贺卫方 | China's debate on the death penalty becomes increasingly open

Megha Rajagopalan | The Christian Science Monitor | Sep 28, 2011

http://www.alaskadispatch.com/article/chinas-debate-death-penalty-becomes-increasingly-open?page=0,1

Megha Rajagopalan（她取了一个中文名字李香梅）撰写了一篇关于中国近期死刑案件和死刑论证的文章，发表在昨天出版的《基督教科学箴言报》上。今天上午，文章重点讨论的死刑案主人公李昌奎被执行死刑。转发此文，也算是对于这起死刑的一个记号吧。贺卫方

Li Changkui, a southern Chinese farmer charged with raping and murdering a teenage girl before killing the girl’s 3-year-old brother, was tried for the third time in a Chinese court late last month. Both the evidence and charges against him were virtually the same as those of his previous trial, but this time he was sentenced to death.

Months earlier, the Yunnan Provincial High Court had given Mr. Li a lighter sentence tantamount to life imprisonment – overturning a lower court’s death sentence. But the high court’s leniency sparked a massive public outcry demanding that Li be sentenced to death. “If Li Changkui doesn’t die, there is no law in China!” a commenter in an online forum wrote.

It was this onslaught of public pressure that ultimately led to an unusual decision to retry Li.

Li’s case, the latest in a series of controversial death penalty decisions, shows that the increasingly open debate on death penalty reform in China can be a double-edged sword: Though the contingent of lawyers, scholars, journalists, and judicial officials who advocate for reform has grown, so has the ability of the general public to pressure courts to change sentences perceived as too lenient – a development some say verges on mob justice.

“When it comes to popular will, I’m conflicted,” says Liu Renwen, a legal scholar at the Chinese Academy of Social Sciences. “On one hand, when the public holds the courts accountable, it prevents problems like corruption, and that’s a positive function. But on the other hand, [in this case] it seems like popular will has too much power.”

World’s leader in executions

China infamously executes the largest number of people in the world per year. Amnesty International pegs the figure in the thousands, but the true number is a state secret. Though there are relatively few intellectuals in China who favor completely abolishing the death penalty, judicial reform advocates say there is growing support for reducing the number of death penalty sentences courts hand out.

That movement reached a milestone in February, when an amendment to China’s criminal code struck down 13 charges from the list of crimes punishable by death, including smuggling historical relics and evading taxes. The amendment was heralded as evidence of the government’s commitment to reducing the number of criminals put to death.

“The Supreme People’s Court in the past three to five years has been working hard to reduce the number of death sentences,” says He Weifang, a legal scholar at Peking University and longtime activist for judicial reform. “But when it meets with cases that spur major public indignation … the Supreme People’s Court basically can’t endure the pressure that comes from public opinion and the Party. They can only apply the death penalty.”

The exact relationship between public pressure and Li’s retrial is unclear. Legal scholars say it is unlikely that public pressure alone forced the court to change the sentence, but most point to it as a dominant factor.

Courts under pressure

Courts are constantly under pressure not to appear “soft on crime,” says Jon Kamm, executive director of the San Francisco-based Duihua Foundation, which conducts research on the death penalty in China. “If you’re constantly handing down unpopular decisions, it will affect your chances for promotion,” he explains.

In China, microblogs and online forums have become a kind of megaphone for critics. After the high court’s first ruling, the victim’s family posted messages online decrying the decision and calling for Li to be executed.

The messages struck a chord with netizens across China, turning a local murder case into a national story.

Despite the wave of criticism after the Yunnan Provincial High Court issued its first sentence, it initially appeared that the court was willing to stand behind its controversial decision. Tian Chengyou, the court’s deputy chief justice, defended the court’s decision to reduce Li’s sentence at a press briefing July 6. Tian pointed out mitigating factors in Li’s case, including that Li agreed to compensate the victims’ family and that he turned himself in.

“Society should be more rational,” Mr. Tian told journalists. “We can’t sentence someone to death because of public anger.”

But just days later, the court announced its decision to hold the retrial. On Aug. 22, a crowd of villagers formed around the municipal courthouse where the retrial was taking place. The crowd stayed past dusk, shouting and brandishing signs, Chinese news media reported.

The cries for blood in response to the Li case mirrors another high-profile death penalty case this spring, in which a university student murdered a young woman to cover up a hit-and-run accident. Like the Li case, that case also elicited an outpouring of public rage, particularly drawing on perceptions of the defendant’s privileged family background.

Legal experts say it’s still too early to determine whether these cases will have any long-term impact on how public opinion shapes court rulings in China.

“The real problem isn’t public opinion; it’s that the courts just aren’t independent enough,” says Xu Zhiyong, a well-known legal scholar and human rights activist. “That’s what’s not as it should be.”