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 penalty 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 effects of these two waves of reform, it is necessary to consider their effect on the entire human rights process. This paper will show that, if the reforms are considered in this light, it is 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 be 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 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.