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Capital Punishment in China CAPITAL PUNISHMENT IN CHINA: TOWARDS EFFECTIVE PUBLIC POLICY AND LAW LILOU JIANG Thesis submitted to the University of Ottawa in partial fulfillment of the requirements for the PhD in Law Common Law Section Faculty of Law University of Ottawa © Lilou Jiang, Ottawa, Canada, 2020 PhD Thesis ii Lilou Jiang Table of Content Acknowledgement ……………………………………………………………………….…..iv Abstract……………………………………………………………………………………….v Chapter 1. Introduction……………………………………………………………….……….1 1.1 Literature Review.......................................................................................................... 2 1.2 Objectives ..................................................................................................................... 9 1.3 Research Questions ..................................................................................................... 10 1.4 Theoretical Context & Methodology .......................................................................... 10 1.5 Chapter Structure ........................................................................................................ 16 1.6 Originality and Contribution ....................................................................................... 21 Chapter 2. A Unified Theory of Punishment: Confucian Sense of Justice……...………..…..23 2.1 The Place of Confucianism in Historical and Today’s China .................................... 24 2.2. A Confucianized Criminal Justice System in China .................................................. 30 2.3 Confucianism Punishment: A Framework Accommodating Multi-principles ........... 35 2.3.1 Solid Retribution—Desert & Proportionality ................................................... 36 2.3.2 Community-centric Rehabilitation & Mercy .................................................... 38 2.3.3 Stake-pursuing Deterrence ................................................................................ 43 2.3.4 The Expressive Function & Shame Culture...................................................... 45 2.3.5 Confucian Justification of the Death Penalty.................................................... 48 2.3.6 Ignorance of Defendants’ Individual Rights ..................................................... 56 2.3.7 The Institution of the Autumn Assizes ............................................................. 59 2.4 Public Perception of the Death Penalty ...................................................................... 63 2.5 Summary ..................................................................................................................... 68 Chapter 3. Sentencing Law and Policy: Death Penalty Reforms in China………….…….…69 3.1 The Embryonic Stage Criminal Law in 1979 ............................................................. 69 3.1.1 Sihuan : Death Sentence with Reprieve ............................................................. 73 3.1.2 Criminal Procedures for the Application of the Death Penalty ........................ 77 3.1.3 Strike Hard Campaigns from 1983 onwards ..................................................... 79 3.2 The Most Controversial Criminal Law in 1997 .......................................................... 88 3.3 Impetus for the Reforms in the Death Penalty Regime .............................................. 94 PhD Thesis iii Lilou Jiang 3.4 Reforms Promoting Procedural Justice in 2006-2010 ................................................ 97 3.5 The First Move to Reduce Capital Crimes in 2011 .................................................. 104 3.6 Completely Abolishing the Death Penalty for Economic Crimes in 2015 ............... 108 3.7 High-profile Cases Illuminating the Conception of Popular Justice ........................ 113 3.7.1 The Wu Ying Case .......................................................................................... 113 3.7.2 The Zheng Xiaoyu Case .................................................................................. 116 3.8 Summary ................................................................................................................... 119 Chapter 4. Harshness in the Death Penalty Realm of China…………………………..……121 4.1 Psychiatric Assessment for Capital Offenders with Mental Illness .......................... 122 4.1.1 A Thought-provoking Case............................................................................. 122 4.1.2 Legislation on Forensic Psychiatric Assessment in China ............................. 125 4.1.3 Stakeholders’ Roles in Mental Evaluation Process ........................................ 130 4.1.4 Stigma of Mental Illness in Chinese Society .................................................. 153 4.2 Torture: A Deeply-rooted Scourge in Police Investigation Practices ....................... 160 4.2.1 Confessions: The King of Evidence? .............................................................. 163 4.2.2 Investigations Operated on a Presumption of Guilt ........................................ 167 4.2.3 High Clearance Rate-oriented Investigation ................................................... 171 4.3 Suspending Death: Leniency with Dire Consequences ............................................ 178 4.3.1 The Court’s Reluctance to Exclude Illegally-Obtained Evidence .................. 178 4.3.2 Sihuan : Resulting from Sentencing with Reservation .................................... 181 4.3.3 An Invisible Hand Weighing Leniency and Severity ..................................... 185 4.4 Summary ................................................................................................................... 190 Chapter 5. Directions for Future Capital Punishment Reforms……………………...…..…192 5.1 China’s Response to Western Abolitionist Pressure and Criticism .......................... 193 5.2 Measures to Prevent Acts of Torture ........................................................................ 202 5.3. Statutory Guideline for Capital Sentencing ............................................................. 212 5.4 Elevating the Judicial Review of Sihuan .................................................................. 215 5.5 Summary ................................................................................................................... 217 BIBLIOGRAPHIES……………………………………………………………...…………220 PhD Thesis iv Lilou Jiang Acknowledgement First and foremost, the author wishes to express her sincere gratitude to her supervisor Professor John Packer and her research committee—Professor Joao Velloso and Professor Zhiqiu Lin for their helpful discussions and constructive comments which have contributed to this thesis. The author would also like to thank the Faculty of Law, the University of Ottawa, and the Ontario Graduate Scholarship for their financial support of her doctoral research. The author is also grateful to Mr. Marc Bann Garon for his insightful comments. Some final words of thanks go to the author’s family for their understanding and support. All views expressed and all errors in this thesis are entirely the author’s own. PhD Thesis v Lilou Jiang Abstract Based on an examination of the rationality and moral legitimacy of capital punishment in China, this research depicts the evolution of the Chinese death penalty law and policy from 1979 onwards; investigates the institutional and procedural shortcomings that lead to pre-trial torture, wrongful convictions, and executions of innocent or vulnerable people; and explores the prospects for restricting the application of the death penalty in retentionist China by focusing on feasible legal and policy changes to assure fair trials in capital cases. The key research questions to be addressed are: why capital punishment persists in China in an age of abolition; and if the abolition cannot be achieved in the foreseeable future, what reforms should be introduced to prevent miscarriage of justice? This research finds that the Confucian theory of punishment constitutes a compelling unified theoretical framework and establishes solid philosophical and ethical foundations for the introduction and persistence of capital punishment in China. Responding to the concerns expressed by and pressure from the international human rights community together with domestic calls for more caution in meting out capital punishment, China has launched a series of reforms in the death penalty regime since the middle of 2000’s which has resulted in a significant reduction in the use of the death penalty. However, it is also observed that: capital offenders with mental illness are at a substantial disadvantage in receiving psychiatric assessment and thus are at a high risk of being sentenced to death; police ill-treatment and torture are rampant due to the deeply-rooted presumption of guilt and the confession-oriented approaches predominantly employed in police investigation practices; and the procedural PhD Thesis vi Lilou Jiang loophole that suspended death sentence, although being a form of capital punishment, is not subject to review and final approval by the highest judicial authority has in effect condoned arbitrary sentencing in capital cases and consequently exacerbated the miscarriages of justice. It is concluded that the retention of capital punishment in China may be more impervious to abolitionists’ claims than other jurisdictions; hence, to improve its state competence in securing criminal justice, China should promote institutional and procedural changes in line with international human rights standards for protecting the rights of offenders facing the
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