China has
had a lengthy history of inflicting the death penalty. In modern China, the
death penalty is issued as punishment for sixty-eight crimes, ranging from
murder to distributing pornography and bribing public officials, and the
country is believed to carry out over ninety percent of the world’s executions.
(Dryer 2008: 179) Although utilized throughout much of China’s past, the usage
of the death penalty is believed to have increased significantly in the
post-Mao era. (Scobell 1990: 513) The penalty has largely been instituted on
the basis of its perceived ability to act as a deterrent to criminal activity. Deng
argued that the penalty was an “indispensible means” to deterring future criminal
activity of the populace, and the Criminal Procedure Law of 1979 that he
propagated with its promotion of the death penalty embodied the notion that the
execution of each single individual would serve as “a warning to a hundred” (Scobell
1990: 505; Hood 2002: 53). Similarly, President Hu has seen execution as a way
to “ensure the healthy progress” of his anti-crime campaign in its effort to
deter would-be criminals (Amnesty 1997: 1). Although the death penalty may
serve other purposes in the interest of justice, its implementation in China
should not be based on the flawed assertion that it deters crime in China any
more than would the prospect of lifetime imprisonment.
First, no relevant studies of the
death penalty and its ability to have a lasting deterrent effect on crime have
been conducted to prove the merit of such an argument. On the contrary,
available evidence suggests that the implementation of the death penalty and
the increase in its usage during China’s “Strike-Hard” campaigns has actually
served to raise the crime rate in those areas punishable by death. Scholars
have argued that the 1983-84 “Strike Hard Campaign” failed to achieve any
long-term deterrent effect; in actuality the 1984 crime rate was 49.9 cases per
one-thousand population, and by 1990, this number had increased to 210,
representing a four-fold increase in the crime rate. (Bakken 1993: 31)
Furthermore, the campaign failed to deter juveniles from joining violent gangs,
then responsible for much of China’s overall crime rate; and by 1986, young
people under the age of twenty-five accounted for over ninety-three percent of
the composition of such gangs. (Trevaskes 2002: 689) Similarly, in the period
following China’s 1996 Strike-Hard Campaign, the number of recorded crimes rose
significantly, and between 1996 and 2000, the crime rate more than doubled.
(Trevaskes 2002: 687) Finally, in the years following the 2001 Strike-Hard
Campaign, crime rates were once again on the rise, and in 2004, seven percent
more arrests were made than the year prior. (CECC 2005: 2) The recent
occurrence of public, roadside executions on Route 302 in Jiangxi Province of
those convicted of highway robbery also demonstrates the extent of the death
penalty’s inability to deter crime; as two months after the punishment was
instituted, the same crimes were being perpetrated again in the same location.
(Amnesty 1997: 3) Statistics such as these have led some theorists to argue
that the existence of the death penalty contributes to the “brutalization” of
their respective societies, actually serving to increase the rate of crime.
(Hood 2002: 211) At the very least, it cannot be doubted that increases in the
usage of the death penalty in China has failed to act as a long-term deterrent
to crime.
The existence of a weak legal
system in China is such that those seeking to participate in crime would not
weigh the consequences of their actions before committing offenses. The
likelihood of getting caught is very slim, and if offenders are indeed caught,
they maintain the ability to resort to bribery. (Svensson
2001: 2) Scholars
have found that Chinese judges routinely accept bribes in exchange for
favorable judgments. (Minxin A 2005: 1) Since 2004, over one-thousand Chinese
judges were removed from their posts on the basis of their alleged
participation in judicial corruption. (Xie 2007: 1) In the context of a weak
system of law enforcement coupled with a seemingly impenetrable culture of
corruption, it is unlikely that a rational individual would view the minute
risk being caught, finding themselves unable to bribe public officials, and
potentially receiving the death penalty as a sufficient inducement to deter
their actions.
Many convicted criminals often
assert after the fact that they are legal illiterates in the sense that they
were unaware of the illegality of their actions or the extent of the punishment
they were likely to receive after the fact (so-called famang) (Svensson 2001: 2) China’s history of having an
underdeveloped legal system and its use of a decentralized, informal, societal
model of law enforcement has contributed to the extent of the problem. (Dryer
2008: 169) In fact, judges are often recruited from the military with no formal
legal training, and have themselves been known to be “legal[ly] illiterate”
(Michelson 2003: 263). Without a clear understanding of what is illegal and
what punishments are inflicted to violators of the law, it would be impossible
to deter offenders before committing crime; regardless of the extent of
penalty.
China’s lack of an independent
judiciary and the interconnectedness that exists between judicial
decision-making and the volatile political agenda leads to unpredictability
both in the degree of enforcement of established laws and in the extent of
punishment carried out after the fact. (Minxin A 2005: 2) Criminal offenders
are made eligible for the death penalty when their crime is considered
“serious,” a term that is open to interpretation. (Monthy 1998: 206) In
addition, there is a significant discrepancy between localities, whereby
offenders committing the same type of crime in two different jurisdictions are
often subjected to very different penalties. (Howie 1996: 5) Furthermore, the
death penalty is applied sporadically, as many offenders are given a suspended
sentence during which time they are required to participate in hard labor; and
if they repent sufficiently, their sentences are reduced to terms of
imprisonment. (Hood 2002: 178) Studies have shown that Communist Party members,
a group that commits a substantial proportion of crime in China, receive
special treatment by the judicial system and are significantly less likely to
be executed than non-CCP members. (Scobell 1990: 517) According to the Carnegie
Endowment for International Peace, less than six percent of Chinese politicians
accused of corruption since 1982 have actually been prosecuted, and only twenty
percent were dropped from the ranks of the party. (Minxin B 2007: 4) The mere existence of the death
penalty, if unlikely to be used against them, would not deter their actions. With
capital punishment unpredictable, and its application inconsistent and
arbitrary, how can its existence possibly deter criminal activity?
Judging from the arguments
presented above, one may be convinced that the death penalty would deter crime
if social problems were corrected, such as reducing the instances of judicial
corruption, improving law enforcement capabilities, establishing a more
structured sentencing regimen to ensure that those that commit certain crimes
are subjected to the death penalty, and improving the knowledge of the
population with regards to the law. However, studies of comparative data refute
this claim, instead showing there to be no correlation between the inflicting
of the death penalty as punishment and a lower rate of crime, even in political
systems where such problems are not pervasive. For example, U.S. states that do
not have the death penalty have almost systematically had lower murder rates
than states that do enforce the death penalty. (DPIC 2007: 1) A 2000 study
conducted by The New York Times demonstrated that ten out of the twelve U.S.
states without the death penalty had lower murder rates than the national
average, while half of the states in which the death penalty was a valid
punishment had murder rates above the national average. (Hood 2002: 216)
Canada, a country that has systematically banned the death penalty had by 1999
seen its homicide rate decline by forty-three percent since the death penalty was
abolished in 1976, prior to which time the rate had been steeply increasing.
(Hood 2002: 214) Similar evidence can be seen internationally. For instance,
Canada has seen a substantially lower rate of violent crime, including
homicide, assault and robbery when compared to the United States. (Daily 2001:
2) European countries without the death penalty have similarly enjoyed a lower
rate of crime vis-à-vis the United States. (Barclay 2002: 8) Based on this
information, a growing body of experts has refuted the deterrent effect of the
death penalty; and a 1995 study of the American Society of Criminology
concluded that 80 percent of American criminologists did not believe the death
penalty to deter homicide. (Radelet 1995: 1) Thus, comparative data demonstrates
that the assumption that the fear of execution is stronger than the prospect of
life imprisonment so as to deter would-be criminals is flawed- irrespective of
the socio-political context in which it is implemented.
It can be argued that the issue of
whether the death penalty is a deterrent to crime is not of significance, but
rather, the perception of it being a deterrent is what affords the Chinese
government popular support. This may very well be the case, however in the
midst of growing evidence to the contrary, how long can the Chinese government
expect to maintain support in that regard if its advocacy of the death penalty
is based on flawed evidence? Furthermore, many make the argument that the death
penalty exists as a way to provide those harmed by heinous crimes a method by
which to attain retribution. However, what is at issue is not the validity of
the death penalty itself, but the grounds on which the death penalty is
justified. Although retribution is perhaps a valid and useful argument in favor
of the death penalty, Chinese leaders have advocated for the death penalty
primarily on the grounds of its deterrence effect. If retribution is a primary
sentencing goal brought about by capital punishment, it should be purported as
such.
In summary, China has long issued
the death penalty as punishment on the basis of its supposed ability to deter
crime. Numerous arguments have been made that challenge this assumption. First,
evidence demonstrates that China’s increase in usage of the death penalty during
its various Strike-Hard Campaign’s have done nothing to reduce China’s
long-term crime rate; if anything, it appears as though its existence has
increased the rate of crime. China’s weak legal system is such that criminal
offenders often fail to see themselves as subject to its precepts or likely to
face penalty for their actions. Judicial corruption is a method by which
offenders can circumvent legal strictures and avoid facing penalties, and its
perception challenges the notion that the mere existence of the death penalty
will deter their actions. In addition, with a constantly evolving legal system
and a history of un-codified law, many Chinese citizens are legally illiterate
and lack an adequate understanding of what actions are illegal and the extent
to which violators are punished; an understanding without which, no penalty
would be sufficient to act as a deterrent to crime. Also, the death penalty is
often applied inconsistently and arbitrarily, rendering its existence unlikely
to deter crime. Although it may be argued that the correction of social
problems would render the death penalty a plausible deterrent to crime,
comparative data refutes that claim, showing instead that jurisdictions without
extensive problems that utilize capital punishment have seen a substantially
higher rate of crime than those jurisdictions without it with regards to crimes
specifically punishable by death. Although the implementation of capital
punishment may be justified on its ability to fulfill other sentencing goals, it
should not be promoted as a tool by which to deter crime.
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