Death Penalty Reforms in China: Lessons from Wrongful Convictions?

• Author: Jiang Na
• Pages: 127-150

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2013] DEATH PENALTY REFORMS IN CHINA 127

DEATH PENALTY REFORMS IN CHINA: LESSONS FROM

WRONGFUL CONVICTIONS?

JIANG Na

Abstract:

This paper examines the package of legislative and judicial reforms in China that followed the

discovery of several high-profile wrongful convictions in death penalty cases since 2005. The

goal of such death p enalty reforms was to protect human rights of the accused and prevent

future wrongful convictions more generally. Since 2005, there have been two waves of such

reforms. In order to understand the full e ffects of these two waves of reform, it is necessary to

consider their effect on the entire human rights process. This pape r will show that, if the

reforms are considered in this light, it i s clear that their intent has been frustrated by legal

loopholes in the death penalty system and that the root causes of wrongful convictions

involving capital cases have not yet been overcome in China. The legal loopholes allow death

sentences for non-violent crimes and traditional police and judicial practices to continue and

will lead to future wrongful convictions in capital cases. Although the 2011 Amendment to

Criminal Law of the PRC (Amendment VIII) greatly reduces the number of crimes publishable

by death in law and the 2012 Criminal Procedure Law of the PRC (CPL) brings more

transparency and accountability to criminal justice institutions, further reforms will be

suggested. First, China should completely abolish the death penalty for any non-violent crimes

in law and immediately suspend all death sentences and executions until a water-proof net to

prevent wrongful convictions can be established in practice. Second, an increased role of the

defence counsel should be emphasized in any proceedings of death penalty cases, and police

interrogations should b e fully recorded in order to play back an entire recording of

interrogations at trial. Finally, the use of state secrets as evidence against those facing the

death penalty should be curtailed.

I. INTRODUCTION

Wrongful convictions in death penalty cases are one of the

greatest problems facing China’s criminal justice system. Since

2005, there have been two major waves of death penalty reforms,

each of which was instigated by a high profile wrongful conviction

involving the death penalty. The first wave was mainly motivated by

discovering the wrongful conviction of SHE Xianglin and the second

primarily by identifying the wrongful conviction of ZHAO Zuohai.

As China’s response to such notorious wrongful convictions in

capital cases, both consecutive waves of death penalty reforms first

start from the SPC’s resumption of its power to review death

sentences in 2006, followed with revision of state compensation

regimes in 2010 as remedy for wrongful convictions, then

Amendment VIII in 2011 with a shrinking scope of the death

penalty, and basically ends with the latest reform in current criminal

procedure law of 2012. Unfortunately, each of these reforms proved

inadequate in part due to opposition from the police, the

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128 TSINGHUA CHINA LAW REVIEW [Vol. 5:126

procuratorate and the judiciary. Based on lessons from wrongful

convictions in capital cases, this paper will explain why the death

penalty reforms are more symbolic than substantive, and then

suggest further reforms and creative ways to ensure that these

reforms will actually be implemented.

II. DEATH PENALTY REFORM IN 2006: RESUMING THE SPC’S

POWER TO REVIEW

The highest court in China is called the Supreme People’s Court.

After the discovery and correction of SHE Xianglin’s wrongful

conviction, the SPC established its own tribunals to review all

sentences of death with immediate execution. The SPC also required

appeal courts to ensure that all capital trials are open to the public, so

as to increase transparency, enhance accountability and make it

easier to avoid wrongful convictions. These two reforms on the

SPC’s review power were delineated by the Standing Committee of

the National People’s Congress’s modification of the Organic Law of

the People’s Court in 2006.

A. Case Study

SHE Xianglin was convicted in 1994 of the murder of his wife,

ZHANG Zaiyu, in Hubei Province of Central China. The 28-year-old

security guard SHE was arrested by local police because of

identifying a female body with the dead body of Mr. SHE’s wife who

disappeared, and investigators badgered SHE in 10 days’

interrogation until he eventually confessed to the crime of murdering

his wife. During investigation, the female body was identified as his

wife in a medical expert evaluation report mainly based on the

probable similarities of both height and coincident time between

death and disappearance rather than DNA testing. Then, SHE

attempted to recant false confession at trial, but was not allowed to

ask for disclosure of evidence, to counsel before a case was

submitted to the court for trial or to cross-examination with the

prosecution, as he would be pursuant to the 1996 CPL or current

CPL.

Four months after the HPC remanded SHE’s case for retrial in

January 1995, his mother who provided ‘conscience witness’ on

SHE’s wife alive, were arrested for being falsely accused of the

crime of ‘covering up convicts’ at the detention center for over nine

months. Unfortunately, this new clue of the wife’s existence known

to police and judges was not regarded as evidence source of case