Li Changkui Sentenced to Death (Again), and the Bloodthirsty Crowd Goes Wild

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This case has made me nauseated from the start, and with today’s verdict, the worst has come to pass. Here’s what I wrote last month when the decision was made to retry Li after the original sentence, life is prison, was deemed too lenient:

The killer received a death sentence, which was suspended in favor of life in prison (this is common in China). After complaints from the family of the victim, among others, the provincial High Court in Yunnan has announced, four months after the death penalty was suspended, that the killer will be retried.

[ . . . ]

With this case, you have the final verdict of a court, one that is certainly not unusual and involves a degree of leniency. However, because the family of the victim is crying out for revenge, the court is going to take another look at the death penalty.

This is shocking. There is a time and a place in the sentencing process to hear from the victim’s family, but this is sort of ex post judgment public influence on a judicial decision is scary and calls into question the stability of China’s criminal justice system.

This case is freaking me out.

Just to be clear on the procedure here. You had a first trial in an Intermediate Court, which ended in a death sentence. The appeal went up to the High Court, which suspended the death sentence in favor of life in prison. In China, the appeal in a case like this, where the death sentence was set aside, should be the final verdict. But then, after the public outcry, the High Court said it would take another shot at it.

Well, the case is now wrapped up, and the High Court gave him the (expected, I guess) death penalty, sentence to be carried out immediately. If you are not familiar with capital punishment in China, that means that he’ll be whacked very quickly indeed.

This is appalling. Do I care about Li Changkui, a convicted rapist and murderer? Not at all, although I’m still an opponent of the death penalty.

But this is not about the death penalty, but rather monkeying around with court judgments after they’ve been handed down. That’s a very dangerous sort of thing, particularly in cases like this that involve grieving families and outraged citizens. Having an emotional public dictate revenge killing is so obviously a horrible precedent, you gotta wonder what the hell the court was thinking when it agreed to reopen the matter.

In the original trial, you had a rapist and murderer who had turned himself in and cooperated with authorities. He also offered restitution to the surviving family members, although they have subsequently alleged that the amount was insufficient. (Talking about the amount of money at all makes the family members come off poorly, in my opinion.)

Life in prison for that? A reasonable verdict, and one certainly within the discretion of the court. If someone cooperates and then still gets the death penalty, might this have a chilling effect on future perpetrators of violent crime? Don’t we want to motivate these guys to cooperate with the police?

There is a reason why this sort of thing is not allowed under many countries’ legal systems. One Chinese lawyer had this to say in a Caixin interview:

One criminal law expert who declined to be named said courts in China should operate in accord with the internationally accepted legal principle of “non bis in idem” – which means an appeals court cannot impose a tougher penalty.

“Regardless of whether an original judgment was right or wrong, a court cannot go back on its conviction and kill the suspect,” the expert said. “Doing that, in terms of a specific case, may be fair. But the damage to the overall rule of law environment would be very scary.”

The reference is to the Common Law concept of double jeopardy (non bis in idem is the Roman law term). There are numerous policy reasons behind the prohibition against double jeopardy, including the danger that such retrials will erode public confidence in the finality and integrity of the judicial process itself. And don’t we already have enough to worry about when it comes to confidence in the legal system?

What this case does is contribute to the problem of interference with the judicial process. You had a retrial that wasn’t based on a disputed point of law, but rather a public dissatisfaction with a verdict. What’s the one troubling aspect of the Chinese legal system that is brought up again and again by academics and practitioners? Lack of judicial independence.

Most of the time when we debate the issue of judicial independence, it’s within the context of political influence. Corruption, land disputes, dissidents, censorship — the list is obvious. But as we saw with the recent PX demonstrations in Dalian, public influence on government decision making can also be quite powerful.

Unfortunately, we have two competing ideas here. On the one hand, we want to safeguard the independence of the judiciary, ensuring that judges make their decisions by applying law to fact. On the other hand, the government has made it clear in recent years that judges should keep the public in mind (specifically, the effect of judgments on the public) when handling cases.

Supreme Court Chief Justice Wang Shengjun last year said a court’s capital punishment decision should hinge on public perceptions. Since civil rights have yet to take root completely in China, any perception that a murderer is being coddled can spark public outrage. (Caixin)

From this frame of reference, social stability trumps all else, which not only explains this case but also the result in incidents like the PX demonstrations in Dalian. Listening to the public and catering to its needs is admirable, but pandering to its bloodthirsty tendencies is scary. A proper balance is required, and the case of Li Changkui certainly didn’t help in that regard.

I remain freaked out over this case and am more troubled than ever by this trend.

17 responses on “Li Changkui Sentenced to Death (Again), and the Bloodthirsty Crowd Goes Wild

  1. S.K. Cheung

    I’m no lawyer, so these may be stupid questions.

    Is the “high court” the highest court in the land? Ie are they the equivalent of the supreme court?

    Is this really double jeopardy? They weren’t re-trying him for guilt or innocence. They were revisiting the sentence. That occurs in western legal systems too, does it not, if the prosecution or defense are unhappy with the sentence, they can appeal it?

    On the other hand, if we are talking the supreme court, it would be unsightly if they made the final decision…then went out and changed it. That would be like appealing the supreme court judgment (which you can’t) and asking the supreme court to change their mind (which they won’t…unless you’re in china).

    This is different from Dalian. I think it’s good for government to respond to people’s opinion. But I don’t think that is what the court is for. If people don’t like the law, their government should change it. That’s not the job of the court.

    1. Stan Post author

      S.K.:

      Not stupid questions. The High Court is the highest regional court. In this case, it is the provincial-level court. Specially-governed cities like Shanghai and Beijing (that are not part of a province) also have High Courts. Appeals from High Courts, when warranted, would go to the country’s Supreme Court.

      As to double jeopardy, I don’t know enough law in this area to say that this specific case would qualify. You’re right that this was not a totally new trial. On the other hand, with appeals in China, courts are empowered to look at issues of fact in addition to issues of law. That might make a difference.

      There is a principle in Common Law systems (not sure about Civil Law or others) that an appeals court in a criminal matter may not impose a tougher sentence. Obviously that does not hold true in China, but this is in part what that lawyer was complaining about in that quote.

  2. some guy

    Mob justice isn’t great, but for a lot of chinese in a lot of situations, its the only justice they’ve got. Without the money to out-bribe the other party, you lose every time.

    I get why you don’t like it, but freaking out about it is silly- it’s a symptom of the state of rule of law in china. Take Dalian, for example. If citizens had any real way of weighing in, or if politicians even had to pretend about getting votes, it may not have progressed to the point where 12,000 started stomping on People’s Square. In these court cases, you’re talking about a system that’ll get a vote of no confidence from Chinese people pretty much every time. Fix that, and then you can start worrying about the horrors of mob justice.

    1. Stan Post author

      Some Guy:

      Yes, this is what makes these cases difficult and why I’ve tried to be careful when writing about them over the past couple years. We like the result and recognize that without the public pressure, corruption or other factors would have led to a “bad” outcome.

      I recognize all this. But I’ve got one eye on the future, and these cases are really bad precedents. I believe that the judicial system in this country has improved and will continue to get better. This trend throws a wrench into those works.

      I can’t accept the contention that this sort of public pressure is acceptable in the short term until the system has been fixed. Once the fixing is done, I don’t think you can easily put the genie back in the bottle.

  3. some guy

    Let me put it this way: in these scenarios we have the courts being pushed around by people, instead of by money and the Party. I don’t think the former is by definition any worse than the latter- and neither is a substitute for the real thing.

  4. doggie

    May I challenge you on this case? Giving the convict a life sentence(or a suspended death penalty) in China could be, more often than not, translated into a fixed term imprisonment and then being released on bail for medical treatment a few years after the conviction is handed down. I believe the public outrage demonstrated during the Li Chuangkui case can be traced back to the pesudo-independent judicial system and the bitter disappointment at such a system. Therefore it is not surprising at all to find such an adamant insistence on immediate execution, coz the “the night is young” and a lot could happen behind the door.

    Back to your point of lenience or argument on capital punishment, I was wondering if you were thinking out of context (the Chinese context, that is). As a China-based expert, you might have come across the story of meat-eating Chinese emperor who travelled in the famine-ridden countryside and asked: “why don’t you guys try meat if the crop is failing?” Okay, does that strike a chord with you?

    1. Stan Post author

      I understand your point. Can’t go along with it, though. I never see implementing the death penalty as a solution to anything. Putting that aside, public discontent over an overly-lenient system should take the form of reform, not case-specific shenanigans like this. This is not the way to fix the problem.

  5. doggie

    Thanks for your feedback and if I may rephrase your reply this way:” better the devil you know than the one you don’t”, doesn’t it sound alright to you? So even at the price of public frustration and distrust/disillusionment (which could lead to a more disastrous consequence than anyone could imagine in China), you still prefer holding fast to the moral high ground and refuse to see the social dynamics of the debate over capital punishment? Sigh.

    1. Stan Post author

      Hold fast to moral highground? Well, yeah, that sounds pretty good. More important though, I think the entire judicial system, and the future, is more important than public opinion about this one case. I don’t think there would have been riots in the streets if this guy was simply locked up for life.

      1. doggie

        Well, obviously our concerns over this issue are quite different. As a Chinese, I am pretty much troubled by the growing public discontent that is being added up daily by cases like this until it reaches the tipping point. While as an American expatriate, (I have the feeling that ) you couldn’t care less about the implications of locking up this guy for life, coz it is not your home anyway. I am sure you will win more support, internationally, over the importance of future judicial system VS public opinion, but, but, just try to imagine you were in the shoes of an ordinary Chinese citizen whose grandparents suffered enormously during the WW2 and whose parents wasted a substantial part of their life in the 20-year long political campaign/chaos and he himself is right now trying to eke out a decent life, can you afford to court another social unrest?

        I am NOT arguing that death penalty should NOT be abolished in China. It should be abolished when society has progressed to a certain stage, but not at this moment in China. And cases of the so-called double jeopardy, I believe, are a necessary evil in current China (excuse me for the somewhat extremist remarks ). Our major difference is over TIMING: on the one hand I believe stopgap measures, no matter how unsightly they might be, should be taken before the operation starts; on the other hand you don’t have to worry about things like social unrest and you don’t have to bear any responsibility for not being able to foresee it. There is a typical Chinese saying/behaviour which we call “the idle onlooker doesn’t feel the waist pains of hard-working guy “. Again, strike any chord?

        1. Stan Post author

          Strike a chord? Not at all. I’ve been a lawyer here in China for 12 years, so I’m not sure that the usual “You’re a foreigner and therefore don’t care about the country or its legal system” is such a good argument. It’s also ad hominem, which tells me that you’re giving up on the substance of your argument, which is a sign of rhetorical weakness.

          Look, we can differ on this. I am looking long term and at the legal system as a whole. You are looking short term and at public opinion. I get it, I just disagree with your emphasis. But there’s no need to throw out the charge that I don’t care about the country. Indeed, I believe that having an independent judiciary is a much more important thing for this country to have than ensuring what some folks think of as justice in this one case.

          1. doggie

            LOL. Thanks for talking straightforwardly about the rhetoric. Let us put it this way: in my previous reply I gave out (well ,not “give up on”) quite a few reasons why as a local Chinese I have more scruples and, naturally, have to exercise more discretion in cases like this. In contrast, the rhetorical weakness you are supposedly immune from is only a numerical symbol of 12 years. Does living in a foreign land long enough legitimize your empathetic consideration for that nation?

            By the way, I am a bit amused by your “your-foreigners-don’t care ” statement. You know what? I have been very careful, from the very beginning, not to touch your nerves on this coz I never, ever stereotype people. Period.

            Yes, let’s agree to disagree, and I apologize for any uncomfortable innuendos in this message, but could you also do me a favour? I am feeling a bit upset by your charges of ” pandering to its bloodthirsty tendencies”, so fair enough?

          2. Stan Post author

            Presumably, one doesn’t even have to live in a country to care about it. On the other hand, I think 12 years should at least give folks pause before claiming an absence of empathy. :)

            Sure, not everyone who supports the decision is bloodthirsty. On the other hand, I am very uncomfortable with a lot of people calling for the death of someone (anyone, actually). I don’t even think Bin Laden should have been executed, so I am at least consistent. This whole call for death goes against my own personal morals, I guess. But yeah, that’s just me.

  6. S.K. Cheung

    This may set a troublesome legal precedent. But “rule of law” in China as it currently stands is a bit of a bad joke anyway. This is a bad precedent, just as many things Chinese courts have done over the years are bad precedents.

    Maybe when China gets its rule-of-law junk together, she will start with a clean slate at that point, and decline the urge to reference questionable legal precedents established in the current and bygone eras (ie. in times before she had robust rule-of-law).

    1. Stan Post author

      That’s a common belief regarding rule of law here. I’ve seen the judicial system come a long way, though, and I think that we now have a lot to build on. We don’t need bad precedents, and this case definitely wasn’t worth making an exception anyway.

      1. S.K. Cheung

        Thanks for answering my earlier questions. So in theory, the case could still be appealed to the Supreme Court. Wonder if that will happen.