Death penalty in China: The law and the practice

Journal of Criminal Justic

Death penalty in China: The law and the practice

Hong Lua,T, Lening Zhangb

aDepartment of Criminal Justice, University of Nevada, Las Vegas, NV 89154-5009, United StatesbDepartment of Behavioral Sciences, Saint Francis University, P. O. Box 600, Loretto, PA 15940-0600, United States

Abstract

China is a nation that carries out the death penalty with a broad scope in its transition to a market economy. The present

study described and analyzed the legal concept and practice of the death penalty in China in a comparative context. It presented

an overview of the Chinese legal tradition of the death penalty, the legal development of the death penalty since the Chinese

Communists took power, and the current practice of the death penalty in China. It represented an attempt to offer a research-

based understanding of the capital punishment in a nation that was experiencing significant change and transformation since the

early 1980s.

D 2005 Elsevier Ltd. All rights reserved.

Introduction

The death penalty is a major concern in the legal and

humanitarian fields. Information about the death penalty in

China was limited and studies on the death penalty in China

were relatively rare. Since the economic reforms and the

bopen doorQ policy instigated in the early 1980s, increasing

attention was given to the death penalty in China.

The current study represented an attempt to describe and

explain the law and practice of the death penalty in China

from a historical, political, social, and cultural perspective. It

focused on the recent legal development on the death

penalty with discussions of the pertinent clauses stipulated

in the 1997 Criminal Law and 1996 Criminal Procedural

Law. The analysis drew upon several sources including the

1979 Chinese Criminal Law, the 1997 Criminal Law, the

1996 Criminal Procedural Law, the 1996 Amnesty Interna-

tional death penalty log, a survey of 520 published death

penalty cases from 1984 to 2000 in China (see Appendix A

for a list of the case collections),1 and a review of related

0047-2352/$ - see front matter D 2005 Elsevier Ltd. All rights reserved.

doi:10.1016/j.jcrimjus.2005.04.006

T Corresponding author. Tel.: +1 702 895 0242; fax: +1 702 895

0252.

E-mail address: [email protected] (H. Lu).

literature on law. The main objective was to present a

preliminary study of China’s death penalty in a comparative

context.

A historical overview of the death penalty in China

A paradoxical approach with regard to capital punish-

ment could be observed in Imperial China: harshness and

rigidity versus humanity and flexibility. Law in Imperial

China was primarily concerned with family affairs, crimes

of violence, and crimes against the state. The harsh and rigid

aspect of punishment was due to the strong penal emphasis

of the imperial law. A common feature shared by penal

codes of many ancient dynasties was the stipulation of

bharsh and precise punishmentsQ. For example, a system of

bfive punishmentsQ always carried a death penalty (Bodde &

Morris, 1967).2 The death penalty primarily took three

forms in ancient China: strangulation, decapitation, and

slicing of the body. The public executions were aimed at

educating and deterring the general public into obedience

and allegiance with the government.

In contrast to the harsh and rigid treatment of offenders

under imperial law, the Confucian approach to crime and

punishment was much more humane and flexible. Con-

e 33 (2005) 367–376

H. Lu, L. Zhang / Journal of Criminal Justice 33 (2005) 367–376368

fucians believed that bsocial order was best maintained by

the consensual means of exemplary conduct on the part of

the ruler and a willingness to compromise on the part of the

ordinary people, and that when punishment was regrettably

necessary, it had to be accompanied by education in order

that the offender might be reformedQ (Palmer, 1996, p. 108).

The humanitarian values of Confucian ideology were

against punishment of disadvantaged classes; for example,

the elderly, the infirm, minors, and other special categories

of individuals were exempted from having the death penalty

imposed on them in imperial China.

Since the establishment of the People’s Republic of

China in 1949, there were two competing views with regard

to crime and punishment. One was the informal and

revolutionary approach inspired by Mao’s ideology of

continuous revolution and class struggle. This populist

approach often relied on ad hoc people’s tribunals,

summary justice, and harsh punishment to dispense justice

(Palmer, 1996). During the 1950s and the 1960s, the death

penalty was applied quite extensively, primarily targeting

political offenses-the counterrevolutionaries (Lepp, 1990, p.

1002). In contrast, the Soviet model inspired a more formal,

bureaucratic, and codified legal framework. Though the

formal legal ideology did not take a primary role during the

earlier decades of the Chinese socialist construction, it

started to gain recognition by the late 1970s (Lepp, 1990).

The passing of the 1979 Criminal Law and the 1979

Criminal Procedural Law marked the end of the lawlessness

era and the beginning of a system by law.

Scobell (1991) summarized several features common to

socialist countries (e.g., China, Cuban, the former East

Germany, and the former Union of Soviet Socialist

Republics) with regard to the use of the death penalty.

First, socialist countries were generally committed to the

abolishment of the death penalty, at least in theory. Indeed,

the Chinese government had long claimed that crime would

wither away as the socialist system progressed into

Communism and the death penalty was only relied on

temporarily to deal with the crime problem (Leng & Chiu,

1985). Second, as the countries were in favor of the death

penalty, socialist countries purported that the death penalty

was reserved only for the most serious offenses. Third, the

justification for the death penalty in socialist countries was

its deterrent or educative value. As a Chinese high court

official said: bwe sentence people to death not to seek

revenge but to educate others-by killing one we educate one

hundredQ (Lee, 1986, p. 47). Finally, public opinion tended

to be strongly in favor of the death penalty in these socialist

countries.

China, however, along with other former socialist

countries, was experiencing great reform and change since

the socialist system began collapsing in the 1970s. An

interesting research question is: What is the legal status of

the death penalty and how do the Chinese deal with various

issues surrounding the death penalty in this reform context?

Since China began moving towards a market economy, it

witnessed a sharp increase in criminal activities. Official

statistics reported an increase of a total crime incidence of

340 percent and a ten-fold increase in serious crimes from

1979 to 1990 (Curran, 1998; Rojek, 1996). In 1978, the

crime rate was 55.91 per 100,000. It reached 163.19 per

100,000 in 1998 (Liu & Messner, 2001). Violent and serious

offenses were also surging. For example, the robbery rate in

1998 (about 10.8 per 100,000) was about five times higher

than that in 1978 (about 2.8 per 100,000) (Liu & Messner,

2001). New offenses, especially offenses related to eco-

nomic activities (e.g., counterfeiting currency and credit-

card fraud), emerged and exploded.

Scholars also observed a shift of the Chinese emphasis

on informal control to formal control during this transition

from a planned economy to a market economy (Rojek,

2001; Troyer & Rojek, 1989). bUnder Mao’s regime, the

routine methods for social control were continuous revolu-

tion and class struggle rather than the enforcement of legal

statutesQ (Zhang & Messner, 1999). The brule of lawQ hadnever taken roots and the legal system was never fully

functional, particularly during the Cultural Revolution of

1966–1976. It was only after Mao’s death, that China’s new

leadership began a shift from the brule of manQ to the bruleof lawQ as the economic reform and the open door policy

were carried out. The emphasis on formal control in the

post-Mao era, manifested in the area of law, was the

formalization and codification of various practices that in

the past were primarily regulated by administrative regula-

tions and customary laws. Statistics indicated that China’s

National People’s Congress promulgated approximately a

total of 185 laws during the nineteen years from 1978 to

1997, which was seven times the total number of

promulgated laws (approximately twenty-six) during the

twenty-seven years from 1950 to 1977 (see Young, Chen, &

Gan, 1998 for a detailed bibliography of these promulgated

laws from 1950 to 1997). The proliferation of laws in the

post-reform era reflected the Chinese realization of the

importance of law and a legal order in building a stable,

modern, and an open society.

Given the rising criminal activities and the changing

emphasis from informal to formal control, it was interesting

to study the legal status of, and practice in, the death penalty

in China. The death penalty was argued, in many legal

systems, as a great deterrent. While the global trend in the

abolition of the death penalty was becoming apparent

(Hood, 2002), how the death penalty was used in the

changing context of China remained uncertain. The present

study represented a preliminary effort to address these

critical issues using available data sources.

The legal development of death penalty in the People’s

Republic of China

Laws with regard to the death penalty changed markedly

since the establishment of the People’s Republic of China,

H. Lu, L. Zhang / Journal of Criminal Justice 33 (2005) 367–376 369

especially after the economic reforms of the 1980s. These

changes were reflected in both substantive and procedural

laws. The first Criminal Law since the establishment of the

People’s Republic of China was passed in 1979 (Kim,

1982), which included twenty-eight capital offenses (Cai,

1997). Among these capital offenses, fifteen were counter-

revolutionary offenses (e.g., overthrowing the political

power of the dictatorship of the proletariat and the socialist

system, Article 103). The remaining capital offenses, as

defined by the criminal law, included eight offense types on

endangering public security (e.g., arson, Article 106), three

offense types on infringing on personal rights (e.g., murder

and rape, Articles 132 and 139), and two offense types on

property crimes (e.g., robbery and corruption, Articles 150

and 155).

In response to surging crime waves and emergence of

new offense types during the course of economic reforms

since the 1980s, some provisions of the 1979 Criminal Law

were subsequently amended with decrees passed by the

Standing Committee of National People’s Congress.3 As a

result, the scope of capital offenses was dramatically

increased from the previous twenty-eight offense types to

seventy-four offense types before the revision of the

Criminal Law in 1997.

The 1997 Criminal Law (Luo, 1998) formalized and

legalized many of the temporary measures instigated since

the economic reforms of the 1980s. The Law extended the

number of capital offenses to sixty-eight different types

stipulated in ten broad crime categories: (1) crimes of

endangering national security; (2) crimes of endangering

public security; (3) crimes of undermining the socialist

market economic order; (4) crimes of infringing upon the

rights of the person and the democratic rights; (5) crimes of

encroaching on property; (6) crimes of disrupting the order

of social administration; (7) crimes of endangering the

national defense interest; (8) crimes of graft and bribery; (9)

crimes of dereliction of duty; and (10) crimes of violating

duties by military servicemen. Among these broad offense

categories, the only category that did not carry capital

offenses was bcrimes of dereliction of dutyQ (for a detailed

classification of these crimes, see Appendix B).

In comparison with the 1979 Criminal Law, the newly

added capital offenses in the 1997 Law tended to

concentrate on areas of public security, economic order,

and corruption. Crimes of endangering public security, such

as terrorism and hijacking, and firearm control, carried a

maximum punishment of the death penalty under the new

law. Moreover, crimes that undermined the economic order

such as smuggling and producing and distributing fake and

shoddy goods were now capital offenses. Changes were also

made with regard to corruption offenses. In the 1979 law,

corruption was categorized under the section of offenses of

encroaching on property. It was now an independent crime

category, separated from other property and economic

offenses. This stipulation reflected a growing recognition

among Chinese lawmakers and political leaders of the

epidemic of corruption problems (Zhang, 2001). In addition,

the legal definition of corruption was much clearer in the

current law with separate offenses including graft, bribery,

and embezzlement, among which, graft and bribe-taking

were capital offenses under the current law.

According to the 1996 Criminal Procedural Law (CPL)

(Luo, 2000), there were four levels of courts in China: basic-

level, intermediate, higher, and the Supreme People’s

Courts. All four levels had a criminal division. The basic-

level courts had jurisdiction over ordinary criminal cases as

courts of first instance (1996 CPL, Article 19). The

intermediate courts had jurisdiction as courts of first

instance over cases of endangering national security,

common crimes that carried a maximum punishment of life

imprisonment or death, and crimes committed by foreigners

(CPL, Article 20). Higher courts as courts of first instance

had jurisdiction over cases of great importance that affected

an entire province (CPL, Article 21). The Supreme Court

had jurisdiction as the court of first instance over cases

having a major impact on the entire nation. All courts except

the basic-level courts had jurisdiction over appeals from

lower courts and the Supreme Court had authority of final

approval over death penalty cases.

The 1979 Criminal Procedural Law (Chinalaw website,

Chinalaw no. 40) stipulated that jurisdiction over capital

cases in the first instance lay with the intermediate courts

(Article 15). It allowed convicted defendants one appeal to a

higher-level court within ten days of the conviction. When a

defendant appealed, the criminal penalty might not be

increased; however, if the prosecutor appealed, a more

severe sanction might be imposed (Article 137). The law

further provided that for death penalty cases, if the

defendant did not appeal, a death sentence would be

automatically reviewed by a higher court. All death penalty

sentences shall be reported to the Supreme People’s Court

for final approval.

Since the economic reforms, the process of arrest,

adjudication, and the sentencing of death penalty cases

were streamlined.4 For example, in 1981, the Standing

Committee of the National People’s Congress issued a

decision regarding the approval of cases involving death

sentences for the period between 1981 and 1983 (Davis,

1987). The approval decision granted the right to approve

death sentences for violent crimes and crimes threatening

the public safety (e.g., murder, robbery, rape, and explosion

and arson) to the higher courts and retained the power to

approve death sentences for counterrevolutionary offenses,

corruption, and economic offenses (e.g., bribery, smuggling,

and drug trafficking) to the Supreme People’s Court. In

1983, the Supreme People’s Court issued a resolution

formalizing the higher courts’ authority to approve death

sentences for violent crimes and crimes threatening the

public safety. Furthermore, a 1983 decision by the National

People’s Congress reduced the time limit for requests for

appeals from ten days to three days to expedite the

adjudication of capital crimes (Davis, 1987).


The appeal and the review process for the death penalty

cases stipulated in the current 1996 CPL were more similar

to that in the 1979 CPL. For example, the current CPL

stipulated that death sentences shall be verified and

approved by the Supreme People’s Court (Article 199)

and the time for appeal after conviction was ten days.

According to the Supreme People’s Court’s recent inter-

pretations of the CPL (Luo, 2000, Article 274) and the

Organic Law of the People’s Court, the Supreme People’s

Court, however, when deeming necessary, could still grant

the power to higher courts to verify and approve death

sentences in certain types of cases.

The practice of the death penalty in China

The actual application of the death penalty in China was

not merely a legal matter, but reflective of political and

social climate of the time. Official reports of death penalty

cases were also influenced by the political and social climate

of the time. It was extremely difficult to have valid and

reliable data to conduct an accurate assessment of the

practice of the death penalty in China. The present study

presented an attempt to present a preliminary profile of the

practice using available sources such as officially published

death penalty cases in China and the annual reports from the

Amnesty International. Although the validity and reliability

of these sources were questionable, the data derived from

these sources might allow one to have a tentative and

preliminary assessment of the practice of the death penalty

in China with cautions.

A broad scope of the death penalty

It was well known that China was among one of few

countries in the world that had actively and widely imposed

the death penalty on ordinary crimes. While there seemed an

agreement that no systematic official statistics were avail-

able on this subject, studies citing Amnesty International

(1989–95) suggested that during the two decades of the

1980s and the 1990s, there were between 200 and 2,000

executions each year in China. Moreover, studies suggested

that death penalty population was primarily composed of

violent offenses (e.g., murder, rape, and robbery) and only

marginally contributed by economic offenses and political

offenses (Felkenes, 1989; Leng & Chiu, 1985; Scobell,

1991).5

Based on the 1996 Death Penalty log published by the

Amnesty International on China, a recorded 6,145 people

were sentenced to death. Among them, convicted offenses

were known in 4,490 cases. Out of these 4,490 death penalty

cases, 66.4 percent involved violent crime (e.g., murder,

robbery, rape, and abduction of women and children), 2.9

percent involved economic and corruption related cases

(e.g., graft and fraud), and an approximately 13 percent

involved drug trafficking.

The survey of 520 published death penalty cases

revealed that out of the ten broad offense categories

stipulated in the 1997 Criminal Law that had at least one

offense type punishable by the death penalty, these sample

cases encompassed only six broad crime categories. More

specifically, there were twenty-six offenses against the

public security,6 forty-two economic crimes,7 284 violent

offenses,8 forty-one property offenses,9 fifty-one offenses of

disrupting social orders,10 and seventy-six corruption

cases.11

The expansion in the number of capital offenses and

active imposition of the death penalty in many of these

offense categories in China seemed contradictory with the

international movement on the abolishment of the death

penalty. By the end of 1995, while eighty-two out of 191 (43

percent) nations worldwide retained the death penalty, the

remaining 109 countries (57 percent) had either completely

abolished the death penalty (sixty nations), abolished the

death penalty for ordinary offenses (fourteen nations,) or

had been de facto abolitionists (thirty-five nations) (Hood,

2002).

The Chinese pattern on the use of the death penalty also

contradicted with its former socialist counterparts in Eastern

Europe (formerly socialist countries). With the collapse of

the Communist regime in Eastern Europe, countries such as

Moldava, Ukraine, Albania, and Bosnia-Herzegovina abol-

ished the death penalty in 1995. The Russian Federation

began its commitment to abolish the death penalty in 1996

and became a de facto abolitionist due to rare executions in

recent years.12

Perhaps the only nation that is comparable with China in

its expansion of the death penalty is the U.S. The U.S. is the

only Western developed nation that retains and uses the

death penalty for ordinary crimes. At the state level where

death penalty is legal (in thirty-seven states currently), it is

primarily reserved for first-degree murders. The Federal

Death Penalty Act of 1994, however, stipulated an

approximate sixty capital offenses, which included murder

of federal officials, treason, espionage, and felonious drug

offenses.

Death penalty with suspended execution

Scholars studying the death penalty in China invari-

ably noted the unique death penalty practice-the two-year

suspension of execution for death penalty (Lepp, 1990;

Palmer, 1996). The 1979 Criminal Law stipulated that

bin the case of a criminal element who should be

sentenced to death, if immediate execution is not

essential, a two-year suspension of execution may be

announced at the same time that the sentence of death is

imposed, and reform through labor carried out and the

results observedQ (Article 43). The law further specified

that if the offender showed remorse, after the completion

of two years, the death penalty shall be commuted to life

imprisonment; if the offender showed remorse and had


meritorious services, after two years, the death sentence

shall be reduced to fifteen to twenty years of imprison-

ment; however, if the offender refused to be reformed,

after two years, the death penalty shall be carried out

(Article 46).

The 1997 Criminal Law retained the stipulation in the

previous law about the suspended death sentence. The new

law, however, changed the conditions of commutation from

the death sentence to a lighter sentence. In the original

criminal law, offenders’ attitude of contrition was crucial in

sentence reduction. In the new law, the offender’s deeds

became a major factor. More specifically, the 1997 law

stated that bif a person. . .does not intentionally commit a

crime during the period of the stay, his punishment shall be

commuted to life imprisonment upon the expiration of the

two-year period; if he performs substantial meritorious

service, his punishment shall be commuted to fixed-term

imprisonment of not less than fifteen years no more than

twenty years. . .; if it is verified that he has committed an

intentional crime, the death penalty shall be executed upon

the order or approval of the Supreme People’s CourtQ(Article 50).

If there are any concerns about the arbitrariness of the

death sentence decisions, more concerns should be on the

death sentences with a stay of execution. In law, the death

sentence may be suspended when bimmediate execution is

not essential.Q In practice, the following offender and

offense characteristics are likely to be considered for the

suspended death sentences: (1) offenders voluntarily turned

themselves in and/or performed substantial meritorious

service (e.g., helping law enforcement officials capture

other offenders or providing important information about

unsolved crimes); (2) other offenders in gang crimes while

the ring leaders have already been executed; (3) victims

shared some responsibility for the crime; (4) to save live

evidence; and (5) offenders have overseas connections

(Chen, 2002).

Recent years saw severe imposition of death sentences

on offenders who would have qualified for a suspended

death sentence for voluntarily turning themselves in. The

survey of 520 cases revealed that of the total thirty-two

cases in which offenders voluntarily turned themselves in,

offenders in twelve of these cases, received the death

penalty without suspension. A corruption case was illumi-

native for this purpose. The defendant, taking advantage of

his official duty as a chief inspector of the Zhenjiang

customs, took millions of Yuan in bribery money and

allowed smuggling goods getting through the customs. The

judge reasoned that the defendant’s criminal activities had

resulted in bcountless losses in taxes,Q had an extremely

negative influence on the borganization’s work ethics,Q andseriously undermined the bintegrity of the government.QDespite that the defendant voluntarily returned some bribery

money and showed remorse, the judge reasoned that the

nature of his offense was so grave and its social effects were

so negative, the death penalty was the only appropriate

punishment in this case to deter and educate the public and

to serve justice.

The recent trend of formalizing the death sentences and

reducing the impact of the attitude on death sentences

marked a departure from the traditional Chinese legal

culture that emphasized the correctional value of offenders’

confessions. This was different from Japan, which still

preserved the cultural tradition of contrition, repentance, and

forgiveness by murder victim’s family members in death

sentence decisions (Coyne & Entzeroth, 2001).

Minors exempted from death penalty

The 1979 Criminal Law stipulated that only persons of

eighteen years or older could be punished by death. If the

crime was particularly grave, however, offenders of sixteen

or seventeen years old when the crime was committed,

could receive the death penalty with a two-year suspension

of execution (Article 44). The 1997 Criminal Law retained

the minimum age requirement of eighteen years old for the

death penalty and repealed the stipulation of young

offenders (between sixteen and seventeen years old) to

receive the death penalty with suspended execution (Mao,

1999, p. 105).

Studies on the death penalty in China suggested that

young people were disproportionately more likely to be

given the death penalty. It was estimated that at least 50

percent of offenders executed in recent years were between

eighteen and twenty-five years old (Palmer, 1996). The

survey of the 520 capital offenses revealed that the mean age

of the death penalty was 32.51 years old. The youngest

offender sentenced to death was sixteen years old13 and the

oldest offender was sixty-seven years old.14 The mean age

of the death penalty offenders was 42.47 years old for

corruption cases and 28.89 years old for violent crimes.

Age is one of the critical issues surrounding the death

penalty debate. Executing a minor is generally regarded

inhuman because of their less developed mental and

psychological capability than adults. A U.N. resolution

stipulated that no young person under eighteen should be

subject to the death penalty. Moreover, in some countries,

restrictions were applied to offenders’ maximum age.15

Women under special circumstances exempted from the

death penalty

Pregnant women continue to be exempted from the death

penalty in China. This is consistent with the international

standards. Non-pregnant women, however, are suspected of

receiving special treatment for death penalty decisions in

practice in some countries. For example, only about 1.5

percent of all death row inmates are women in the U.S.

(Bedau, 1996).16 In other countries, women are excluded

entirely from the death sentences by law. For instance, all

women are exempted from the death penalty in the Russian

Federation (Van Den Berg, 1996).


In China, due to a wide variety of offenses punishable by

death sentence, especially among them, nonviolent econom-

ic offenses, it should be easier for women to commit a

capital offense and be sentenced so. As the survey showed,

among the 520 death penalty cases, 8.5 percent of the

defendants were women, which was much higher than that

in the U.S. If, however, looking only at female offenders

sentenced to death for violent offenses, which was more

likely to be the case in the U.S., the difference between the

two countries became much smaller. The data showed that

about 5 percent of the female offenders received the death

penalty for violent offenses.

The changing appeal process for death penalty cases

The appeal process for the death penalty cases changed

back and forth in China. For example, during the strike hard

campaigns in the 1980s and 1990s, the Supreme People’s

Court’s authority to approve the death penalty was, from

time to time, undermined to expedite the case process. In

addition, the legally guaranteed ten-day grace period for a

defendant to file an appeal after the trial was cut down to

three days during the period of 1983 to 1997.

The survey of the 520 death penalty cases confirmed that

the Supreme People’s Court’s authority to approve the death

penalty cases was often undercut. For example, only about

30 percent of the 520 cases were reviewed and finally

approved by the Supreme Court. Across the six offense

categories, all cases involving corruption and public order

offenses (e.g., drug trafficking) were reviewed by the

Supreme Court, whereas only a few violent and property

offenses were reviewed by the Supreme Court.

The time for a death penalty case moving from arrest to

final approval varied tremendously. For example, the

average time between arrest and verdict of the first trial

was 242 days, and among them, the shortest time for a case

to receive a verdict from the first trial was three days, and

longest was 1,160 days.17 The average time between the

first trial and the second trial/review was seventy-seven

days, and among them, the shortest time for a case to receive

a verdict from the second trial/review was two days, and the

longest was 810 days.18 The average time for a case to be

processed from arrest to final approval of execution was 102

days. The shortest review conducted by the Supreme Court

was two days, and the longest was 1,223 days.19

Legal representation became a requirement for cases

facing a maximum punishment of the death penalty. As the

1996 Criminal Procedural Law stipulated, bin cases where

the accused may be sentenced to capital punishment and he

does not retain any defenders, the people’s court shall

appoint a lawyer, who voluntarily is undertaking a legal aid

obligation, to defend himQ (Article 34).

Though international standards regarded legal represen-

tation as defendants’ fundamental rights for a fair trial, a

defense attorney had never achieved equal status in China.

Studies revealed that only about 20 percent of criminal trials

had legal counsel in China (Lu & Miethe, 2002). The survey

of 520 death penalty cases suggested that out of the 347

cases, of which information about legal representation was

provided, an approximate 70 percent of these death penalty

cases had legal representation. Given that only after the

1996 Criminal Procedural Law, legal representation became

a requirement for capital cases, the data indicated that after

1997, only three out of the 120 cases were without legal

representation. In all three cases, based on the court case

judgment documents, defendants declined the appointment

of attorneys and decided to represent themselves in court. In

1996, twenty out of fifty cases were without legal

representation. The law was effective after October 1,

1996, thus it might be assumed that the cases already

started its proceeding when the law became effective.

Summary and discussion

The present study reviewed the legal tradition on the

death penalty, analyzed the legal development on the

death penalty since the Chinese Communists took over

power, and examined the current practice of the death

penalty in China. The assessment revealed several

interesting observations.

China has two distinctive legal traditions on the death

penalty. The legalistic tradition emphasizes the importance

of the death penalty for order maintenance, whereas the

humanitarian tradition stresses the educative and reformative

value of the death penalty. Though paradoxical, both of

these traditions have had a significant impact on the Chinese

perspective and usage of the death penalty. Which tradition

takes a priority seems to be largely dependent upon the

social and political climate. When the social conditions are

relatively stable, the humanitarian tradition is likely to

prevail. Yet, when social conflicts become acute and crime

rates are surging, the legalist deterrence tradition appears to

be dominant.

Historically, China was a bcrime-freeQ society with its

extremely low crime rates. Surging crime rates accompanied

the economic reform and the bopen doorQ policy since the

1980s. Facing the challenge of rising criminal activities, it

was not surprising that China increased the number of

capital offenses from twenty-eight in the 1979 Criminal Law

to sixty-eight in the 1997 revised Criminal Law. This

expanded scope of capital offenses and the current practice

of heavy reliance on the death penalty could be observed as

a legal reaction to the sharply surging crime waves.

Also observed was a shift of the application of capital

punishment in China. During Mao’s time, the primary

target of the death penalty was political offenses-the

counterrevolutionaries. The 1979 Criminal Law included

twenty-eight capital offenses. Among these capital

offenses, fifteen were counterrevolutionary offenses. As

the nation was moving towards a market economy,

however, new types of offenses emerged and many of


these offenses were economic in nature. As a result, a large

proportion of capital offenses stipulated in the 1997 revised

Criminal Law were related to, and/or stemmed from,

economic activities (e.g., credit-card fraud, graft and

bribery, and drug trafficking). This shift of punishment

represented the Chinese attempt to use legal measures to

help maintain a new economic order.

Another observation was the discrepancy between blawon the bookQ and blaw in action.Q Given that China was one

of the few nations extensively employing the death penalty,

one major concern was the procedural justice. Critical issues

such as forgoing the legally stipulated waiting time for

appeal, competent and effective legal representation, rights to

remain silent, and confession need to be addressed to ensure

a fair criminal proceeding for the defendant. For example,

during the strike-hard campaign of crime in 1983–84, the

ten-day grace period for filing an appeal was cut down to

three days in order to speed up the processing of criminal

cases. This was especially crucial given the traditional

inferior status of the law in China (1966–1976) (Eliasoph

& Gruenberg, 1981; Leng & Chiu, 1985; Ren, 1997).

Finally, the dramatic expansion of the scope of capital

offenses reflected the Chinese heavy reliance on the death

penalty as a legal measure in curbing the surging crime

waves during the transitional economy. It represented a

sharp contrast with the global abolition movement, espe-

cially among the former socialist countries of East Europe.

Although criminal activities were also soaring in most of

these East European countries as they were trying to merge

into the Western capitalist system, all of these countries had

either completely abolished the death penalty or had

abolished the death penalty in practice (e.g., the death

penalty was temporarily suspended in the Russian Federa-

tion. As a result, no death penalty sentence has been granted

since 1996) (Hood, 2002). One possible explanation of this

divergent death penalty development among the socialist

countries was that these countries might have more

humanitarian tradition and were eager to be integrated into

the Western capitalist system. In contrast, the Chinese

traditionally adopted more pragmatic attitudes towards the

death penalty. While some experts argued that the applica-

tion of the death penalty to economic offenses was to

devalue human life in favor of material value (Ma, 2004),

many were in favor of this practice for pragmatic reasons.

Whether and how capital punishment evolves in China will

be largely dependent upon its social and political develop-

ment in the future.

Appendix A. List of case collections

Cao, Jianming (2000). Renmin fayuan anli xuan 1992–

1999 (selected cases from the People’s Courts-1992–

1999). Beijing: China Law Publishing House.

Zhu, Mingshan (1994). Zhongguo shenpan anli

yaolan-1993 xingshi anli juan (selected Chinese

Criminal Court cases-1993). Beijing: Chinese Uni-

versity of People’s Public Security Publishing

House.

Zhu, Mingshan (1995). Zhongguo shenpan anli yaolan-

1994 xingshi anli juan (selected Chinese Criminal Court

cases-1994). Beijing: Chinese University of People’s

Public Security Publishing House.



cases-1997). Beijing: Chinese People’s University Pub-

lishing House.



cases-1998). Beijing: Chinese People’s University Pub-

lishing House.

Appendix B. Capital offenses stipulated in the 1997

Criminal Law*

Crimes of endangering national security (Article 113)

! Plotting to jeopardize the sovereignty, territorial integrity,

and security of the country

! Instigating to split the country

! Organizing, plotting, or carrying out armed rebellions, or

armed riots

! Organizing, plotting, or acting to subvert the political

power of the State

! Espionage

! Stealing, secretly gathering, purchasing by bribery, or

illegally providing the national secrets or intelligence for

foreign institutions

! Providing the enemy with armed equipment or military

materials

Crimes of endangering public security (Articles 115, 119,

121, 125, and 127)

! Arson

! Breaching dikes

! Causing explosions

! Poisoning

! Threatening public security with dangerous methods

! Sabotaging transportation instruments

! Sabotaging transportation infrastructures

! Sabotaging electric power

! Sabotaging inflammable or explosive facilities

! Hi-jacking an aircraft

! Illegally manufacturing, trading, transporting, and mail-

ing guns, ammunitions, or explosives

! Illegally trading or transporting nuclear materials

! Stealing or snatching guns, ammunitions, or explosive

materials

! Forcibly seizing guns, ammunitions, or explosive

materials


Crimes of undermining the socialist market economic

order (Articles 141, 144, 151, 157, 170, 199, 205, and 206)

! Producing or distributing bogus medicines

! Producing or distributing poisonous or harmful foods

! Smuggling weapons and ammunitions

! Smuggling nuclear materials

! Smuggling counterfeited currencies

! Smuggling cultural relics

! Smuggling precious metals

! Smuggling rare plants and their products

! Counterfeiting currency

! Illegal fund-raising fraud

! Financial instrument fraud

! Letter of credit fraud

! Credit-card fraud

! Illegally issuing value-added tax invoices

! Counterfeiting or selling counterfeited value-added tax

invoices are capital offenses

Crimes of infringing upon the rights of the person and

the democratic rights (Articles 232, 236, 239, and 240)

! Murder

! Rape

! Statutory rape

! Kidnapping

! Abducting women and children

Crimes of encroaching on property (Articles 263 and 264)

! Robbery

! Theft

Crimes of disrupting the order of social administration

(Articles 295, 317, 328, 347, and 358)

! Imparting criminal methods

! Organizing a jail break

! Prison riots using weapons

! Illegally digging and robbing ancient remains or tombs

! Illegally digging or robbing fossils of ancient human

beings or fossils of ancient vertebrate animals

! Smuggling, trafficking, transporting, or manufacturing

narcotics

! Organizing another person to engage in prostitution

! Forcing another person to engage in prostitution

Crimes of endangering the national defense interest

(Articles 69 and 370)

! Sabotaging military weapons, military installations, or

military communications

! Knowingly providing unqualified weapons or military

installations to the armed forces

Crimes of graft and bribery (Article 383)

! Graft

! Bribe-taking

Crimes of violating duties by military servicemen

(Articles 421, 422, 423, 424, 426, 430, 431, 433, 438,

439, and 446)

! Refusing to carry out an order in wartime

! Deliberately concealing military intelligence, furnishing

falsified intelligence

! Refusing to disseminate military orders, or falsely

disseminated military orders

! Surrendering to the enemy

! Deserting on the eve of a battle

! Obstructing commanding officers or on-duty servicemen

from carrying out their duties

! Defecting to a foreign country

! Illegally obtaining military secrets

! Illegally providing military secrets to foreign organs

! Fabricating rumors to mislead people during wartime

! Stealing or robbing weapons or military materials

! Unlawfully selling or transferring military weaponry

! Injuring or killing innocent residents or looting property

from innocent residents during wartime

* Source: Chen (2002) and Luo (1998).

Notes

1. The collections usually included typical death penalty cases

that were identified by legal officials and experts as examples for

legal study and practice. They provided basic case information such

as gender, age, and offense types.

2. According to Liu (1998), bfive punishmentsQ had two

versions. The original bfive punishmentsQ was created in the Shang

Dynasty, including bMoQ (branding), bYiQ (cutting off a personTsnose), bFeiQ (cutting off a personTs feet), bGongQ (cutting off a male

offenderTs reproductive organ or detaining a female offender for life),

and bDa PiQ (various forms of the death penalty including

decapitation, slicing, and burning the offender to death).The newer

form of the bfive punishmentsQ was more lenient, involving bChiQ(beating offenders with a light bamboo for a maximum of fifty

strokes), bZhangQ (beating offenders with a heavy bamboo for sixty to

one hundred times), bTuQ (enslave offenders for one to three years),

bLiuQ (exile), and bShiQ (death penalty by decapitation or hanging).

3. According to Chen (2002), the following decrees passed by

the Standing Committee of National PeopleTs Congress after 1980and before 1997 carried additional capital offenses that were not part

of the 1979 Criminal Law. For example:

! The 1981 Decree on Punishing Military Personnel Who

Derelicts Their Military Duty stipulated thirteen capital offenses

including theft of military secrets, theft of military equipment,

voluntarily surrender to enemies, and looting and torturing

innocent civilians during a war.


! The 1982 Decree on Severely Punishing Those Who Disturb the

Economic Order stipulated seven new capital offenses. They

were smuggling, profiteering, theft, habitual theft, stealing and

illegally exporting precious cultural relics, drug trafficking, and

bribe-taking.

! The 1983 Decree on Severely Punishing Those Who Threaten

Public Security added ten capital offenses including hooligan-

ism, intentional assault, stealing or trafficking weapons,

pimping, abducting and selling human beings, and teaching

others with criminal techniques.

! The 1988 Supplementary Regulation on Punishing Those Who

Leak National Secrets stipulated one capital offense which was

stealing, secretly gathering, purchasing by bribery or illegally

providing the national secrets or intelligence for foreign

institutions.

! The 1990 Decree on Prohibiting Narcotics made transporting

and manufacturing illicit drugs a capital offense.

! The 1991 Supplementary Regulation on Punishing Illegally

Digging and Robbing Ancient Remains or Tombs made it a

capital offense.

! In 1991, the Resolution on Severely Punishing Those Who

Abduct and Sell Women and Children stipulated three capital

offenses: abducting and selling women and children; abducting

women and children, and kidnapping and extortion.

! The 1991 Resolution on Prohibiting Prostitution and Pimping

stipulated two additional capital offenses: organizing others in

prostitution, and forcing others into prostitution.

! The 1992 Decree on Punishing Those Who Hi-jack an Aircraft

made hi-jacking a capital offense.

! The 1993 Resolution on Punishing Those Who Produce and Sell

Fake and Shoddy Products stipulated two capital offenses:

manufacturing and selling fake medicine, and manufacturing

and selling poisonous foods.

! The 1995 Resolution on Punishing Those Who Disturb the

Financial Order stipulated that currency counterfeiting, fraudu-

lent fund-raising, fraud with financial instruments, and credit-

card fraud were all punishable by death.

! The 1995 Resolution on Punishing Those Who Issue, Counter-

feit, or Sell Special Value-added Tax Invoices stipulated that

illegally issuing value-added tax invoices and counterfeiting or

selling counterfeited value-added tax invoices were capital

offenses.

4. In 1980, the Standing Committee of the PeopleTs Congressissued a resolution allowing the higher courts to approve the death

sentences for major violent offenses such as murder, rape, robbery,

and arson to the higher courts, upon the Supreme PeopleTs CourtTsauthorization. In 1981, the Standing Committee of the PeopleTsCongress issued another resolution clarifying the scope and the time

period of the higher courtsT approval authority in death penalty cases(see the text). On September 2, 1983, the Standing Committee

through the revision of the Organic Law of the PeopleTs Courts,

reiterated that when necessary, the Supreme PeopleTs Court might

authorize the higher courts the power to approve death sentences in

violent offenses. On September 7, 1983, following the Standing

CommitteeTs resolution, the Supreme PeopleTs Court issued a

resolution formalizing the measures of expediting the process of the

death penalty cases by authorizing higher courts the power to approve

death sentences for major violent offenses (Chen, 2002).While the

Supreme PeopleTs Court still retained the power to approve death

sentences for counterrevolutionary, corruption, and economic

offenses, due to regional disparities, the Court authorized, in

1991 and 1993 respectively, the higher court of Yunnan and

Guangdong provinces the power to approve death sentences for

drug trafficking offenses, with an exception of those drug

trafficking cases tried by the Supreme PeopleTs Court and involving

foreigners (Chen, 2002).

5. Even though the death penalty was disproportionately less

likely to be applied to economic crimes, Felkenes (1989) stated that

overall, a significant number of crimes were imposed with the death

penalty where there was no loss of human lives in China.

6. Offenses against the public security included nine cases of

illegal trading of guns or ammunitions, two cases of arson, one case

of setting fires and causing explosions in public, three cases of

poisoning, five cases of sabotaging electric power, four cases of

stealing guns and ammunitions, and illegal trade of explosions.

7. Economic offenses included twelve cases of producing and

distributing fake and shoddy goods, one case of causing death with

fake medicine, seven cases of smuggling, one case of illegally

issuing value-added tax invoices, eighteen cases of profiteering,

three cases of fraud with financial instruments, and one case of

currency counterfeiting.

8. Violent offenses included six intentional assaults, 112

murders, 110 robberies (robbery was classified as a property crime

under the Chinese Criminal Law, however, to make it consistent

with Western literature, robbery cases were grouped with violent

offenses), one homicide, ten rape cases, fifteen kidnapping cases,

fourteen cases of public humiliation and molestation of women by

violence and coercion (hooliganism), and sixteen cases of abduction

of women and children, and human smuggling.

9. Property offenses included thirty-nine thefts and two cases

of fraud.

10. Crimes of disruption of social orders included thirty-four

cases of smuggling, trafficking, transporting and manufacturing

narcotics, nine cases of organizing and forcing prostitution, and

eight cases of organized jailbreak or prison riot.

11. Corruption cases included forty-eight graft offenses and

twenty-eight cases of bribe-taking.

12. In 1990, Russia executed seventy-six criminals. Only

three and four criminals, however, were executed in 1993 and 1994

respectively, marking the commitment of the Russian Federation on

the abolishment of the death penalty.

13. Five offenders, sentenced to death for violent offenses,

between sixteen and seventeen years old at the time they committed

the crime, were all tried and sentenced before 1997.

14. This offender was a high-ranking governmental official,

sentenced to death for committing graft.

15. For example, in the Russian Federation, no one over

sixty-five years old shall be subject to the death penalty (Van Den

Berg, 1996). In Japan, being too old constituted a ground for

clemency of the death sentence (Coyne & Entzeroth, 2001).

16. This might be explained by the fact that most of the death

sentences were given to first-degree murderers, and women who

committed murders typically killed their intimates. Intra-familiar

murders rarely qualified as first-degree murder.

17. It took three days for an intermediate court (first trial) to

reach a death penalty verdict in a murder/robbery case in 1995. The

longest first trial that reached the death penalty decision was in a

case of an economic crime in 1997.

18. The shortest second trial/review conducted by a high court

was in a corruption case in 1993. The longest second trial/review

conducted by a high court took 810 over a robbery case in 1991.


19. The shortest final review by the Supreme Court was in a

corruption case in 1989; and the longest review by the Supreme

Court was a theft case, reviewed in 1996. It took 1,223 days to

finish.

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Death penalty in China: The law and the practice

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