China shows caution on death penalty

By John M. Glionna, Los Angeles Times, January 7, 2008

BEIJING - In 10 years on China's highest court, Xuan Dong had a hand in the executions of 1,000 people - most carried out by a bullet to the back of the head, often within weeks of the verdict.

Sitting on the Supreme People's Court, he represented the condemned's last hope. But secretly, he loathed rubber-stamping the ruling Communist Party's death sentences against people who he thought rarely deserved such a fate.

In 2000, Xuan walked away from the bench to battle for human rights. Now, as China reevaluates its hard-line policies on capital punishment, the defense lawyer has called for public trials, more media exposure, protections for lawyers, and less party interference with the judiciary.

"The party should not give instructions" to judges, he said.Recently, Chinese rights advocates such as Xuan, 59, have seen progress within a legal system that each year is estimated to execute more people than all other countries combined. Legislation enacted last year requires the high court to review all death sentences, a step that had been dropped two decades ago.

Facing pressure before the 2008 Olympics in Beijing, China reportedly has scaled back the pace of executions. Although the government considers the number a state secret, China executed 1,051 people in 2006, accounting for two-thirds of the 1,591 put to death worldwide that year, according to statistics from Amnesty International, often based on media reports.

But some activists believe the actual number of executions could be as high as 15,000 a year.

The high court reviewed only a small portion of capital cases in recent years. Lower courts had operated virtually without oversight since Deng Xiaoping gave them the power to impose capital punishment amid a corruption and crime wave in the 1980s.

Acquittals are rare and appeals are made in the same court, heard by ill-trained provincial judges little inclined to contradict themselves, according to studies by criminal justice experts.

The studies paint a bleak picture: China's courts have no juries; police have unchecked powers, and forensics rarely are used in reaching verdicts.

Sixty-eight offenses - including nonviolent crimes such as tax evasion, drug smuggling and pornography distribution - carry the death penalty.

Although officials are considering reducing the number of crimes punishable by execution, they say crimes such as corruption, bribery and national-security violations still may lead to death sentences.

The legal reforms, advocated by a growing lobby of Chinese lawyers and scholars, are part of a policy officials call "kill fewer, kill carefully."

It calls for improved trial and review processes and requires that all death penalty appeals be heard in open court.

Experts are divided over how much substance the reforms carry.

"For China, it's an exciting breakthrough," said Jerome A. Cohen, a New York University law professor and adjunct senior fellow for Asia Studies at the Council on Foreign Relations. "Death penalty reforms will lead the way for improved procedures for other major criminal cases."Others say the Chinese legal system still lacks transparency.

"So you have the return of an important piece of review," said Sharon Hom, director of the New York-based group Human Rights in China. "But you're reviewing a system that is still politicized, that still does not welcome independent judges and where lawyers raising questions about abuse or torture are being harassed and beaten up."

In some cases, the government has been embarrassed when the death penalty was carried out in error. One man was executed for killing his wife, but she later turned up alive. Officials acknowledge that their "kill-fewer" campaign was prompted in part by such errors.

Experts hope China's judicial reforms will provide lawyers with strategies such as evidence gathering and courtroom arguments - rights they lack, according to a study by the Max Planck Institute for Foreign and International Criminal Law, based in Freiburg, Germany.

"There's a new dialogue," said Roger Hood, a United Nations consultant and retired professor at the Oxford University Center for Criminology. "My Chinese colleagues used to be defensive. Now they seek to understand how other countries have abolished the death penalty."

For his part, former judge Xuan hopes that one day Communist Party officials will not require judges to blindly follow party doctrine.

"I saw so many people die, I no longer had any emotion."