Significant changes have taken place since 2007 in China's criminal law in order to limit the application of the death penalty. In this concisely written book, Dr. Trevaskes provides a careful and critical examination of the legal and policy changes in China toward a more lenient penal regime and the political context in which those changes take place. Legal rules on the use of the death penalty in China are vague, and judges have a broad “interpretative space” in making individual death penalty decisions. How do Chinese judges respond to the political imperative to “kill many” and the legal imperative to “kill fewer”? Through her meticulous presentation of hard cases and detailed discussion of issues relating to different aspects of the death penalty in China, Trevaskes offers her insights on how judicial practices on the death penalty are shaped by, and, more significantly, shape political considerations.
Trevaskes is cautiously optimistic about the future of China's death penalty. She reminds readers from time to time that the death penalty is a highly political issue and the Party will continue to use the death penalty as an effective tool for social and political control. But she also argues forcefully that state-imposed execution in China is likely to diminish in the near future for three reasons.
First, political elites have realized the limited value of the death penalty in crime control and the political risk that the death penalty may carry. Trevaskes demonstrates clearly the keen awareness among decision-makers of the failure of the traditional crime control model based on harsh and quick punishment and the need to seek an alternative model based on community-building and crime prevention. Trevaskes also points out the political risk that the wide use of the death penalty may cause. Given the widely perceived unfairness and abuses in the criminal justice system due to the use of torture and forced confessions, as demonstrated in a series of high-profile wrongful conviction cases in China, the credibility of the entire criminal justice system is at risk. The death penalty, instead of serving as an effective form of social and crime control, may have become a liability exacerbating the legitimacy crisis facing the criminal justice system. Those pressing instrumental and legitimacy concerns, coupled with the political and economic changes in Chinese society, have ultimately forced political elites to rethink the value of the death penalty.
Second, in the right political circumstance, professionalism greatly matters. As pointed out by Trevaskes, the Supreme People's Court (SPC), under the able leadership of Mr. Xiao Yang (chief justice between 1998 and 2008), played a crucial role in enhancing and expanding the death penalty review procedure, including centralizing the final review in the SPC and nurturing a prudential culture among judges in making death penalty decisions. In spite of resistance on the part of local political forces, political and legal reform in China in the past three decades has witnessed the emergence of a reform-minded legal complex composed of national legislators, senior judges, and liberal-minded academics, who tactically have maneuvered the political and legal institutions in achieving a “killing fewer” policy goal. The pivot point of China's death penalty reform is the centralization of the final decision power in the SPC and a hard review that SPC judges have been performing over death penalty cases. Xiao Yang laid a solid groundwork for limiting the death penalty in China, thus creating a degree of civility and quality control in the judicial process. But whether the system that Xiao has created is sustainable in large part depends on the effectiveness and legitimacy of the SPC review. In the long run, Trevaskes offers some hope that a professionalized judiciary in China will be legitimate enough, independent enough, and strong enough to insulate the judicial process from political considerations.
This brings the readers to the third factor in limiting the death penalty—public opinion. While it is often said that Chinese courts are highly vulnerable to public opinion, Trevaskes also shows that public opinion in China concerning the death penalty is more nuanced and divided depending on the perceived justice in relation to individual cases. While the public appeared bloodthirsty and instrumental in demanding the execution of Yao Jiaxin and Li Changkui, the public also showed the face of rationality and humanity in the case of Dong Wei and many other cases of actual or perceived wrongful conviction. There, the public joined hands with reformers in demanding greater caution and fewer executions. In any event, Chinese citizens are less pro-death than commonly perceived to be the case.
The courts are also designing mechanisms to capture public opinion. One particular mechanism to soften the anger of the public and reduce the desperation of family members of murder victims is to make sure that defendants in murder cases make proper compensation to victims’ families. It is often the case that the view of the victims’ families is the pivot point of public opinion for imposing the death penalty and the courts decide to execute largely in response to the strong demand of the victims’ families and their supporters. Timely and adequate compensation by the defendants, while highly controversial and hotly debated, removes a powerful pressure from the courts and allows judges more independence in deliberating capital cases.
The take-away from Trevaskes's book is that, in relation to the death penalty, Chinese politics may fluctuate and public opinions at different times are volatile. But the courts, with the support of a progressive legal community, are building capacity and legitimacy and moving steadily toward limiting the use of the death penalty in China. Trevaskes has written a very informative book, and anyone who is interested in China's death penalty debate should read it.
