The Death Penalty and Its Reforms in China and Other Countries

Abstract

This chapter focus on the death penalty and its reform in China and other countries. Since 1949, China has had different death penalty policies in different phrases of its history. In the first thirty years, from 1949 to 1979, China’s implementation of its policy on carrying out the death penalty was cautious and strict. During these thirty years, there was no criminal code until 1979, and China was a “disorderly and lawless society”, although we can at least see that the application of the death penalty was accompanied by the expression “cautious and strict” in political documents. Even the first Criminal Law, which was adopted in 1979, only stipulated only 28 crimes punishable by death. It was considered by far the best code to be adopted in the history of China. When, in 1979, China launched its policy of opening up and reform, the whole of society underwent great changes and the crime rate dramatically increased. In order to control crime, China frequently adopted specific Criminal Laws and provided the death penalty for many crimes, which was considered an expansion of the execution legislation. China’s first step to reduce the use of the death penalty legislatively was in 2011, when the Eighth Amendment was adopted. This amendment removed the death penalty from 13 crimes. Then, in 2015, the Ninth Amendment was adopted and repealed the death penalty for 9 crimes. Currently, there are 46 crimes punishable by death. In the near future, China will gradually and strategically abolish the death penalty. This chapter also looks at death penalty reform in other states, considering, for instance, Japan and Indonesia as retentionist states, and death penalty reform in the abolitionist states in Europe, death penalty reform in Central Asia, and death penalty reform in the USA.

3.1 The Death Penalty System and Its Reforms in China

3.1.1 The Death Penalty Policies and Legislation: From 1949 to 2011

3.1.1.1 The Death Penalty Policies and Legislation in the Period from 1949 to 1979: The Policy on Execution is Cautious and Strict

In the paternalistic authoritarian regime of the Mao period, Mao and even the CPC did not have any conception of human rights and the execution legislation was not influenced by the CPC’s outlook on human rights at all. Meanwhile, there was no Criminal Code, except for some specific regulations; there thus was no systematic execution legislation; we can even argue that the death penalty was effectively a lawless punishment.

Human rights protection had in fact no any connection with legislation, and in particular, with execution legislation; however, we cannot ignore CPC attitudes towards, and policy regarding, the death penalty in the Maoist era; indeed, we can even claim that the attitude of both the CPC and Mao himself towards execution was more cautious and stricter than that of the post-Mao period. In Mao’s paternalistic authoritarian regime, the CPC’s most important policies, such as its death penalty policy, were normally promulgated through the Party’s or the national leaders’ speeches or reports, especially those of Mao himself. In what follows, therefore, we will trace the death penalty policy of that period, using some of Mao’s speeches or documents relating to capital punishment.

In 1951, in his paper, “the Party’s Mass Line must be followed in Suppressing Counter-revolutionaries (镇压反革命必须试行党的群众路线)”, Mao said that.

The number of counter-revolutionaries to be killed must be kept within certain proportions. The principle to follow here is that those who owe blood debts or are guilty of other extremely serious crimes and have to be executed to assuage the people's anger and those who have caused extremely serious harm to the national interest must be unhesitatingly sentenced to death and executed without delay.¹

This is considered the policy for the application of the death penalty for counter-revolutionaries. As for the anti-corruption movement, on 8 December 1951, Mao said that the struggle against corruption, waste and bureaucracy should be emphasized as much as the struggle to suppress counter-revolutionaries; in major cases the guilty should be dismissed from office, punished, or sentenced to prison terms (to be reformed through labor), and the worst among them should be shot. The problem could only be solved in these ways.² In 1956, in his paper, On the Ten Major Relationships (论十大关系), Mao argued that “from now on there should be fewer arrests and executions in the suppression of counter-revolutionaries in society at large … All the same, we cannot announce that there will be no more executions, and we must not abolish the death penalty.”³ Mao’s statements about capital punishment are taken to constitute the death penalty policy at that time.⁴

As to the law on the death penalty, in the 30 year period from 1949 to 1979 there was no criminal code and there was also a lack of relevant regulation on capital punishment, although some death penalty provisions could be found in certain special criminal laws, including the Instruction on Suppression of Counter-revolution Activities, of July 23 1950, which was the legal basis for dealing with counter-revolutionary cases in the early days following the foundation of the PRC, the Regulations for Suppression of Counterrevolution of the PRC, of February 20 1951, the Interim Regulations on Punishment for the Impairment of the State Currency of the PRC, of April 19 1951, and the Regulations for Suppression of Corruption of the PRC, of April 21, 1952. In February, 1956, the SPC systematically summarized the crimes, penalties and the extent of the sentences which were to be applied in judicial practice, and then issued a summary report. In this report, those crimes punishable by death were not only the crimes which were stipulated in the above special criminal laws, but also included the offenses of intentional killing, of intentionally causing injury (which caused death), and so on.⁵ “After 1958, the criminal legislative work was weakened; except for several amnesty decrees, no special criminal law had been issued, even non-criminal laws issued had seldom included criminal law norms, too.”⁶ All of these comprised the main criminal system at that time and, to great extent, they were beginning to establish the death penalty system. In practice, in this period, capital punishment was considered an important measure in fighting the enemy, and was widely applied. In this sense, “the death penalty was applied on a ground of political legitimacy and reasonableness, and this period is considered as the process of the politicization of capital punishment, but with a lack of attention to the legal character of execution.”⁷

Even though Mao Zedong died in 1976, his thought still had a deep influence on death penalty legislation in 1979, when the new China passed its first Criminal Law. However, the 1979 Criminal Law was actually made on the basis of “the 33rd draft and also considering the new conditions, new experiences and new problems”.⁸ The 33rd draft was drawn up on October 9, 1963; Mao Zedong noted that “not only Criminal Law but also Civil Law is needed. There is lawlessness nowadays and things are very difficult without laws. Criminal Law and Civil Law have got to be established. Law needs to be instituted, so do cases.”⁹ Here, we can see that the attitude of Mao towards the law differed from the speeches made in 1958, and had clearly changed. Hence, the 1979 Criminal Law, particularly the execution legislation, still retained some of the characteristics and traces of the Maoist era, as can be seen in the “explanatory note to the Seven Draft Laws” made by Peng Zhen, the former Vice-Chairman of the Fifth National People’s Congress, in the Second Session of China’s Fifth National People’s Congress (hereinafter: NPC). In this explanatory note, he argued that,

China can’t and shouldn’t abolish death penalty, and yet should try to reduce its use. In 1959, The Central Committee of CPC and Comrade Mao Zedong already and repeatedly made similar demands for a reduction in the use of the death penalty. Now, in the almost three decades since the foundation of New China, particularly after crushing the ‘Gang of Four’, the nationwide situation of public safety and public order has become increasingly stable and better day by day; the Criminal Law hence decreases the number of the crimes punishable by death….it also keeps the provisions of death with a suspension of execution.¹⁰

In addition, Article 1 of the 1979 Criminal Law provided an explicitly party-minded reference to “taking Marxism-Leninism-Mao Zedong Thought as its guide”.¹¹ Obviously, even though the 1979 Criminal Law was issued in the post-Mao era, it still retained Maoist legislation, and consequently, based on the above analysis; the 1979 Criminal Law was influenced by Mao’s thought at some level.

Without exception, the legislation regarding the death penalty in the 1979 Criminal Law also implemented the death penalty policy of Mao and of the so called Central Committee of the CPC. In accordance with the 1979 Criminal Law, the death penalty “shall only be applied to criminals who have committed the most heinous crimes (罪大恶极)”,¹² and “not imposed on persons who had not reached the age of 18 at the time the crime was committed or on women who are pregnant at the time of trial.”¹³ The death sentence review system was first established explicitly by the 1979 Criminal Law, but this review system was adapted by the NPC Standing Committee and the SPC over the next few years.¹⁴ There were only 28 crimes¹⁵ punishable by death in the 1979 Criminal Law, which meant that the number of crimes punishable by death reached its lowest point. As for the circumstances relating to these crimes, they mainly concern ‘causing particularly grave harm to the State and the people, or if the circumstances are especially serious’, or “inflicting serious injury or death on people, or causing heavy losses of public or private property, etc.”,¹⁶ provisions which partly limited the use of the death penalty. Some scholars have noted that the provisions on crime and its corresponding punishment, in particular the provisions on the punishment for general crimes, are very close to the legislation level of developed states.¹⁷

Even though the 1979 Criminal Law provided for the lowest number of crimes punishable by death, it was still full of political utilitarianism and had a heavily political complexion. These features can be found in some Chinese criminal scholars’ research papers. Some contemporary scholars maintained that ‘retaining or abolishing the death penalty by a state, is decided by the state’s specific situation in its political history, and exists to meet the objective requirements of combating crimes. As for the limited retention of the death penalty in the Criminal Law of China, it is a result of the situation of the class struggle now existing in China and the crime situation. Imposing the death sentence in accordance with the law on counter-revolutionaries and other criminals is a current demand of the state economic construction, and is necessary to consolidate the dictatorship of the proletariat, and also responds to the requirements of the Masses.¹⁸

3.1.1.2 The Death Penalty in the Deng Era: Expansion of Execution Legislation

Deng’s thinking on human rights was also implemented through the CPC’s death penalty policy. After the implementation of reforms and the opening-up of 1978, although all kinds political control imposed on the individual were relaxed and Chinese society also changed from a repressive to a more open attitude, the social system was brought into a state of anomie, and public security and criminality deteriorated. All these changes can be observed in the increasing number of criminal cases which were dealt with by the People’s Courts in the period from 1979 to 1997, as the Graph 3.1 shows.¹⁹

Graph 3.1

The number of first instance criminal cases in the whole country from 1978 to 1996 (in thousands). This graph shows the number of criminal cases before 1983, in which Chinese government implemented “strike-hard” anti-crime campaign, was dramatically increase to around 520,000 cases since 1978, especially in period from 1982 to 1983; but after the campaign in 1983, the number declined to approximately 260,000 cases in 1985, almost similar with the number of 1982. After 1985, the number of criminal cases showed a steadily increase to another highest in 1996, around 610,000 cases, even though it had a short term decrease during 1990 to 1993

In the deteriorating social environment, the Central Government of China had to apply the death penalty as the most severe punishment to control the increasing crime rate. At that time, “the view of Deng Xiaoping on the death penalty could in principle represent the attitude of central government.”²⁰ As regards the social situation in 1983, Deng Xiaoping said:

The number of crimes, including serious ones, has increased substantially, and the people are very disturbed about this. Over the past few years, far from being checked, the tendency has grown. Why is that? Chiefly because we have hesitated to take prompt and stern actions to combat criminals and have given them very light sentences. ….. Serious offenders…… should be severely punished according to law. A number of criminals should be executed according to law …… The only way to stop crime is to be tough about it.²¹

Basic on the speech quoted from above, given by Deng on July 19, on August 25, 1983, the CPC launched the Decision on Cracking Down Severely on Crimes, which claimed that “cracking down severely on crimes is as serious a struggle of opposites as that between us and the enemy in the political area.”²² Hence, the criminal was deemed the enemy of the people.

As to the death penalty, in 1986 Deng pointed out that:

The death penalty cannot be abolished, and some criminals must be sentenced to death…. Some criminals must be executed, but of course we have to be very careful in such matters. Some of the perpetrators of serious economic or other crimes must be executed as required by law. As a matter of fact, execution is one of the indispensable means of education…… Executing some of them can help save many cadres. As the saying goes, execute one as a warning to a hundred.²³

From the speeches above, it is obvious that Deng tended to emphasize the death penalty as a severe punishment to control crime, an approach which differs totally from Mao’s attitudes towards the death penalty. The execution policy was correspondingly changed from a restrictive one in the Maoist era to an extensive application in the Deng era. Regarding this change in the execution policy, one Chinese scholar criticized the fact that “the ruler expects to contain crimes and restore social order by the death penalty, and has come to somewhat depend on the death penalty during the process of social government.”²⁴

Starting in 1981, the NPC Standing Committee had successively adopted 25 Specific Criminal Laws up to time the present Criminal Law was passed in 1997, 18 of which could be punishable by death. All of these Specific Criminal Laws brought significant changes in terms of the number of crimes punishable by death and the conditions in which the death penalty could be applied. There are three important points to note about this: (1) the number of crimes punishable by death increased dramatically. According to these Specific Criminal Laws, 33 crimes in total could be punishable by death,²⁵ and together with the 1979 Criminal Law, the total number of crimes punishable by death was raised to around 80 before the 1997 Criminal Law was passed with its dramatic rate of increase; (2) some Specific Criminal Laws stipulated the death penalty as an mandatory penalty. These laws included Article 2 of the Decision Strictly Prohibiting Prostitution and Visiting Brothels ([1991] No. 51), Article 1 of the Decision on Punishing Criminal Elements Abducting and Selling or Kidnapping Women or Children ([1991] No. 52), and the Decision on Punishing Criminal Elements Hijacking Aviation Vehicles ([1992] No. 67). The death penalty for these crimes was mostly a mandatory penalty; (3) another significant change was in the terms of judicial practice. In contemporary judicial practice, in order to crack down severely on ordinary crimes such as theft, the relevant judicial authorities applied the death penalty to these kinds of crimes through their interpretation of the law. For example, the death penalty could not be applied for theft in accordance with the 1979 Criminal Law, but could be applied in the light of the Decision on Severely Punishing Criminals Who Seriously Undermine the Economy (1982).

China adopted its second Criminal Law at the 2nd Session of the Fifth NPC on July 1 1997. Effectively, the 1997 Criminal Law was based upon the 1979 Criminal Law and a serious of Specific Criminal Laws passed successively from 1981 to 1996. Based on the 1979 Criminal Law, the execution legislation in the 1997 Criminal Law continued the death penalty policy contained in the Specific Criminal Laws, with some modifications and adjustments. In the 1997 Criminal Laws there were 68 crimes punishable by death, which were distributed across 9 different chapters—excluding Chapter IX (Crimes of Dereliction of Duty)—and the percentage of crimes punishable by death from the total number of crimes (414) was 16.4%.²⁶ It might appear that the number of crimes punishable by death is fewer than the total in the 1979 Criminal Law and the 25 Specific Criminal Laws (i.e. around 80 crimes), but actually, “it neither increased nor decreased in principle; the conditions were not right for us to decrease the number of crimes punishable by death due to the current severe situation regarding social order and economic crimes.”²⁷ However, the applicable condition for imposing the death penalty was changed from “the most heinous crimes (罪大恶极)’ in the 1979 Criminal Law to ‘extremely serious crimes (罪行极其严重)”,²⁸ which means that the conditions for execution were broadened and the number of possible executions increased.²⁹ Although the 1997 Criminal Law does not reduce the executions carried out, it limits to some extent the scope of applicable cases and reduces the conditions required for commuting the death penalty to life imprisonment or fixed-term imprisonment, i.e. (1) as regards limitations, it deleted the following provision: “Persons who have reached the age of 16 but not the age of 18 may be sentenced to death with a two-year suspension of execution if the crime committed was particularly serious,”³⁰ so a person who had not reached the age of 18 at the time the crime was committed would not be sentenced to death, including death penalty with a suspension of execution; (2) in terms of reducing the conditions, it changed the phrasing of the 1979 Criminal Law from “shows true repentance” or “shows true repentance and performs meritorious service”,³¹ to “does not intentionally commit a crime”,³² so commutation can occur if the person does not intentionally commit a crime, even if true repentance does not occur.

All things considered, the expansion of execution legislation in China was not changed legislatively by the 1997 Criminal Law, and we can even argue that the execution was somewhat strengthened. However, we should note that the 1997 Criminal Law preserved, to a great extent, the scope of crimes punishable by death, but did not completely preserve the legislative pattern of the death penalty after 1979, due to the decrease in the number of crimes punishable by death. This change might appear insignificant, but it really does show that the death penalty needs to be limited and even abolished. The expansion of legislation was inevitable to give much more possibility of death sentence to the judges. Information about the number of executions is a state secret until now, but according the available reports estimated by Amnesty International, the execution numbers is 3500 in 1996,³³ but in 1997, it is 1644,³⁴ showing a dramatically decrease, and in 1998, it increased again to 1769.³⁵

3.1.1.3 The Death Penalty Policies and Legislation in the Period from 1979 to 2011: From Expansion of Execution Legislation to Limiting Its Use.

In a state—in this case, China—which only emphasizes the national interest or the interests or human rights of the majority, the interests or human rights of the few, such as criminals, are seen as opposed to those of the majority, and are in most cases neglected or not taken seriously, and so “the criminals’ human rights protection” is denied³⁶; in a state which only focuses on economic and state development, or on the stability of the state, the instrumental efficacy of criminal law and its punishment will be highlighted and taken full advantage of. In terms of crime and public security, the state is expected to control crime and protect public security by launching a national anti-crime campaign³⁷; on the other hand, the traditional concept of “governing the country with severe law during troubled times (治乱世用重典)” still plays an important role in contemporary China. “Culture is a rather vague concept, but certain legal and religious traditions can influence whether the death penalty is considered a culturally accepted part of the penal system.”³⁸ The death penalty is always considered the main option in an anti-crime campaign, because it is the most effective and direct measure for controlling crime. It is true, to some extent, that the death penalty has always received the attention and has been a favored policy of national rulers and the public. The public expect the authorities to be able to crack down on and control crimes by using the death penalty; and the rulers also want to govern and control crime by applying heavy punishments to protect the social order and public security. To a great extent, these expectations on the part of the public and the rulers formed the basic reasoning behind the death penalty and expanded the scope of its application. In the post-Deng era, the national leaders of China still face serious public security issues; however, they need to launch different policies. Jiang, in his time in office, still continued the policy of “stability overwhelming the wholeness”, which was proposed by Deng Xiaoping; in the Hu era, the emphasis was on the strategic idea that “development is an absolute principle and stability is an absolute task.”³⁹ Therefore, in these two eras, and until the end of the Hu era, there was no significant change in the use of the death penalty, and the execution number, which is showed by Graph 3.2, was still at a high level in accordance with the Amnesty International estimate report.

Graph 3.2

The execution numbers in China and the world (in execution) (all these dates are from Amnesty International Death Sentences and Executions from 1999 to 2008, Al Idex respectively: ACT 50/08/00, ACT 50/001/2001, ACT 50/001/2002, ACT 50/002/2003, ACT 50/007/2004, ACT 50/005/2005, ACT 50/002/2006, ACT 50/004/2007, ACT 50/001/2008, and ACT 50/003/2009). This graph shows the execution number of China in 2007 is the lowest, around 470 but in the world, it is in 2003, approximately 1146, at the same year, China’s amount is around 726; the highest in China is in 2004 with 3400 due to it implemented “strike-hard” anti-crime campaign at that year, and in 2001, it also implemented this policy so is showed the second highest number, around 2468

Although the death penalty still plays an important role in crime control and social governance, China has already amended the criminal law towards limiting its use. In 2007, a significant reforming step was taken, when, on 1 January 2007, the power to review for all death sentences was restored to SPC from the local Higher People’s Courts and the Military Courts, such that the SPC can now uniformly exercise the power to review and further improve the standards and conditions of evidence and the procedure involved in sentencing someone to death. Therefore, we can see the execution number at that year in the post-deng era is the lowest. This is the first time China has limited the use of the death penalty in judicial practice since the passing of the 1979 Criminal Law. On the one hand, this change could be due to the inclusion in the Constitution of the statement ‘the state respects and protect human rights’; on the other hand, it could be a result of a change in the criminal policy in 2006 from a policy of “cracking down on crime(严打)” to one of “combining leniency and severity (宽严相济)”.⁴⁰

3.1.1.4 The Death Penalty Legislation and Reform in the Period from 2011 to 2015: Abolishing the Death Penalty for Some Economic Crimes

Another significant and substantial step was taken by the Eighth Amendment. In 2011, the Eighth Amendment, which was adopted on February 25th, abolished the death penalty for 13 economic and nonviolent crimes, reducing the number of crimes punishable by death from 68 to 55, and banned capital punishment for offenders over the age of 75. Even though seven amendments were adopted before the Eighth Amendment, they did not involve any reform of the death penalty; in other words, the Eighth Amendment started a process of gradually abolishing the death penalty in China. Professor Carolyn Hoyle in the UK pointed out that “important in themselves, these reforms are emblematic of China’s emerging commitment to limit the scope and practice of capital punishment in stages, with, as it stated to the UN Human Rights Council in 2007, the final aim of abolition.”⁴¹

From the above, we can see that in the Jiang era, China did not undertake any reform of the death penalty and denied criminals human rights, but in the Hu era, the country put emphasis on the central task of putting people first, and so the concept of the ‘state respects and protects human rights’ was included in the Constitution in 2004. Following this, reform of the death penalty was started by limiting its use in judicial practice in 2007, and in 2011, by legislatively decreasing in a significant fashion the number of crimes punishable by death. This is one important illustration of the CPC’s shifting approach to human rights and to the reform of the death penalty system, but we cannot fine any information about execution number after 2008. However, after the Eight Amendment, there were still 55 crimes punishable by death, and it is impossible to get.

China entered the Xi Jinping era in November 2012, and launched its first White Paper on Judicial Reform in China (hereinafter: White Paper) in this year.⁴² This White Paper explicitly states that “China retains the death penalty, but strictly controls and prudently applies it.”⁴³ This was also the first time that China had stated its opinion on the death penalty in a White Paper. Decision of the Central Committee of the Communist Party of China on Some Major Issues Concerning Comprehensively Deepening the Reform (hereinafter, the 2013 Decision) also stated that “we will gradually reduce the number of crimes punishable by death penalty”,⁴⁴ which was also the first time China had discussed abolishing the death penalty gradually in the Party’s report. However, the CPC Central Committee Decision Concerning Some Major Questions in Comprehensively Moving Governing the Country According to the Law Forward (hereinafter: the 2014 Decision) does not mention the death penalty, but states that it will “promote judicial reform”, “comprehensively construct the rule of law”, and “strengthen the judicial protection of human rights.”⁴⁵ In the light of the Party’s political documents and the White Paper, China adopted the Ninth Amendment to the Criminal Law (hereinafter, the Ninth Amendment) on 29 August 2015, which also abolished the death penalty for 9 crimes and reformed the relevant death penalty system.

The Ninth Amendment pushed reform of the death penalty further forward. The relevant steps in this process can be detailed as follows: (1) there has been a further reduction in the number of crimes punishable by death stipulated by specific provisions of the Criminal Law, from 55 to 46, i.e., the death penalty is no longer applicable for the crimes of smuggling weapons, ammunition, or nuclear materials, smuggling counterfeit currency, counterfeiting currency, raising funds by means of fraud, organizing prostitution, forcing another person to engage in prostitution, obstructing a commander or a person on duty from performing his duty, and fabricating rumors to mislead others during wartime. So, China has taken another solid step towards the final goal of entirely abolishing the death penalty de facto and de jure by reducing the number of crimes punishable by death. However, there are still 46 crimes punishable by death in the present Criminal Law, of which 24 are non-violent crimes, representing 52.2% of the total, and 22 are violent crimes; (2) the executive conditions are further improved in that the suspended death penalty is commuted to immediate execution, which is a reform of great significance for China’s current death penalty system. In accordance with Article 2 of the Ninth Amendment, the stipulation of the previous Article 50(1) that “if it is verified that he or she has committed an intentional crime, the death penalty shall be executed upon verification and approval of the SPC” is amended by the Ninth to “if he or she has committed an intentional crime the circumstances of which are flagrant, the death penalty shall be executed upon verification and approval of the SPC; if he or she has committed an intentional crime, but the death penalty is not carried out, the terms of the suspension of the carrying out of the death penalty shall be reviewed again, and reported to the SPC for the record”.⁴⁶ In other words, the system of the death penalty with suspension of execution was reformed in two senses; firstly, “it raises further the thresholds of the suspension of execution of death penalty commuted to immediate execution.”,⁴⁷ i.e. the previous terms of “it is verified” is amended to “circumstances are flagrant”; secondly, it increases the probation period of the suspension of execution; in other words, it appears to put the criminal onto a longer “death row”⁴⁸ once again, since the Ninth Amendment provides that if he or she has committed an intentional crime during the probation period of the suspension of execution and the circumstances are not flagrant, the death penalty shall not be carried out, but the terms of the suspension of the execution of the death penalty shall be reviewed again.

Certainly, China is still facing a difficult path to the complete abolition of the death penalty de jure and de facto. In the post-Deng era, following the analysis above, the CPC’s outlook on human rights has undergone a great change, especially in the area of criminals’ human rights, from denying criminals human rights protection to “strengthen the judicial protection of human rights”, but the CPC still emphasizes the human rights and interests of the majority and the primacy of the nation and economic development; and the individual interests of the few always make way for the former. Even though the SOD stated the importance of “putting people first as its core principle” and the 2013 and 2014 Decisions declared the judicial protection of human rights, they also emphasized the importance of “persisting in starting from China’s reality and striving to make the people feel fairness and justice in every judicial case”.⁴⁹ As far as fairness is concerned, however, different people have different perspectives. Hence it is a pseudo-perspective that every person should feel fairness and justice in every judicial case. Particularly now, judicial authorities in China have to implement all kinds of “Mass Line Campaigns” as a form of political initiative. In these kinds of political campaign, fairness and justice tend to be the property of the majority of the people; public opinion can always be involved and can react to events in the judicial sphere.⁵⁰

The White Paper and the 2013 Decision have already stated to strictly control and apply cautiously the death penalty, but the process they establish for this is a gradual one. Nobody knows the timetable for China’s complete abolition of the death penalty. In the present situation in China, however, death penalty reform is always decided by the nation’s leaders. On the one hand, the nation’s leaders have to focus on the demands of the mass of the people, because they are “the subjects of and source of strength for ruling the country according to the law”⁵¹; on the other hand, the death penalty is still the most effective measure available to the rulers to protect national stability and public security.⁵²

3.1.2 The Death Penalty Legislation and Reform After 2015

The Eighth and Ninth Amendment have dramatically reduced the number of crimes punishable by death stipulated by the specific provisions; there are still 46 crimes punishable by death. And the Chinese legislature has to reduce entirely this number of crimes step by step in the future. The approaches and strategies below should be adopted for the next steps.

3.1.2.1 Strategy One: Abolishing the Death Penalty for Non-Violent Crimes

The Eighth and Ninth Amendment have abolished the death penalty for 13 economic and non-violent crimes and 9 crimes respectively. This kind of trend and style of reducing the number of crimes punishable by death will be the significant and appropriate approach and strategy for reform of the death penalty in China, and it is basic on the distributed situation of crime punishable by death in the specific provisions of Criminal Law and judicial practice. Table 3.1 shows the distributed situations of crimes punishable by death.

Table 3.1 The distributed situations of crimes punishable by death

At the same time, in the judicial practice of China, the actual applicable rate of non-violent crimes also determines that the focus of death penalty reform in China in the future should be on abolishing the death penalty for non-violent crimes. Since the present Criminal Law was enacted in 1997, the death penalty for the crimes of impairing the interests of national defence, crimes of servicemen transgression of duties and most crimes of endangering national security have never been applied up until the present time, and it seems that this form of punishment in these cases has been put aside. The death penalty used to be frequently applied in the past for the crimes of embezzlement and bribery, but this has not been the judicial practice in recent years, including the implementation of the death penalty with immediate execution. Therefore, in accordance with the judicial practice in China, abolishing the death penalty for non-violent crimes would not have any practical negative impact.

Furthermore, non-violent crime is very substantially different from violent crime, due to the latter’s infringements upon the right to life and right to health, and the former does not directly endanger another person’s right to life. So, sentencing the criminal who committed extremely serious non-violent crimes to death is in fact out of keeping with the essential balance between crime and punishment. “non-violent crime does not only doesn’t include the violent factor in terms of constitutive elements of a crime, but also doesn’t take another person’s life as the target of crime. So, the nature of social harmfulness of this kind of crime is absolutely different from such homicide as violent crime, and they could not view as the serious crime. But in accordance with the present Criminal Law, the maximum punishment prescribed is the death penalty for these two kinds of crimes, which is doubtlessly against the principle of suitable punishment for crime.”⁵³ Non-violent crimes will become the preference for China to reform the death penalty system.

3.1.2.1.1 Strategy Two: Reducing the Number of Non-lethal Violent Crime Punishable by Death

Non-lethal violent crime refers to those crimes committed by violent means but which don’t cause the victim’s death. For example, the crime of forcing other person to engage in prostitution and the crime of obstructing a commander or a person on duty from performing his duties are non-lethal violent crime. The Ninth Amendment abolished the death penalty for economic and non-lethal violent crimes, going beyond the limitations of the Eighth Amendment which only abolished the death penalty for economic and non-violent crime. “It (the Ninth Amendment) has now taken a step to abolish the death penalty for non-lethal violent crime precedent, and in the future, China should keep on moving toward abolishing the death penalty for this kind of crime.”⁵⁴

After enactment of the Ninth Amendment, in the present Criminal Law there are still 22 violent crimes punishable by death, most of which are stipulated by Chapter II (10 Crimes of endangering public security) and Chapter IV (4 crimes of infringing upon citizens’ right of the person) in The Specific Provisions of Criminal Law. The non-lethal violent crimes mainly include crimes of stealing or forcibly seizing any guns, ammunition or explosives, or stealing or forcibly seizing poisonous or radioactive substances, infectious disease pathogens (Article 127), crime of rape (Article 236), crime of abducting and trafficking in women or children (Article 240), crime of robbery (Article 263), crime of smuggling, trafficking in, transporting and manufacturing narcotic drugs (Article 347), and so on. According to traditional Chinese thinking, the harmful social consequences caused by these crimes are very serious and the perpetrators should be sentenced to death for committing them. And for these kinds of crimes, now, “China remains heavily dependent on the death penalty to control them.”⁵⁵ To a great extent, China is still very resistant to abolishing the death penalty for these kinds of crimes. Non-lethal violent crimes, normally, are committed by violent means and cause a serious harmful social consequence, and the culpability of the perpetrator who commits this kind of crime is much more than that of the perpetrator who commits a non-violent crime. As for the value of life, the direct result of the death penalty is far more than the result caused by the non-lethal violent crime. Therefore, stipulating the death penalty for the non-lethal violent crime, to a great extent, implies that it is unsuitable punishment for the crime. So, China should abolish the death penalty for non-lethal violent crime. Abolishing the death penalty for non-lethal violent crime lays the groundwork for further abolishing the death penalty for lethal violent crime.

3.1.2.1.2 Strategy Three: Strictly Limiting the Application of Death Penalty for Lethal Violent Crime Until Entirely Abolishing the Death Penalty

Lethal violent crime refers to the crime of infringing or illegally depriving another person of their right to life by means of violence, such as the crime of hijacking aircraft (Article 121), and the crime of homicide (Article 232). All these kinds of crimes are punishable by death in light of the Criminal Law. The nature of the death penalty for this kind of crime is called “absolutely determinate death penalty”⁵⁶ or called mandatory death penalty. And all this time, “the death penalty is mainly applied to such homicide, crime of intentional injury as only a few types of serious crimes.”⁵⁷ Abolishing the death penalty for lethal violent crime would be the last strategy of death penalty system reform in China and it will be the most difficult. On the one hand, lethal violent crime has the most serious reverse-ethic, and it also easily raises the whole society concerns and easily sparks outrage. This can be clearly seen in recent cases, such as that of Li Changkui,⁵⁸ who raped and killed his fiancée and then killed the fiancée’s brother, and the case of Yao Jiaxin,⁵⁹ who cruelly killed a woman. These two cases called the public’s attention to lethal violent crime and the death penalty system, and caused the society to intensively debate whether these two perpetrators shall be sentenced to death or not. Finally, however, the opponents of the death penalty really lost to the proponent. And this result was reflected in the final judgments of these two cases. On the other hand, the death penalty for lethal violent crime is in line with traditional Chinese concepts of retribution, which include “death to the killer, prison to the violence”. “This traditional concept has already survived more than one thousand years in China, and until now the revenge consciousness and retribution concept remain ingrained in Chinese thinking, and the psychological expectation of retribution can distinctly be found amongst the Chinese.”⁶⁰ The traditional concept of “life for a life” has a firm foundation in the whole society and it has a deep influence on the criminal legislation and also provides a strong basis for sentencing the criminal who committed lethal violent crime to death. In addition, “immediately abolishing entirely the death penalty de jure and de facto would be too sudden to be accepted by the current social reality in China, because social support for complete abolition is lacking. But it doesn’t mean that the public security now is in a bad situation; it was deeply impacted by the large population, the model of criminal legislation and the model of social control instead.”⁶¹ The complete abolition of the death penalty for lethal violent crime is at this stage unrealistic, but it should be limited by legislation. One important step is to amend the provisions of mandatory death penalty in the Criminal Law. There are 4 crimes punishable by mandatory death penalty in the present Criminal Law, namely, the crime of hijacking aircraft (Article 121), crime of kidnapping (Article 239), crime of abducting and trafficking in a woman or child (Article 240) and crime of instigating a riot to escape from prison or gather people to raid a prison with weapons. In accordance with these provisions, “if the crime falls under any category provided by the Criminal Law, the defender shall be sentenced to death, except if he or she due to the circumstances of a crime calls for a lighter or mitigated punishment or exemption from punishment under the provisions of Criminal Law, or he or she is in the situation that the death penalty shall not be imposed on him or her.”⁶² To a great extent, therefore, the judicial discretion of the judge in the process of sentencing is limited. As for the policy of “strictly controlling and applying the death penalty deliberately”, the terms of mandatory death penalty is nothing else but will only bring the possibility that the death policy will be ignored by the judge. This kind of provision, thus, should be amended and replaced by life-imprisonment for the sake of strictly controlling and limiting the death penalty for lethal violent crime.

3.1.3 The Death Penalty and Its Reforms in Other Countries

In according to the Amnesty International Global Report (hereinafter: AIGR), as of December 31, 2016, there were 57 countries retaining the death penalty, and 104 countries abolished the death penalty for all crimes, and 141 countries totally abolished the death penalty in law or practice.⁶³ For these 57 retentionist, the AIGR states that at least 1032 people were executed in 2016, a 37% decrease in the number of executions carried out globally in 2016 against the previous year.⁶⁴ According to the AIGR, the Republic of Benin and the Republic of Nauru abolished the death penalty in January 21, 2016, and May 12, 2016, respectively; “several others took steps to restrict use of the death penalty; and the global trend remained towards the abolition of the death penalty as the ultimate cruel, inhuman and degrading punishment.”⁶⁵ This book would like to explore the legislation of the death penalty and its potential reform in the retention states, taking United States of American, Japan, Indonesia, and other states as examples, as well as taking the abolitionist states, like European states, as the contrastively analyzing example.

3.1.3.1 The Death Penalty and Its Reforms in Asia: Taking Japan and Indonesia as Examples

3.1.3.1.1 The Death Penalty and Its Reforms in Japan

Japan is an important country and “the only high-income democracy Asian state in the world to retain and apply the death penalty”,⁶⁶ as one of the six principal punishments it applies.⁶⁷ In accordance with the Penal Code of Japan, judges are empowered to sentence the convict to death by hanging for twelve crimes,⁶⁸ which include insurrection (Article 77(1. i), instigation of foreign aggression (Article 81), assistance to the enemy (Article 82), arson of inhabited buildings (Article 108), detonating explosives (Article 117 (1)), damage to an inhabited building by flood (Article 119), overturning of trains (Article 126), endangering traffic by overturning of a train (Article 127), pollution of water supplies with poisonous materials and causing death thereby ( Article 146), homicide (Article 199), robbery causing death or injury (Article 240), rape at the scene of a robbery and causing death thereby (Article 241); in addition to these twelve crimes, some scholars state that there are six crimes that are punished by death, including use of explosives, causing death as a result of a duel, causing death as a result of an aeroplane crash, causing death by hijacking an aircraft, and killing a hostage.⁶⁹ Except for the crimes provided by Articles 77 (1. i), 81, 82, 108, 117, 119, and 127, the crimes provided by Articles 126, 146, 199,240 and 241 and the other six crimes described by other scholars are all lethal crimes, for which the application circumstances for the death penalty are that the crime causes the death of another person. According to the AIGRs, for these eighteen crimes, the Japanese judicial authorities have imposed the death penalty on several convicts and executions have been carried out, as can be seen in the following Graph 3.3.⁷⁰

Graph 3.3

The numbers of reported death sentences and reported executions in Japan from 2007 to 2016. From the above graph, we can see that the number of reported death sentences in Japan has fluctuated, i.e. there was a slight increase from 23 in 2007 to a peak of 30 in 2009 and then a sharp decline to a low of 2 in 2014, before which there had been a slight increase from 3 in 2012 to 5 in 2013; after 2014 the number remained at its relatively low level of between 2 and 4. Similarly, the number of reported executions in Japan also fluctuated. It hit a peak of 15 in 2008, increasing from 9 in 2007, and then decreased to zero in 2011, which means that Japan did not carry out any executions in that year. However, 7 convicts were executed in 2012 and 8 in 2013; after that, Japan only executed 3 convicts a year in 2014, 2015 and 2016

From the above graph, we can see an obvious change after 2009, when the numbers of reported death sentences and reported executions show a sharp decline. This is mainly the result of the introduction of the lay assessor trials in 2009—the saiban-in (‘public participants’)—in which six saiban-in and three judges deliberate and make decisions together on both guilt and the sentence.⁷¹ Before the implementation of the sailan-in seido, “each party in the new saiban-in court had appeared to directly or indirectly contemplate the prospect of de facto abolition of the death penalty”.⁷² Under the new trial system, “the lay judge panels impose a death sentence in approximately seventy percent of the cases where the prosecutors seek one,”⁷³ and so the number of the death sentences has decreased since 2009, as shown in the above graph. This is the most important reform to control the use of the death penalty in Japan to date, in the context of a retention of capital punishment.

3.1.3.2 The Death Penalty and Its Reform in Indonesia

The Republic of Indonesia is an important Asian state which retains the death penalty, and it has been “a persistent feature of the Indonesian legal system”⁷⁴ in a country which has a “population of 260 million people and … is the world’s fourth most populous country.”⁷⁵ According to the Penal Code of Indonesia, the death penalty by shooting is provided as one of the basic punishments, along with imprisonment, light imprisonment and a fine.⁷⁶ There are 11 types of crime in the Indonesian Penal Code where the culprit can be sentenced to capital punishment, including assaulting the President or Vice President (Article 104), persuading another country to take hostile action against Indonesia (Article 111 Paragraph (2)), deliberately revealing or informing or smuggling information concerning the interests of the state to foreign powers (Article 112), voluntarily entering into military service with a foreign power (Article 123), supporting the enemy in a time of war (Article 124 Paragraph (3)), committing a fraudulent act in the delivery of materials for use of the navy or the army in time of war (Article 127 Paragraph (1)), assaulting a King or a President of another country, either as a premeditated action or where the action results in death (Article 140 Paragraph (3)), premeditated murder (Article 340), theft which results in serious injury or death (Article 365 Paragraph 4), extortion which results in serious injury or death (Article 365 Paragraph 2), and sea/river hijacking which results in death (Article 444).⁷⁷ Outside the Penal Code, the death penalty also can be used for criminal actions under specific central government laws, including economic crimes (Law No. 21 Year 1959⁷⁸), abuse of political powers (Law No. 11 Year 1963⁷⁹), crimes of corruption (Law No.31. 1999; and Law No. 20. Year 2001⁸⁰), drug trafficking (Law No. 39 Year 2005⁸¹), acts of terrorism (Law No. 9 Year 2013⁸²), and crimes involving air transport (Law No. 4 Year 1976⁸³).⁸⁴ Based on these clauses which provide for those crimes punishable by death, according to the Amnesty International Report of 2016, the Indonesian judicial authorities passed more than 60 death sentences and executed 4 offenders; the number of sentences being higher than in 2015 when it was 46, but the number of executions lower than in that year, when 14 people were⁸⁵ “convicted of drug-related offenses to confront ‘a national emergency’ in drug-related deaths.”⁸⁶ However, in practice Indonesia does not execute convicts who are given death sentence in all years; for instance, it did not carry out the death penalty from 2009 to 2012 according to the AIGRs,⁸⁷ although we can see that it has imposed death sentences in every year since 2010, as can be seen in the following Graph 3.4.

Graph 3.4

The numbers of the death sentences in Indonesia since 2010 (all these numbers are the credible minimum figure). From the above graph, we can see that the number of reported death sentences is generally increasing except in 2014, when it fell to 6, the same number as in 2011; the peak was in 2016, when approximately 60 were executed. All these data are drawn from Amnesty International Reports: Death Sentences and Executions 2016 (Index: ACT 50/5740/2017), Death Sentences and Executions 2015 (Index: ACT 50/3487/2016), Death Sentences and Executions 2014 (Index: ACT 50/001/2015), Death Sentences and Executions 2013 (Index: ACT 50/001/2014), Death Sentences and Executions 2012 (Index: ACT 50/001/2013), Death Sentences and Executions 2011 (Index: ACT 50/001/2012), Death Sentences and Executions 2010 (Index: ACT 50/ 001/2011).

From the list of crimes punishable by death mentioned above, we can see that Indonesia has not legislatively abolished or reduced the number of the crimes punishable by death, but increased it by legislation after the amendment to the Penal Code in 1999, in the cases of, for example, drug traffickers (Law No. 39 Year 2005), and the Act of Terrorism (Law No. 9 Year 2013). However, we can see that even though the number of crimes punishable by death in the legislation has increased, the number of death sentences in judicial practice was relatively low during the administration of the former President, Susilo Bambang Yudhoyono (2004–2014); however, with the current President of Indonesia, Joko Widodo, the number has increased two or threefold. Reacting to this, some scholars have criticized the fact that the Indonesian democratization process, including a fundamental overhaul of its legal system, which was promoted by Susilo, did not extend to revoking the death penalty⁸⁸; and his successor, Joko Widodo, “has proven to be a staunch supporter of the death penalty”.⁸⁹ Actually, under the Penal Code of Indonesia, the crimes punishable by death mentioned above are mainly crimes against the security of the state and lethal crimes which result in death where there are circumstances which can be applied to impose the death penalty. Beyond the Penal Code, the other crimes for which it is possible to impose the death sentence are not violent and lethal crimes, but for instance, economic crimes, abuse of political power, and drug trafficking, and the grounds for stipulating the death penalty for these kinds of the crimes can mainly be attributed to “political reasons, [including] actual crime control measures”⁹⁰; in addition, the deterrence theory has a great influence on the leadership and legislators in Indonesia. For example, some Indonesian officials argue that “executions would have a deterrent effect on crime, that the most serious crimes merit the death penalty, and that unrepentant or recidivist criminals deserve death”⁹¹; and this is particularly strongly argued for drug-related crimes; for instance, the former President, Yudhoyono, said that “deterrence and the interests of justice justify the use of the death penalty for drug charges”.⁹² Just as Professor Daniel points out, “outright abolition is considered unlikely under Joko Widodo, as Indonesia’s public, government, and religious institutions still favor retention.”⁹³ Based on the aforementioned political reasons, the idea of deterrence and the interests of justice, Indonesia would not consider repealing the death penalty for the time being⁹⁴ and will even increase the use of the death penalty, as has occurred in the past two years.

3.1.4 The Death Penalty and Its Reforms in Europe and Central Asia

The movement to abolish the death penalty was driven by theoretical controversy, in particular in Western Europe, where debates on the abolition of the death penalty took place several centuries ago and “have been going on at least since Cesar Beccaria.”⁹⁵ In 1764, Beccaria in his book, Dei Delitti et dellepene (On Crimes and punishments), strongly expressed his attitude against the death penalty, which gave rise to a heated discussion on the abolition of the death penalty. “During the second half of the eighteenth century, the abolition of the death penalty became an important political issue in several Western European countries”⁹⁶; and after 1848 some clear signs of a gradual elimination of the death penalty in some Europe states were already observable⁹⁷; for example, after 1850 the death penalty in the Netherlands was not carried out in public any more but behind prison walls due to public aversion to witnessing it.⁹⁸ And then, “in 1860, the death penalty in Netherlands was abolished de facto, and 1870 formal abolition was debated and accepted by Parliament.”⁹⁹ However, the death penalty could be used under a situation of national emergency, like, for example, a war, and until 1878 it was completely repealed for crimes in peacetime.¹⁰⁰ The treatment of the death penalty in France had similar characteristics of gradual abolition, i.e., the number of capital crimes was gradually reduced.¹⁰¹

However, by reviewing the history of the abolition of the death penalty in Europe, it seems that the main reason driving the abolition of the death penalty from the earliest times was not concern for human rights, but other arguments. For example, in her paper, Professor Annemarieke Beijer points out that the two main objections against the death penalty in the Netherlands in the nineteenth century were that “the death penalty violates the ‘evolving standard of decency’ and it is not a necessary instrument to maintain public order”¹⁰²; she noted that in 1870 the public was against the death penalty on religious grounds¹⁰³ and “they were afraid that the Bible would lose its importance as a guide to penal policy.”¹⁰⁴ To a great extent, the issue of human rights at that time was not a central concern with the death penalty, but referred to slavery; therefore, the concept of human rights was still not the core reason to drive the abolition of the death penalty, although it perhaps was important in some European states, such as Iceland (1928),¹⁰⁵ and Sweden (1921).¹⁰⁶

However, with the outbreak of World Wars I and II in the first half of the twenty century and the resulting huge loss of life, the concept of human rights and human dignity become important issues for the public and even, finally, become a main value proposition from a legislative perspective. Subsequently, the death penalty was finally considered to be incompatible with the presumably humane values of modern liberal democracy.¹⁰⁷ Especially given that, as the ECHR was drafted in 1948 and adopted on 4 November 1950, human rights truly became the most important factor driving the movement to abolish the death penalty. This was because the ECHR is “a central reference text for the protection of fundamental rights in Europe,”¹⁰⁸ and it established the European Court of Human Rights (hereinafter: ECtHR); all member states have to belong to the ECHR and new members have to ratify it. However, the ECHR does not directly require member states to abolish the death penalty, but it does prohibit torture.¹⁰⁹ Certainly, the death penalty is by its nature classified as a form of torture. To a great extent, the ECHR acts as a foundation legal instrument against the death penalty, and its two important protocols, i.e. Protocol No.6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty (hereinafter, Protocol No.6) and Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Concerning the Abolition of the Death Penalty in All Circumstances (hereinafter, Protocol No.13), are specific and main instruments driving member states to abolish the death penalty, as they directly require member states to abolish it.

In fact, the strategy of the abolition of the death penalty in Europe is also a gradual one. After WWII, the movement to abolish the death penalty was pushed to a peak, driven by the ECHR, but it still followed the route of gradualism, i.e., on the one hand, some member states first gradually reduced the number of capital crimes and then completely abolished the death penalty, or some member states prohibited the use of the death penalty for all crimes except in conditions of war or national emergency; on the other hand, after the ECHR, the other international Conventions proposed gradualism and allowed member states to use the death penalty in time of war until 2000. For example, Article 2 of Protocol No.6, which was adopted in 1983, allows member states to make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war,¹¹⁰ but this condition was only completely changed in Protocol No. 13, adopted in 2000 which declared that the final step should be taken to abolish the death penalty in all circumstances.¹¹¹ In addition, the Charter of Fundamental Rights of the European Union (hereinafter, the EU Charter) is another important political document in the drive towards the abolition of the death penalty. In accordance with Article 2 of the Charter, the death penalty is an absolutely prohibited punishment.¹¹² From the political perspective, under the requirements of the Council of the Europe, “abolition is an explicit and absolute condition to become a member of the EU, and also a prerequisite for membership in the Council of Europe.”¹¹³ Regarding this, some scholars argue that “the approach taken by the European countries to the death penalty is nearly homogeneous and shows clearly the path regional institutions follow to achieve a common understanding on human rights.”¹¹⁴ Meanwhile, more European states—around 27—had removed the death penalty from the penal system for crimes committed in peacetime before the adoption of Protocol No.13 in 2000, including Germany (West Germany in 1949, East Germany in 1978), Italy (1947), Portugal (1867 for peacetime, 1978 for wartime), the United Kingdom (suspended in 1965, and confirmed in 1969),¹¹⁵ and Hungary(1990)¹¹⁶; some member states—around—14 repealed the death penalty for crimes committed in the peacetime after 1990. To date, almost all European states have abolished the death penalty for all crimes de jure and de facto, except for Russia, Belarus, and Kazakhstan. The latter two are not the members of the Council of Europe because of the human rights concerns.

According to Belarus’s Constitution, “the death penalty may be applied in accordance with the law as an exceptional penalty for especially grave crimes and only in accordance with the verdict of a court of law.”¹¹⁷ Therefore, there is no constitutional obstacle to abolishing the death penalty in Belarus, but the Constitution authorizes its use. Under the Criminal Code of the Republic of Belarus, the death penalty is an exclusive penal measure for some particularly serious crimes involving deliberate deprivation of a person’s life with aggravating circumstances, but it cannot be applied to persons who are younger than eighteen years old before committing the crime, to women, or to a man who has reached the age of sixty-five when the sentencing judgment is pronounced; the death penalty may be replaced by a pardon with life imprisonment.¹¹⁸ As of now, according to the Criminal Code of Belarus, there are 14 crimes punishable by death, including launching or conducting aggressive war (Article 122.2), murder of a representative of a foreign state or international organization in order to provoke international complications or war or destabilize public order in a foreign country (Article 124.2), acts of international terrorism (Article 126), genocide (Article 127), crimes against the safety of humanity (Article 128), use of weapons of mass destruction prohibited by an international treaty (Article 134), violation of the laws and usages of war (Article 135.3), murder committed under aggravating circumstances (Article 139.2), terrorism (Article 289.3), treason involving a murder (Article 356.2), conspiracy to seize state power (Article 357.3), an act of terrorism against a state or public figure (Article 359), sabotage (Article 360.2), and murder of an employee of law-enforcement bodies (Article 362.2).¹¹⁹ Of these 14 crimes, 7 are crimes against peace, security, humanity and the military, 5 are crimes against the state and the order implemented by the authorities; and most of them take aggravating circumstances and causing death as the condition for the application of the death penalty. For these 14 crimes, Belarus authorities have imposed death sentences and executed only a few convicts in recent years, according to the AIGR. For instance, in 2016, 4 convicts had been given death sentences by April 2016, and 4 executed, and there are 2 individuals known to be under sentence of death at the end of 2016¹²⁰; however, in 2015, only 2 convicts had a death sentence imposed, and no one was executed.¹²¹ By contrast, in 2014, Belarus authorities executed 3 convicts after a 24 month hiatus, but no one had a death sentence imposed.¹²²

Belarus, one of the two states in the Europe and Central Asia to use the death penalty, is under great pressure from the Council of Europe. The 1283rd Meeting of the Committee of Ministers of the Council of Europe explicitly states that “we call on the Belarus’ authorities to commute the remaining death sentences and establish a moratorium on executions as a first step towards abolition of this practice”.¹²³ In fact, as early as 2012, “the European Parliament adopted resolutions to call for the initiation of moratorium as a step to abolition of the death penalty in Belarus.”¹²⁴ Reacting to this Resolution, however, the Belarusian government made a statement criticizing it for being “nothing but a continuation of its pressure tactic on the Belarusian authorities and interference with the domestic affairs of the country”¹²⁵; and argued that “it [this resolution] produces the impression that European MPs care less about [the] reliability of the facts and [the] validity of [the] conclusion”.¹²⁶ Belarus has not abolished the death penalty in recent years, but “has more stringent restrictions on the use of the death penalty than provided for in the international covenant”¹²⁷ according to Belarus’ Deputy Minister of Foreign Affairs Valentin Rybakov, who gave a speech at the international conference on the Death Penalty in 2016, where he also argued that it is impossible to impose a moratorium on the death penalty due to “repeated opinion polls [which] suggest that the death penalty continues to be differently perceived in the society and still has a majority of supporters.”¹²⁸ Moreover, on May 3, 2017, the House of Representatives set up a working group on the death penalty in the new convocation parliament, which will inform the public on different aspects of the punishment and provide a full-fledged monitoring of the situation.¹²⁹

The Republic of Kazakhstan is another non-member state of the Council of Europe which retains the death penalty in the European and Central Asian region. The retention of the death penalty in Kazakhstan has constitutional grounds and its use is restricted by the Constitution, which provides that “the death penalty shall be established by law as an exceptional punishment for terrorist crimes which have resulted in fatalities, and also for especially grave crimes, committed in wartime, with granting a sentenced person a right to appeal for pardon.”¹³⁰ Under the present Criminal Code of the Republic of Kazakhstan, the death penalty is stipulated as one of the five types of punishment which may be applied to a person recognized as a guilty of committing a crime,¹³¹ and is an exceptional measure of punishment carried out by shooting for crimes of terrorism, which cause loss of life, as well as for especially grave crimes, committed in wartime. These punishments originate almost directly from the Constitution.¹³²

Currently, there are 17 crimes punishable by death, i.e., unleashing or conducting aggressive war (Article 160(2)), use of weapons of mass destruction, as prohibited by international treaty signed by Kazakhstan, conduct in war (Article 163(2)), murder of a special person listed in Article 164(1) (Article 164(2)), genocide in wartime (Article 168), acting as a mercenary involved in the death of people or causing other grave consequences (Article 170 (4)), treason in wartime (Article 175(3)), an infringement on the life of the first President of Kazakhstan-leader of the nation (Article 177), an infringement on the life of the President of Kazakhstan (Article 178), sabotage (Article 184), acts of terrorism (Article 255), insubordination or other non-execution of orders in wartime (Article 437 (5)), resistance to the Head of the public association or compelling him (her) to violate official obligations in wartime (Article 438 (4)), violent actions in relation to the Head of the public association in wartime (Article 439 (4)), desertion in wartime (Article 442(4)), evasion or refusal of military service in wartime (Article 443 (3)), violation of rules regarding combat duty in a military situation or in war time (Article 444(3)), and surrendering or abandoning means of warfare to the enemy (Article 455).¹³³ From these crimes, we can see that one of the application conditions for 12 of these 17 crimes is explicitly provided for in wartime, and one of them is explicitly stipulated as related to terrorism. For these crimes, Kazakhstan authorities rarely use the death penalty and almost never execution; for example, in 2016 Kazakhstan imposed a death sentence on one convict charged with a terrorism-related offense, but did not execute. This is the first time that Kazakhstan has used the death penalty since 2003 when the official moratorium on execution was launched, which continues to be observed. Furthermore, if the convict has been sentenced to death, he (she) is granted a right to plead for mercy¹³⁴; and the death penalty is not be imposed on a person who committed a crime at an age younger than eighteen years, on women and on men of sixty-three years old or over.¹³⁵ However, the current Criminal Code has already reduced the scope of the death penalty.¹³⁶ When compared with the Criminal Code of the Republic of Kazakhstan No. 167 of July 16, 1997 (as amended by the Law of the Republic of Kazakhstan No. 24-V of June 28, 2012) (с изменениями, внесенными Законом Республики Казахстан № 24-V от 28.06.2012 г), for the death penalty imposed on an older convict the present Criminal Code does not provide for the application condition of “by the time of the court passes judgement (и мужчинам, достигшим к моменту вынесения судом приговора шестидесятипятилетнего возраста)”, and it reduces the age limitation from 65 to 63. The Criminal Code of 2012 provided for the age limitation for the death penalty imposed on an older convict; i.e. that the convict be 65 years old by the time the court passes the judgment.¹³⁷ By law, the death penalty may be commuted to life imprisonment or imprisonment for the specified period with service of the sentence in the correctional colonies under a special regime; in the case of a cancellation of the moratorium on the execution of the death penalty, the convict under the death sentence shall have a right to plead for mercy irrespective of whether they have made this plea before the moratorium or not.¹³⁸ In this sense, the Kazakhstan government states that “in the context of Kazakhstan it is the actual abolition of the death penalty.”¹³⁹ However, the use of the death sentence in 2016 has to a great extent, already proved this statement to be false.

Russia is another European state which is a member of the Council of Europe and retains the death penalty in law, although it has never been carried out in judicial practice since the introduction of the Russian president’s “de facto ban on executions –- or ‘moratorium’–- to comply with Russia’s obligations to the Council of Europe”¹⁴⁰ in 1996. In addition, two decisions of the Constitutional Court, i.e., temporarily barring the death penalty on procedural grounds and suspending it indefinitely, but not irrevocably, have contributed to the prohibition of executions and the use of the death penalty in Russia.¹⁴¹ In accordance with the Criminal Code of Russia, the death penalty may be imposed only for especially grave crimes endangering human life, and it shall not be imposed on women, nor to persons who have committed offenses when under 18 years of age, nor to men who have reached 65 years of age by the time of adjudication; and it may be replaced by a pardon with deprivation of liberty for life or by deprivation of liberty for a term of 25 years.¹⁴² Currently, there are 5 crimes which may be punishable by death, i.e., murder (Article 105 (2)), an encroachment on the life of a statesman or a public figure (Article 277), an encroachment on the life of a person administering justice or engaged in a preliminary investigation (Article 295), an encroachment on the life of an officer of a law-enforcement agency (Article 317), and genocide (Article 357).¹⁴³ However, considering the anti-terrorism situation in Russia, in 2016, the AIGR points out that “some Russian politicians expressed support for the death penalty; in March (2016) they submitted a bill to the Duma to reinstate the death penalty for terrorism-related crimes; the government and the Supreme Court expressed their opposition to the bill in the same month.”¹⁴⁴

3.1.5 The Death Penalty and Its Reform in the USA

Considering the historical context of the death penalty in Europe and the USA, Professor Joshua Kleinfeld, in his paper “Two Cultures of Punishment” points out that “the European/American disagreement about capital punishment is not just an instrumental or practical disagreement about policy but a clash between two visions of justice”.¹⁴⁵ In this paper, he further argues that if capital punishment is ever just, then the right to life must be such as to be forfeit for the worst wrongdoing¹⁴⁶; if it is never just, then the right to life must be such as to never be forfeit¹⁴⁷; “Europe’s opposition to the death penalty reflects the belief that the right to life is never forfeit for any wrong.”¹⁴⁸ By contrast, American capital punishment represents the belief that ultimate wrongdoing deprives wrongdoers of worth.¹⁴⁹ Along with Japan, “the United States is the only high-income democracy in the world to retain capital punishment”.¹⁵⁰ Under the special federal regime of the USA, however, not all states in America retain the death penalty. As of November 9, 2016, there are 31 out of 50 states—and the Federal government and the military—which still use the death penalty, and among these 31 states, 4 states have the death penalty with gubernatorial moratoria, i.e., Colorado, Pennsylvania, Washington and Oregon¹⁵¹; 19 out of the 50 states—as well as the District of Columbia—have already abolished the death penalty.¹⁵² At the federal law level, i.e. the United States Code, there are 40 clauses providing for the death penalty for 40 criminal behaviors.¹⁵³ However, most of these 40 criminal behaviors are explicitly provided to be related to murder, i.e. 30 crimes are directly related to murder,¹⁵⁴ the 7 crimes punishable by death are those which have causing another person to die as their circumstance of application,¹⁵⁵ while there are 3 other crimes, namely espionage, genocide, and treason.¹⁵⁶ Therefore, it can be said that “the death penalty in the United States is used almost exclusively for the crime of murder.”¹⁵⁷ At the states’ level of the Criminal Code, most of the crimes punishable by death are murder or involve causing the victim to die.¹⁵⁸ Under these crimes punishable by death, the number of the death sentences imposed by the federal and states’ courts in the last ten years can be seen in the following Graph 3.5.

Graph 3.5

The numbers of death sentences in the USA from 2006 to 2016. From the above graph, we can see that the highest number of death sentences in the last ten years was in 2007, i.e. 126 offenders, 3 more than in 2006, while the lowest is 30 in 2016. The graph as a whole shows a significant decrease from 2006 to 2016. Death Sentences in the United States from 1977 by State and by Year, available at:  https://deathpenaltyinfo.org/death-sentences-united-states-1977-present (Last visited: January 20th, 2024)

According to a report by the Bureau of Justice Statistics, Capital Punishment 2014–2015-Statistical Brief, “by the end of 2015, 33 states and the BOP (the Federal Bureau of Prisons) held 2881 inmates under sentence of death, 61 fewer that at year end 2014, which is 2942, and it was the fifteenth consecutive year in which the number of inmates under sentence of death decreased.”¹⁵⁹ This decrease is mainly attributable to the reform and restriction of the use of the death penalty, as it has been said that “Americans have stuck with grim determination to the idea of the ultimate penalty even as other Western democracies have turned against it.”¹⁶⁰ Drehle David Von gives five reasons for this; despite decades of effort (to use the death penalty), we are not getting better at it; the crime rate in recent years has plunged; there are dwindling justifications; governments are going broke,¹⁶¹ and “the justices that themodern death penalty is a failure.”¹⁶² In recent years, some states have removed the death penalty from their states’ Criminal Code; these include Connecticut, which abolished the death penalty in 2012, Illinois in 2011, Maryland in 2013, and Delaware in 2016; in this latter case the Supreme Court held that the state’s capital sentencing procedures were unconstitutional and struck down Delaware’s death penalty statute.¹⁶³ 4 states have the gubernatorial moratorium—Colorado, Pennsylvania, Washington and Oregon.¹⁶⁴ Some American scholars have said that “the momentum of death penalty abolition and reform work can be attributed largely to a combination of the accomplishments of the innocence movement, the demonstrated exorbitant cost of the sentence, and the lengthy appeals process.”¹⁶⁵ Even though “justices all know that the modern death penalty is a failure”,¹⁶⁶ the public in the U.S. still shows great support for the death penalty, according to a report released by Gallup in October 2016, which showed that 60% of respondents still favor the death penalty, although this is the lowest level since 1972.¹⁶⁷ 41% of respondents thought that the death penalty is not imposed frequently enough, and 26% thought the frequency is right.¹⁶⁸ Therefore, the death penalty is still retained in the federal Criminal Code and a majority of states’ Criminal Codes.

Other than the death penalty, Life imprisonment without parole, serving as a sentencing alternative, is provided in the Criminal Codes of the 31 states in which the death penalty is still applicable, as well as the Federal Statute and the Military Statute.¹⁶⁹ In addition, except for Alaska, the Criminal Codes of the 18 states and the District of Columbia in which the death penalty has already been abolished provide for Life imprisonment without parole. Life imprisonment without parole had great public support in the public opinion poll in September 2014, in which 45% of respondends thought that life imprisonment without parole is the best penalty for murder, while 50% preferred the death penalty, and only 5% did not have any opinion.¹⁷⁰ Some American scholars point out that the emergence of life imprisonment without parole as the primary alternative punishment to the death penalty for capital crimes is the major reform in contemporary capital practice¹⁷¹; and the rapid rise of its use “can partly be attributed to a desire for a reliable, terminal punishment to replace the death penalty”.¹⁷² In practice, “since the widespread adoption of life imprisonment without parole in the mid-1990s, the imposition of new capital sentences and the number of executions have declined to levels not seen since the 1970s.”¹⁷³ However, we all know that life imprisonment without parole does, in fact, deprive the inmate’s rights to hope for rehabilitation and violates human rights; however, “the United States has been nonchalantly condemning tens of thousands of people to the ‘other death penalty’ with barely a legal or political whimper”.¹⁷⁴ Fortunately, it is criticized by many American scholars,¹⁷⁵ and the issues of life imprisonment without parole and the death penalty are discussed in the USA; the state of Alaska has repealed the death penalty and life imprisonment without parole and this will be a great example for other states in the USA to follow in the near future. All in all, Jordan M. Steiker argues, “the modern American death penalty—with its unprecedented costs, alternatives, and legal regulatory framework—seems newly vulnerable to judicial invalidation; reform of the death penalty and its abolition might well be on the same path.”¹⁷⁶

3.2 Conclusion

Historically, China is a capital punishment country, which has never removed the death penalty from its legal system. China will not completely abolish the death penalty de facto and de jure in the near future (some scholars say that it will take at least 30 years). This is the background to death penalty reform in China. In the Mao era, China was in a lawless period (even though there were some laws and regulations, they were barely used) and thus countless people were executed without any legal procedure and legal judgment; however, we cannot ignore the fact that the country implemented a policy of cautious and strict execution. Post Mao, the death penalty policy of cautious and strict execution was still taken as the effective policy. This changed a little in the Deng Xiaoping era, in which the execution legislation was expanded and the death penalty was used more frequently in judicial practice. Since the Deng era, the “strike-hard” movement—which is in fact a kind of revolution in the approach to crime—was introduced and implemented, and the death penalty in this period was deemed to be the best deterrent to curb crime. After Deng, in the Jiang Zemin era, a death penalty policy of cautious and strict execution was implemented again, but was expressed in another form, i.e. “killing cautiously and killing less”. In the Jiang era, the number of crimes punishable by death was kept at a same level and this situation continued to the early period of Hu Jintao’s premiership.

In the middle of the Hu era, in 2007, China took the first step to effectively control the use of the death penalty, namely, the power to review for all death sentences was restored to the SPC from the local High People’s Courts and the Military Courts, such that the SPC can now uniformly exercise the power to review and further improve the standards and conditions of evidence and the procedure involved in sentencing someone to death. Actually, this was a reform conducted from the perspective of judicial practice. At the end of the Hu era, China took the second step to reduce the possibility of the use of the death penalty, namely, repealing the death penalty for 13 crimes. Then, in 2015, the Ninth Amendment removed the death penalty from a further 9 crimes. In fact, these were two great steps for the reform of China’s punishment system. However, we cannot ignore the fact that the abolition of the death penalty for these 22 crimes is almost useless in reducing the possibility of the use of the death penalty, because the death penalty for these crimes was almost never used in judicial practice. At present, there are 46 crimes punishable by death, but we do not know how many people are sentenced to death and executed every year because this information is treated as a secret in China. According to the Amnesty International Report, around 1500 offenders are sentenced to the death penalty and executed annually. Even though China will not completely abolish the death penalty in the near future, the Party’s political document promises that China will gradually reduce the number of charges that could lead to the death penalty. Some scholars have pointed out that China will strategically remove the death penalty from the penalty system; namely, firstly repealing the death penalty for nonviolent crimes, and then abolishing the death penalty for violent but non-lethal crimes, and finally removing the death penalty for lethal crimes. Consequently, China will be able to completely abolish the death penalty de facto and de jure.

Outside of China, at the international level, as an obviously inhuman punishment, the death penalty is gradually being abolished de jure and de facto by more and more states. Even though it is still provided for in the Criminal Law, the judicial authorities have already taken many steps to limit and control its use. In the future, we can say that the death penalty will be completely removed from the penalty system around the world under the influence of the concept human rights. Obviously, however, the moment at which a state abolishes the death penalty does not have any connection with its economic and social development, or even with its democratic development. For instance, the USA and Japan are two important and democratic developed countries, but the death penalty is still provided in their criminal laws and used frequently, and many citizens in these countries are in favor of the death penalty. Therefore, to a great extent, the abolition of the death penalty is still in process, and steps to abolish it are also being taken slowly. However, we can also see that the reform of the death penalty has already been launched in these states.