29 January 2013

Translation: Li Yan and Reconsidering the Death Penalty

The most recent death penalty case to capture the attention of the Chinese public is the case of Li Yan, a 41-year-old woman sentenced to death for killing her abusive husband. (For more on this case, see this article by Tania Branigan at The Guardian.)

Li's sentence has been approved by the Supreme People's Court, but last week, a group of lawyers, legal academics, and others called on the court to stay the execution. Time is running out, since an execution is required to be carried out within seven days of being approved by the SPC unless grounds for halting the execution are uncovered in the meantime. (See Amnesty International's urgent appeal on the case here.)

In this morning's edition of the Shanghai newspaper Oriental Morning Post (东方早报), lawyer Zhang Peihong argues that there are sufficient reasons to stay Li's execution and reconsider the punishment she's been given. He urges Chinese judges to take a new attitude towards imposing the death penalty, one that would consider every possible argument against imposing the death penalty rather than treating capital punishment as a tool for eliminating harm from society.

Zhang Peihong
Oriental Morning Post
29 January 2013

Until complete abolition of the death penalty, strict control over its use is the crucial issue—this means, in fact, finding every excuse and reason not to impose the death penalty.

The legal process has now come to an end in the case of Li Yan, the woman from Zizhong County, Sichuan, convicted of killing her husband. In recent days, the Supreme People’s Court approved the death sentence for Li Yan. According to the relevant procedures, Li Yan’s execution will be carried out within seven days, bringing an end to her tragic life.

The death sentence against Li Yan has prompted a huge debate among the public. On January 25, more than 100 scholars, lawyers, and members of society convened a seminar calling on the Supreme People’s Court to spare Li’s life.

There seem to be sufficient grounds for a stay of execution: After marrying her husband Tan Yong in 2010, Li Yan suffered serious domestic violence. At the time of the incident on November 3 of that year, a drunk Tan Yong had even tried shooting her in the rear end with an air gun. So, in a fit of rage, Li Yan used the gun barrel to beat her husband to death.

In this respect, the clear fault of the victim should have a corresponding effect on the sentence given to the defendant. Therefore, it is completely possible to sentence Li Yan with a suspended death sentence or life imprisonment. Moreover, after the incident Li Yan had someone telephone the police and waited at home for police to take her into custody. This meets the legal standard for voluntary surrender, which, in accordance with the law, may bring lenient or mitigated punishment.

However, the courts of first- and second instance sentenced her to death and the Supreme People’s Court approved the death sentence, maintaining that Li Yan’s crime had serious consequences and was committed in a brutal fashion. She not only killed her husband but also cut up the body and cooked it. Also, the court rejected the claims of domestic violence on the grounds of insufficient evidence and rejected that Li had voluntarily surrendered. In this way, a sentence of death with immediate execution becomes a choice based on a well-reasoned argument.

Any close look at this case must include reflecting upon and examining the death penalty as a punishment. Past death penalty cases have given us many controversial cases, ranging from the earlier cases of Du Peiwu in Yunnan, Liu Yong in Shenyang, She Xianglin in Hubei, Zhao Zuohai in Henan, and Nie Shubin in Hebei, to the more recent cases of Li Changkui in Yunnan, Yao Jiaxin in Shaanxi, Xia Junfeng in Shenyang, Wu Ying in Zhejiang, Wu Changlong in Fuqing, Nian Bin in Fuzhou, and then to the most recent exposure of the injustice done in a case in Xiaoshan, Zhejiang. These cases are not only controversial because of their substantive outcomes; they are also flawed procedurally. Some involve serious use of torture to extract confessions, others involved the interference of public opinion in the judicial process, others involved blatant miscarriages of justice, and others were simply controversies over whether the death penalty was the appropriate punishment.

Of these, the Liu Yong and Li Changkui cases are worth reflecting upon. Both of these cases went through the first- and second-instance trial process without imposition of death with immediate execution. But because of surging public opinion, the Supreme People’s Court directly retried Liu’s case and executed him that same day and the Yunnan Higher People’s Court initiated retrial proceedings that led to Li being re-sentenced to death with immediate execution.

These are two extremely terrible precedents, ones that not only undermine the courts’ formal independence but also, to a certain degree, damage the credibility of the judicial process. Worst of all, these two cases are examples of “light sentences made heavier.”

But in Li Yan’s case, the public outcry is different. First, before carrying out the execution the condemned has a final opportunity to make a petition. If Li Yan puts forth new evidence that can prove that the victim did actually commit serious domestic violence (ultimately, such evidence shouldn’t be hard to find), she may request a stay of execution. Second, the goal of the calls by the public and academic community is to make a “heavy sentence lighter.” This accords with the basic spirit of civilized administration of justice. (To put it more popularly, it is the “willingness to let a thousand go rather than kill one in error.”)

Of course, resolving the issue of the death penalty cannot rely only on individual cases. As long as the death penalty exists, there will be controversy. This is a result of the persistent problems of the death penalty itself.

First, there is no way to repair an [improper] death sentence. We all have only one life, and once someone is executed, there’s no way to fix that even if it is later discovered to be a huge miscarriage of justice. Because of the limits of people’s capacity for understanding, miscarriages of justice are not something that people can control. They are inevitable and cannot be completely prevented by any review procedure.

Second, there is no way to measure the death penalty. A death sentence is a death sentence. There’s no way to distinguish on the basis of circumstances or degree. If you take “an eye for an eye” to be a principle of the death penalty, then a killing necessitates a life be taken in return. But what if two are killed or even more? Wouldn’t this necessitate taking more lives? What about distinguishing between intentional and accidental homicides? What about distinguishing between robbery, kidnapping, drug trafficking, and weapons smuggling? Should we consider voluntary surrender and meritorious service or the faults of the victim? In fact, general consideration of these things is made in judicial practice, but this is precisely the issue in Li Yan’s case: Why is it still necessary to sentence her to death with immediate execution?
Moreover, the death penalty lacks a theoretical or ethical basis. Our current legal system, whether in terms of the texts or the institutions, comes from the west. The formation of the western legal system originates in deep religious traditions: life is a special, inalienable gift and if people cannot kill others then clearly the government cannot kill others. Therefore, abolition of the death penalty has become a legal principle in developed countries.

China lacks similar religious traditions, meaning that our road to abolishing the death penalty remains long and hard. When considering whether to apply the death penalty, judges must consider not only the details of the case itself but also give more weight to the emotions of the victims. In Western countries, there are even special organizations made up of victims’ family members that urge judges not to impose the death penalty on those murderers who harmed their relatives. The Pfrang case in Nanjing and the later case of the Canadian model in Shanghai are both examples of this. (Editor note: in April 2000, a German entrepreneur named Juergen Pfrang and his three family members were murdered in their Nanjing home by youths from Shuyang County, Jiangsu. Their friends established a foundation to aid children in the murderer‘s hometown.)

As long as the death penalty exists, there will be debate. Until complete abolition of the death penalty, strict control over its use is the crucial issue—this means, in fact, finding every excuse and reason not to impose the death penalty. This requires the judges who impose and review death sentences to maintain a “life-saving mentality” in ruling on cases, rather than adjudicating on the basis of a “harm-eliminating mentality.”

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