I’ve been writing of the dangers of mob justice a lot recently, and the death penalty is a major part of the discussion. Legal reform here has focused on application of the death penalty, with significant progress made in the past couple of years. The number of crimes eligible for the death penalty has been reduced, and the Supreme People’s Court is now a direct participant in capital cases.
It seems that the government is trying to wean China off the death penalty. But is there any pushback on these reform measures? Yes, says an editorial in the Global Times:
The Supreme People’s Court has vowed to reduce the use of capital punishment, and the country is under international pressure to do so, the biggest resistance seemingly comes from the public.
[ . . . ]
How to make headway in reducing instances of the death penalty now largely hinges on the attitude of the public. Even among legal scholars, support for dropping the death penalty is a minority view.
How to explain this attitude? There are many historical and cultural answers to this question, but I just want to point out three of the most relevant ones.
1. Foreign pressure – This issue has been presented as China vs. the West, and when that happens, China usually resents the morality play. It’s true that a lot of pressure about application of the death penalty comes from Western groups, and certainly the Europeans come to this issue with clean hands.
But look what happens when the issue involves foreign criticism:
Clemency is a general trend around the world, and wearing the crown for “executing the largest number of criminals” has embarrassed China. We can hardly blame the Chinese public for their lack of leniency. (Global Times)
See that? It seems obvious to the author that China is more likely to support the death penalty because foreign pressure has embarrassed it.
2. The Tough Guy factor – Notice that language above? It includes “leniency” and “clemency.” This is a completely different perspective from a lot of anti-death penalty folks from the West. Speaking for myself, I have never seen my position as one of “leniency” or “clemency.” In fact, I could give a shit about these criminal defendants and reducing their sentences.
What I do care about is justice and fairness, ensuring that only the guilty are punished and not the innocent. For me, this is a pragmatic, not a moral, discussion. As long as those two issues are a problem (and in the U.S., they are certainly unresolved), then it makes little sense to apply the death penalty.
This suggests to me that opponents of the death penalty in China, faced perhaps with an overzealous population looking for payback (this is arguable, of course), need to stop appealing to moral notions of leniency and should look instead to practical procedural matters that call into question whether the system is fair and just.
3. Self-criticism – When I talk about justice and fairness, I am suggesting that the system of applying the death penalty (in China, the U.S. or anywhere else) is imperfect, and using an imperfect system to kill people is something we should try to avoid.
I think people understand this a lot better if they have a clear idea of how flawed their criminal justice system is. In the U.S., this became clear after government and private studies revealed endemic racism, DNA tests showed that innocent folks had been executed, and the study of psychology explained that human observation and memory is shockingly inaccurate.
In China, everyone knows that the criminal justice system has problems, but we do not have the same sort of deep academic body of work explaining exactly why and how the system is flawed that we have in the West. If this information was available and disseminated to the public, it would be much easier to then say to the public “Now you understand why the death penalty is not a fair or just option.”
The Global Times article, in explaining why the public wants the death penalty, also discussed deterrence and fear that incarcerated murderers will bribe their way to early releases. These are important issues, but studies on the deterrent factor of the death penalty are notoriously inconclusive, and the problem of bribery is part of a much bigger government problem.
If the government is serious about this, the discussion has to move away from the notion of leniency, which is a loser argument to sway a pissed-off public, towards the procedural problems of the criminal justice system itself.