

(G) Other elements. The above mentioned elements are often intertwined with the

Chinese “culture of favours” and “guanxi (contacts) networks”. Relatives, friends,

classmates, colleagues and acquaintances can all express their own opinion in different

ways to judges or officials. They can therefore influence and interfere with the judicial

system. The media on one occasion revealed a short note within a file written by the

ex-chief judge which was passed to the incumbent deputy chief judge. Most commonly

interference is hinted at in phone calls, voiced during meetings or over dinner. It is

therefore difficult to prove and provide evidence of this kind of influence.

All of the above illustrates ways in which indirect influence over judges can lead to the

judgment being reached before the defendant has had a fair trial. The legal requirements

of having legal representation, a defense hearing and presenting evidence are formalities

rather than properly functioning elements of the legal system.

1.2 The Relationship between the Public Security Bodies, the Procuratorates and

the Courts

According to the Chinese criminal procedure law, the majority of criminal cases should be

investigated by the public security agencies. Their role is to detain, investigate, interrogate,

and formally arrest suspects. The procuratorates examine and prosecute, raise charges,

investigate criminal cases such as those concerning corruption and bribery, and legally

supervise the trials carried out by the courts. The courts try and sentence suspects.

However, the Chinese criminal judicial practice is very much focused on investigation, and

public security bodies have too much power. Although the courts should be in a central

position to act as a referee, they often in practice do not have enough power. Scholars

describe the relationship between the public security bodies, the procuratorates and the

courts in the Chinese criminal judicial practice as a “flow process”. This “flow process” is

strongly built into the system as one of the major procedural principles in the criminal

procedure law. Furthermore it is stated that “In conducting criminal proceedings, the

people’s courts, the people’s procuratorates and the public security bodies should share the

responsibility, cooperate with and restrain each other in order to accurately and effectively

enforce the law.” The three independent and unrelated stages – investigation, prosecution

and judgment, are like three production processes in a factory. The public security body,

the procuratorate and the court are likewise the three “operators” on a production line.

They work together to achieve the task of attacking crime and punishing criminals through

their relaying of work, their cooperation with each other and mutual complementarity. This

“flow process” structure leads to the lack of a fair judicial review before the judgment, and

the weakening of the power of the court in this process. Before the case comes to court, the

procuratorate and police have the authority to decide on compulsory measures including

arrest, detention, search, investigation and examination, without approval or review by an

impartial judicial organisation. Citizens who are treated unfairly cannot get effective

judicial remedy. “The lack of a judicial referee system leads directly to the exacerbation of

the position of the prosecuted, the unlimited expansion of the power of the procuratorates

and the police as well as the abuse of their power.” (ref) Also, during the trial and

sentencing stage, “all principles and systems set to guarantee justice in court trials, such

as the collegial system, the challenge system, the two-tier trial system, the open trial

system, the defense system and cross examination, exist in name only, and have lost the

value of their existence and supposed procedural functions.”

1.3 Evidence System

Evidence rules are very important to the criminal justice system. Unfortunately there is no

single, unified evidence law in China, and the rules of evidence in the criminal procedure

law are fractured. The “two rules of evidence” which came out in 2010 (“Provisions on

Several Issues concerning the Examination and Judgment of Evidence in Death Penalty

Cases ” and “Provisions on Several Issues concerning the Exclusion of Illegal Evidence in

Criminal Cases” approved by five bodies including the Supreme People’s Court and the

Supreme People’s Procuratorate) and the new criminal procedure law in 2012 have to a

certain degree improved the treatment of evidence. However the problems of lagging

legislation and enforcement difficulties still remain. Criminal justice guidance still places

more weight on punishment and less on safeguarding human rights; more on substantive

truth, less on procedural justice.

1.4 The Legal Profession

The legal profession in China was almost totally ruined during the “cultural revolution”. It

was not until the enactment of the “Interim Regulation on Lawyers” in 1980 that the

profession was re-instated. In 1986, the national lawyers’ qualification exam was

introduced and the All Lawyers’ Association was established. Since the Lawyers Law of

1996 the prospects for the bar exam and law firms have gradually improved. This has led

to a steady increase in the number of qualified and practicing lawyers. The performance

and quality of lawyers in China has also improved, whilst the role they play in public life has

become more important. However, due to the structural outline there are still huge flaws

within the system. To list the major ones: (A) The profession is not self-governing.

Although there are several tiers of lawyers’ associations in China none of them enjoy real

independence in practice. They are all affiliated to the local departments of justice; it is

compulsory for all lawyers to be affiliated to a lawyers’ association in which they cannot

elect any representation. Nor can lawyers independently hold exams, discipline members

or review the quality of lawyers. (B) The practice of annually inspecting lawyers’

licenses. The practice of annually inspecting lawyers’ licenses is like the sword of

Damocles hanging over all lawyers. Many cases have shown that the authorities can

deprive a lawyer of their right to practice simply by not allowing them to pass formal

inspections. Alternatively, they can overtly threaten human rights lawyers and prevent

them from presenting “sensitive cases”. (C) “Perjury by lawyers”. Article 306 of the

criminal law relating to perjury is the only article identifying lawyers as potential

perpetrators of a crime. The maximum sentence under Article 306 is seven years. This

legislation has led to the arrest of lawyers with a chilling effect on the enthusiasm of

lawyers to undertake criminal cases. Consequently, many criminal cases cannot find a

lawyer to represent them in court and many lawyers avoid any involvement. (D) Lawyers’

rights including the right to see their client, have access to the relevant files,

investigate a case for evidence, cross examine in court and make defense

statements, are often not guaranteed. Lawyers can be restricted in court from making

lengthy arguments, prevented from speaking and even barred from court in particularly

sensitive cases. Trials for criminal cases are usually concluded within 1-2 hours, even for

the most serious and complex death penalty cases. Based on our experience representing

clients subject to the death penalty, the majority of cases were dealt within 2-3 hours.

Trials are so short not only because witnesses are rarely called and limits are placed on the

ability of defense counsel to speak, but also because trials are largely just for show. The

real party deciding the verdict is not the judge sitting in the court, but organisations or

individuals external to the court. As a result there have been cases where a defendant

subject to capital punishment has been refused legal representation during a trial.

II. Problems Concerning Policy and Practice of the Death Penalty

2.1 “Strike Hard”

Some scholars believe that Mao Zedong and his successors held a “kill less and kill

cautiously” policy towards the use of capital punishment. We believe that although they

publicly adhered to the rule to “kill cautiously”, all of them explicitly expressed their

disapproval of abolishing the death penalty in China. In judicial practice, the death penalty

is so widely used that the statistics have to be kept a state secret. Worse still is that the key

policy-making body is obsessed with the power of heavy sentences and capital punishment

to act as a deterrent for crime. There is no consideration of human rights in policymaking

and political movements such as “Strike Hard” on crime and statements that “homicide

cases must be solved” appear repeatedly in criminal policies. During the years of Strike

Hard campaigns the use of the death penalty increased and many defendants charged with

a crime punishable up to a death sentence were given the maximum sentence of

immediate execution. Some minor offences, including theft, were also met with capital

punishment and innocent citizens were unfairly executed.

Since the enactment of the criminal law and criminal procedure law in 1979, three

large-scale “Strike Hard” campaigns took place in 1983, 1996 and 2001. The fourth “Strike

Hard” took place as recently as June 2010. Alongside these large scale crackdowns, there

have also been numerous smaller, specific crackdowns. However following protests from

academia and an enhanced social awareness of the rule of law, the militarization and

political movement characteristics of “Strike Hard” have gradually declined.

“Strike Hard” campaigns are known to be extremely harmful to the rule of law and the

rights of Chinese citizens. Take the 1983 crackdown as an example: the National People’s

Congress passed the “Decision on Severely Punishing Criminal Elements Seriously

Compromising Social Order” therefore raising the maximum sentence of some crimes to

the death penalty. The “Decision of the Procedure for Prompt Adjudication of Cases

Involving Criminals Who Seriously Endanger Public Security” reduced the period of appeal

from 10 days to 3 days. These two pieces of legislation led to cases whereby people

charged for indecent assault were sentenced to death. Through these legislations, the

police, the procuratorates and the courts worked together to violate basic rights of the

defendants and to ignore legal procedures. During the 1983 crackdown, the power to

implement the death sentence was also given to county level courts. Judges as well as

communist party leaders at county level were permitted to give out the death sentence. A

review of death penalty cases and the power given with it was taken up by provincial level

courts and was not taken back by the Supreme People’s Court until as late as 2007. From

August 1983 to July 1984, police across the country arrested 1,027,000 criminals who

committed murder, arson, robbery, rape or sexual offenses. The procuratorates prosecuted

975,000 of them and the courts sentenced 861,000. Twenty four thousand were given the

death sentence. Some scholars estimate that during the 1983 crackdown about 74% of

those sentenced were executed immediately, and in some courts the figure was as high as

85%.

2.2 “Homicide Cases Must be Solved”

On November 3

to 5

2004, the Ministry of Public Security held a national conference

in Nanjing on solving homicide cases. The national target of “solving all homicide cases”

was established at this conference with the aim of attacking all kinds of crime through

solving homicide cases. It was stated that by the end of 2007, the target of “nationally

reducing the number of homicide cases, escaped murderers and raising the rate of solving

homicide cases” must be achieved. Blindly pursuing the rate of case solving, this policy was

not only unscientific and against the spirit of the rule of law, but also against the principle

of human rights. Consequently, there was a big increase in unlawful arrests, trials and

verdicts during this period. Police who were unable to solve cases faced pressure from both

their bosses and the general public. Under this pressure, they detained innocent citizens

and extorted confessions and evidence through the use of torture. In order to achieve

performance targets some police arrested people with mental illness as scapegoats for

various crimes.

2.3 Lawyers and Judges in the Death Penalty Cases

According to the criminal procedural law, if a defendant subject to the death sentence does

not have a lawyer, the court should provide legal aid lawyers. However, due to structural

flaws in the legal system, lawyers can only play very limited roles in criminal cases. Article

306 of the criminal law – “Perjury of lawyers”, means lawyers are put constantly at risk

when investigating and gathering evidence. In criminal cases only 10% (or even less) of

witnesses attend hearings and investigators and expert witnesses do not appear in court

for cross examination. The prosecutor usually reads a written statement in court and there

is a lack of cross examination. This largely restricts the lawyers’ right and ability to defend.

Judges also tend to have a biased view towards criminal cases. In producing verdicts, many

Chinese judges do not follow a standard procedure, which means that their verdicts lack

legal reasoning. They also very often intentionally omit evidence provided by the

defendants and certain key points that can be used in a defense. During a second instance

trial of a death penalty case hearings are not always carried out and verdicts are based on

a file with a lack of regard to the arguments of both the prosecution and defense. It was not

until 2006 that this practice was amended.

2.4 Extorting Confessions by Torture

Although extorting confession by torture is prohibited by law, in reality it is still a common

phenomenon. Prior to the 2010 “Provisions on Several Issues concerning the Examination

and Judgment of Evidence in Death Penalty Cases” there was almost no clear operational

rules of evidence. Evidence through torture was generally accepted by judges. Judges

normally refused to acknowledge the defendant’s claims and evidence of torture and

investigators relied heavily on oral confessions from the suspect as the basis of their case.

Police and procuratorates who use torture are not likely to be prosecuted. Furthermore

even if they were prosecuted they were likely to face a light punishment. According to the

regulations, “a witness statement obtained by illegal means such as violence and coercion,

cannot be used as the basis for determining cases” (Article 12) and “the defendant’s

statement obtained by illegal means such as torture and coercion cannot be used as the

basis for determining cases” (Article 19). There is therefore no specific regulation on

material evidence obtained by illegal means. China, despite having officially ratified the

“Convention against Torture and Other Cruel Inhuman or Degrading Treatment or

Punishment” in 1988 and agreeing to be reviewed by the United Nations Committee

Against Torture, cannot produce evidence to confirm a reduction in the use of torture.

2.5 Conduct of the Death Penalty.

An administrative agency, prisons, has responsibility for implementing both fixed term

imprisonment and life sentences; executions, however, are carried out by the court. This

confusion between judicial and administrative powers has been challenged by some

scholars who have suggested “a separation of sentencing and execution” powers, in order

to restrict the use of capital punishment. From 1949 the execution of death row criminals

had always been by firing squad. After the amendment of the 1997 criminal procedure law

the courts started using lethal injections alongside firing squads. However, since the use of

lethal injections entails higher costs and equipment, and executed prisoners’ organs are

used for transplant procedures, execution by firing squad is still the most common method

of execution. Lethal injection is usually reserved for offenders such as high level

government officials, or those involved in very high profile cases. There is no equal

treatment with capital punishment. The 1997 criminal procedure law stipulates that “no

death penalty should be carried out in public”. This is an improvement to the previous

practice of parading the prisoner and then executing them by a public firing squad.

The illegal harvesting of prisoners’ organs deserves our attention. Huang Jiefu, deputy

minister at the Ministry of Health said, “as there is a lack of voluntary donation, organs

from executed criminals have become a major resource for transplants…At the moment,

1.5 million patients need transplants urgently, however the organs available each year do

not even meet 1% of that need.” There is also another report showing that “for a long time

executed criminals provided over 90% of the organs.” According to the statistics in 2009

from the Ministry of Health, over 65% of organs for transplant derive from executions.

Other reports suggest that organs are taken without the consent of prisoners themselves.

Because of the systematic problems in criminal legislation, policy and judicial practice

outlined above, miscarriages of justice in capital punishment happen frequently. Reported

public instances include: Nie Shubin, Teng Xingshan, Hugejiltu, Cao Haixin, She Xianglin,

Du Peiwu and others. These are cases where innocent citizens have been unlawfully or

unfairly sentenced to death and executed. Furthermore in some cases the death sentence

has been given when there are still over 20 major doubts surrounding the evidence in each

case. An example of this is the case of Gan Jinhua. In some justifiable defense cases or at

most over-defense cases, defendants are sentenced to death, such as in the Xia Junfeng

case. In other cases, the defendant may be mentally ill, yet the courts refuse to carry out

any forensic psychiatric examination; examples of such cases include the case of Qiu

Xinghua in Shaanxi, Zheng Minsheng in Nanping, Fujian, the Yang Jia case in Shanghai, the

Ma Jiajue case in Yunnan and the He Shengkai case in Guizhou. All the prisoners have

already been executed but both academics and the general public continue to have doubts

about the mental health of these defendants. The current forensic psychiatric examination

system in China is far from perfect.

III. Crimes Punishable by Death and Execution Statistics

3.1 Crimes Punishable by Law

There are 68 crimes punishable by death in the current criminal law legislation (1997), 24

of which are violent crimes and 44 which are non-violent. Of the non-violent crimes, 6 of

them concern endangering national security, 3 regard endangering public security, 16

disturbing the order of the socialist market economy, 10 concern soldiers violating military

duties, and the remaining nine concern theft, corruption, bribery, drug-related crimes and

organising prostitution.

In 2011, the NPC passed the “Amendment VIII to the Criminal Law of the People’s Republic

of China”, which removed the death penalty as a sentence for 13 non-violent economic

crimes. This has had a positive effort in restricting the overall amount of death penalty

sentences and is in line with modern development of the rule of law. This has been a big

step in reforming the Chinese death penalty system and was probably influenced by the

global movement against the death penalty.

It is, how ever, generally believed that the death penalty was seldom imposed in practice

upon these 13 non-violent economic crimes. It is mainly violent crimes such as murder,

intentional injury and robbery, or drug-related crimes that most commonly result in the

death sentence. However as the number of death penalties imposed on individuals is

regarded as a state secret, we do not know the exact figures and sentences given for each

crime.

3.2 Death Sentence Statistics

The number of death sentences has always been regarded as a top level state secret.

Indeed, the annual report given by the president of the Supreme People’s Court to the

National People’s Congress includes only the number of custodial sentences of 5 years and

above. This does not include numbers that could shed light on the death sentence. Scholars

generally believe that “the statistics surrounding the death penalty could cause damage to

national security because the number is too high.” According to an Amnesty International

report, the number of executions in China are as follows: in 2000, at least 1000 people in

China were executed; 2002, 1060+ executed; 2005, 1770+ executed (and 8000 given the

death penalty); 2006, 2010+ executed (7500 to 8000 sentenced); 2007, 470 executed

and 1860 sentenced; 2008, 1718+ executed (7003 sentenced). These numbers are

commonly cited as authoritative data but Amnesty International has always emphasised

that the actual number of executions is likely much larger than those cited in the report. As

for the more recent figures for 2010 and 2011, Amnesty International no longer estimates

using their traditional methodology, but rather refers to “thousands of persons”. Some

other organisations and scholars have reached different estimates of numbers. At the 2007

World Congress against the Death Penalty, John Kahn stated that in the last ten years, at

least 100,000 people were executed whilst other human rights experts believe that

executions in China every year number around 10,000 to 15,000. After the Supreme

People’s Court reinstated its power to review the death penalty, the numbers being

sentenced and executed appear to have fallen but there are still no exact figures to verify

this. The Duihua Foundation stated in a recent report (December 2011) that since 2007,

the numbers of death sentences have halved. However there are still estimates that China

executes over 4000 people every year.

Crimes punished most commonly by the death penalty centre around five serious offenses:

murder, intentional injury, robbery, rape and drug offenses (production, smuggling and

selling). Again, the exact figures for death sentences by crimes, location and social class

cannot be obtained. Professor Chen Guangzhong once speculated that “Over 80% of death

penalty cases are for homicide.” According to the publicly published “Record of the People’s

Police of Hangzhou”, the armed police division of the Hangzhou Public Security Bureau of

Zhejiang province carried out 88 executions for the court in 1990, 65 in 1991, 64 in 1992,

and 58 in 1995; the annual average being 71. For the whole of Zhejiang Province, this

figure is estimated to be around 500. Lawyers estimate that in non-crackdown years, the

annual number of executions in Henan province was over 500, and during crackdowns this

figure could have been as high as 800. Following the same logic nationwide, it is highly

possible that the number of annual executions in China has been around 10,000 persons.

IV. Social Attitudes towards the Death Penalty and the Outlook for Abolishing the

Death Penalty in China

4.1 Social attitudes towards the death penalty

Very few surveys have ever been carried out in recent years on people’s attitude towards

the death penalty. Those which have been carried out have only been conducted on a small

scale. According to the Institute of Law of the Chinese Academy of Social Sciences survey

in 1995, of the 4983 completed questionnaires, over 95% of respondents supported the

death penalty. A survey of 1873 university students by the Northwest Politics and Law

University in 2003 suggested that 75.6% were in favour of retaining capital punishment.

The 2004 survey by the Law Faculty of Wuhan University showed 67.3% of respondents

stated that they “support” or “strongly support” the “death penalty system under the

current criminal law”, and 11.3% were “against” or “strongly against” it. More recently, in

2007-2008 the Max Planck Institute of Freiburg, Germany, carried out a survey in Beijing,

Hubei province and Guangdong province. The result showed that 57.8% of respondents

supported the death penalty and 14% were against it. When asked about their support for

the death penalty where an alternative punishment was available only 30.6% supported

retaining the death penalty and 40.5% supported abolition.

Without freedom of speech or information, doubt remains over the accuracy of surveys

based on opinion. For the general public in China, there are limited channels through which

they can learn about international movements that seek to abolish the death penalty. This

can be said to be the same for research into the effectiveness of capital punishment on

deterrence, and information on unjust and wrongful cases. There are also very few

in-depth discussions on the death penalty within education or in the media. However, given

enough information and freedom of discussion, the general public’s attitude towards the

death penalty may not be that far off from that in western countries. At present however,

there is still a wide base of support for capital punishment and so the abolition of the death

penalty is a long way off. Judging from the history and trajectory of many other countries,

the abolition of the death penalty does not need to wait until the majority of its people are

in support. Indeed most countries that abolished the death penalty did so without a public

referendum.

4.2 The Route and Outlook of Abolishing the Death Penalty

Evidence suggests that in the legal field, an increasing number of scholars are in favour of

abolishing the death penalty, with the majority thinking that the death penalty should be

abolished gradually rather than immediately. The most representative opinion is that the

death penalty should be completely abolished in China, but that this is not immediately

attainable. Therefore, the application of the death penalty should be gradually restricted.

Some scholars, such as Qiu Xinglong, Qu Xinjiu, He Weifang, Xiao Han and Teng Biao, are

in support of an immediate stop to the death penalty, whilst a small minority holds the view

that the application of the death penalty should be expanded.

Some scholars propose reducing the number of crimes punishable by death, particularly

non-violent crimes. Others propose restricting the application of the death penalty from a

judicial perspective, making stricter demands on the standard of evidence. More

specifically, some think the suspended death penalty should be applied in all death

sentences. Others however think that the legislation on life sentences, fixed-term

imprisonment and parole needs to be modified to broach the gap between the death

penalty and life sentences. There are some scholars who suggest abolishing the death

penalty for all crimes except murder suggesting that this is “the best restrictive plan on the

death penalty in a transitional period”. Some scholars give many suggestions for controlling

the death penalty, including abolishing the criminal policy of ‘Strike Hard’, compiling

sentencing guidance for the death penalty, limiting the situations in which the death

penalty is applied, and setting up a pardon system for death row prisoners. In a public

petition to the Supreme People’s Court on the case of Gan Jinhua, legal professionals

suggested that a three-tier trial system for capital punishment should gradually be

established and the time between sentencing and execution should be prolonged in order

to avoid the possibility of unjust and wrongful killings.

We believe that there are many ways in which the death penalty could be gradually

restricted in China. If the political and legal elite can reach a basic consensus, it is possible

that one or more ways of reducing the use of the death penalty could be achieved under

certain domestic and international conditions. The possible methods are:

（A） Halt the use of executions for 5 years. (The United Nations General Assembly

resolution on a “Moratorium on the use of the death penalty” in December 2007

suggested this.)

（B） Abolish immediate execution following death penalty convictions. A two-year

suspended death sentence could apply to all cases. The death penalty would

only be applied if criminals intentionally re-offend during the probationary

period. Alternatively, the proportion of suspended sentences should be greatly

increased. Suspended death sentences should in principle be applied to all with

immediate execution reserved only as an exception.

（C） First abolish the death penalty for all non-violent offences, then abolish if for

some of the less severe violent offences. Alternatively, following the opinions of

the general public, abolish it for all non-violent offences except corruption and

bribery.

（D） State clearly in legislation that the death penalty should not be applied in

situations where the victim was culpable, the offense was a crime of passion, the

offender was a first-time offender, the offender voluntarily surrendered and

other relevant considerations.

（E） Stop execution by firing squad, only carry out executions by lethal injection.

（F） State a minimum period to elapse between sentencing and execution, for

instance 6 years.

It is a trend of human rights progress and more humane punishment that the death penalty

should be abolished. Experience from many other countries indicates that in order to

achieve the goal of abolishing the death penalty, efforts must be made on a legal, political,

cultural and ideological level. A long-term exchange of ideas and a sustainable social

movement are needed to combat and abolish the death penalty during a time when it is

fully accepted and implemented in Chinese society. The way forward is going to be very

long, but efforts must be made early. The organisation” China Against the Death Penalty”

is working towards this goal. In China, the abolition of the death penalty is closely tied to

the political democratisation process. Social conflict is divisive under the current political

framework. There is a lack of effective supervision and restrictions of public power, and

with many problems in the criminal justice system it is difficult to abolish the death penalty.

However, with recognition of universal human rights, higher levels of education amongst

citizens, the ideological change of legal professionals and politicians, along with political

democratisation and social transition, there will one day be a China where the death

penalty no longer exists. We should persevere and work towards this goal in the future.