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.