Translation & Commentary: “Can Having a Lawyer Present for Interrogations Eliminate Torture?”

In its “National Human Rights Action Plan” for 2009–2010, China asserted its commitment to eliminate torture in its criminal justice system, something UN Special Rapporteur on Torture Manfred Nowak had described as “widespread” in an interview with Dui Hua following his visit to the country in 2005.

Over the past year, China took a significant step forward in the direction of combating torture by issuing two sets of detailed rules governing the exclusion in criminal trials of evidence obtained through illegal methods. While these rules provide further proof of China’s commitment to protecting the rights of criminal suspects, observers have pointed out that thorough implementation and further steps are needed before this commitment can be turned into action.

Ensuring a suspect’s right to legal counsel at all stages of the criminal investigation process is one such further step that experts cite. So, it was welcome news to see last week that prosecutors in Beijing have launched a pilot program to allow certain criminal suspects to request a lawyer’s presence during questioning carried out by investigators. The move marks another small sign of progress along China’s path towards procedural justice.

However, as legal commentator Xu Mingxuan notes in a Beijing News opinion column (translated below), the narrow application of these new measures in Beijing makes it unlikely that they will have much of a direct impact on preventing torture. For one, the rules only apply to suspects not being held in custody, a small group in a country where bail is not widely used.

Moreover, it is the initial stage of police investigation (rather than the secondary stage of investigation by prosecutors), where the danger of torture is perhaps greatest. And this danger is not limited to the interrogation room, since most criminal suspects are detained in police-run detention centers, where they appear to be most vulnerable to torture.

As Xu rightly points out, it is the “confession-centric” mentality in China’s criminal justice system that needs to change. Only then are we likely to see measures designed to protect suspects’ procedural rights truly take hold.

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Can Having a Lawyer Present for Interrogations Eliminate Torture?

Xu Mingxuan

Beijing News

December 7, 2010

     Recently, the Beijing Municipality Procuratorate Second Division issued [a set of] “(Provisional) Rules for Lawyers to be Present During Interrogations.” According to reports, criminal suspects in cases in which the suspect is not being held in custody may request the presence of a lawyer at the time of interrogation. This is understood to be the first such initiative by a Beijing procuratorate, one that will gradually be expanded to include cases involving offenses by juveniles, foreigners, and individuals from Hong Kong, Macau, and Taiwan.

     Even if you’re still unfamiliar with the phrase “lawyers being present during interrogations,” surely everyone must be familiar with lines like “I have nothing to say without an attorney present” from European and American movies. This is the “right to have a lawyer present,” one of a criminal suspect’s procedural rights. The right to a lawyer’s defense and presence is, in essence, an extension of citizens’ private rights, a [way of] monitoring public authority and an effective way to prevent extraction of confessions through torture and miscarriages of justice.

     For various historical reasons, the Criminal Procedure Law that China established 14 years ago has no provision for the right to have a lawyer present. On the contrary, there is actually a provision for a “right to have law enforcement organs present.” ([According to Article 96,] “When a lawyer meets with a criminal suspect in custody, the investigation organ may, in light of the seriousness of the crime and when it is deemed necessary, send personnel to be present at the meeting.”) Many miscarriages of justice have been caused by the absence of various procedural rights in [China’s] criminal procedure system. If he had had a lawyer present, would She Xianglin [link] have been tortured and beaten until he confessed? Or take the case of Xiao Chuanguo’s hiring of thugs to attack Fang Zhouzi [link]. The facts in this case were quite clear, with a clear distinction between right and wrong. But foreign media reports deliberately emphasized that Xiao Chuanguo had made his confession of guilt without having a lawyer present. This shows that having a lawyer present during interrogations by law enforcement bodies is something that all countries recognize as a part of rule of law. Without such a system in place, no matter whether substantive justice is achieved one will be unable to avoid criticisms about procedural injustice.

     In fact, even though China’s criminal procedure legislation is relatively lagging, it doesn’t mean that nothing can be done in law enforcement practice. Several years ago, the Procedural Law Research Institution at China University of Political Science and Law received funding from the United Nations to launch a pilot program at the Haidian Branch of the Beijing Public Security Bureau in which police in selected cases were required to notify a lawyer to appear during initial questioning of a suspect. This pilot program had a positive social impact. The Beijing Municipality Procuratorate Second Division’s current launch of a system for lawyers to be present during interrogations is [an example] of China’s gradual, one-step-at-a-time progress in rule of law.

     The real reason that it has been so difficult to realize the right to have a lawyer present is the question of whether the investigating organs (public security bureaus or procuratorates) dare to accept monitoring by lawyers and shine a light on the way that cases are handled. Only by establishing the right to have a lawyer present can we abandon the longstanding “confession-centrism” of China’s law enforcement system. Shifting investigators’ focus to physical evidence and other technical evidence will destroy the institutional space in which coerced confessions and the use of violence to extract confessions can exist.

     Though this pilot effort by the Beijing Municipality Procuratorate Second Division is worthy of praise, one should recognize that the limited scope of this program means that the impact of lawyers being able to sit in on interrogations is not great. The pilot project only covers the phase in which procuratorates are carrying out their investigation [in preparation for] indictment, and lawyers cannot sit in on interrogations of suspects carried out by the police. There remains a considerable distance from standard international practice. As far as application is concerned, [the rules] are only to be used for suspects who are not being held in custody. In law-enforcement practice, most cases in which suspects are not being held in custody involve those with a good attitude toward acknowledging guilt, those facing relatively light charges, or cases involving little disagreement [over the charges]. Even if lawyers [are allowed to] sit in on interrogations [in such cases], it would be extremely difficult for lawyers to play their role in protecting human rights and eliminating confessions extracted by torture or inducement.

Translation & Commentary: More Than A Decade After “Hooliganism” is Abolished, One Hooligan’s Re-incarceration Sparks Debate

On December 1, the Legal Evening News published a profile of the prisoner Niu Yuqiang under the title For a Hat, He Becomes China’s Last “Hooligan.” The paper reports that Niu, a Beijing native, was arrested in 1983 for stealing a cap and engaging in a brawl, convicted of hooliganism, and sentenced to death with two-year reprieve. The sentence was eventually commuted to a fixed term of 18 years, and Niu was sent to prison in the Xinjiang Uyghur Autonomous Region—a destination roughly analogous to Siberia in Soviet Russia—to serve his sentence.  After six years in the Xinjiang desert, Niu developed tuberculosis and was returned to Beijing on medical parole for treatment. 

Niu quickly recovered enough to return to prison, but owing to a bureaucratic miscommunication, he was not taken into custody. So, for the next 14 years, Niu continued to reside in Beijing and dutifully fulfilled the terms of his parole, checking in with his probation officer every month and refraining from seeking employment. In 1997, the Criminal Law was revised, and the charge of hooliganism was abolished. Nonetheless, in 2004 the slow wheels of bureaucracy turned once again, and the Xinjiang authorities came to re-incarcerate their absentee charge.  At the time, Niu was informed that his sentence would expire in 2008, but after he was returned to custody, authorities declined to credit him the time served on medical parole and modified his sentence expiration date to 2020, which would reportedly make him China’s last remaining hooligan.

Since it was first published in the Legal Evening News, Niu’s plight has been spotlighted in the Yangcheng Evening Post and other papers. The Global Times, an English-language paper under the People’s Daily, has since run a story claiming that Niu received several sentence reductions that were not reported in the original Chinese coverage. An editorial  by Yu Ge (translated by Dui Hua below) appeared on the opinion page of the Xinkuai newspaper on December 4. It gives a succinct overview of the case and touches on many of the talking points that grip discussion of the criminal justice system in contemporary China.

Instances of perverted justice in China that have lately drawn the loudest public outcry typically involve official abuses of power—such as the case of Deng Yujiao, a 21-year-old hotel waitress who stabbed a Party member to death as he allegedly tried to sexually assault her—or laughable government prevarications—like the recent claim by the Public Security Bureau in Maoming, Guangdong Province that a prisoner died of suffocation under his quilt (“death by quilt” is only the latest addition to a macabre catalogue of “unnatural deaths” in detention).

Niu’s case is noteworthy in that the official account involves neither charges of corruption nor cover-up. The issues at hand are actually quite dry: bureaucratic miscommunication and procedural questions about the law. In his editorial, however, Yu Ge can’t resist trying to portray Niu as a foil to Lin Jiaxiang, a licentious official who made headlines after a video was released in which he attempted to molest an 11-year-old girl in a restaurant and then, when challenged by the girl’s parents, admitted to the charges and attempted to bribe and threaten the family. 

Many commentators worry that the focus on individual cases—and the Internet mob justice that often accompanies it—has a deleterious effect on efforts to promote rule of law in China. It is heartening to see, then, that Yu Ge’s editorial weighs seriously the importance of legal procedure and makes an appeal for Niu’s release that is grounded in jurisprudence. Yu’s argument is two-fold: First, because Niu reported to his parole officer during his medical parole, he was in fact fulfilling the legal obligations of his sentence and should not be penalized for the ineptitudes of prison officials. Second, although hooliganism is a criminal charge, it is rooted in a moral authoritarianism and incompatible with modern rule of law. To make the point, Yu references two notorious cases in which individuals were charged for hooliganism for dancing and watching banned movies.

While Yu emphasizes moral authoritarianism, he glosses over the degree to which the charge of hooliganism has traditionally also been a catch-all used to silence political dissent.  Dui Hua has records of dozens of prisoners who were charged with hooliganism in connection with June Fourth, many for their involvement with labor disputes in the spring of 1989. The longest-serving June Fourth hooligan on record, Liu Zhihua, was released only last year. 

Like hooliganism, the other charge most often applied to June Fourth dissidents—counterrevolution—was also replaced during revision of the Criminal Law in 1997. However, a new crime—endangering state security—that covered most of the offenses previously considered to be counterrevolutionary was legislated at the same time. So while the excesses of the strike hard campaigns have unquestionably given way to a more just legal system in China, laws that stifle dissent remain very much an acute problem. Or, as Yu Ge comments in his closing, “Under the long arm of the law, the Niu Yuqiangs of the world have merely put on a new face, a new criminal name.”

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The Abolished Crime of Hooliganism and the Liberation of the Hooligan

Yu Ge

Xinkuai

December 4, 2010

        Today, the crime of “hooliganism” and its associated cases seem like black humor from the dimly-lit past. Who knows how many unlucky bastards have been reduced to tragicomedy [by it]. This joke, cooked up by a government authority both imperious and hypocritical, has yet to come to an end. The latest protagonist in this drama is a man from Beijing named Niu Yuqiang, who in his youth became entangled with the crime of hooliganism, from which he has suffered a string of misfortunes. Even years after the crime of hooliganism has been abolished, he is still paying the price for that absurd period in history.

　

Internet discussion

Waste of prison resources

Netizen: Hooliganism is no longer a crime. What educational use can there be in jailing this so-called “hooligan” Niu Yuqiang?  How does this prevent crime? It merely wastes prison resources and deprives one more person of his liberty.

How can one have faith in a law without mercy?

Netizen: We should not forget Aquinas’s dictum: the reason people have faith in the law lies not in its severity and impressiveness, but in its mercy. Shouldn’t the mercy of the law shine on Niu Yuqiang? Regardless, to have individuals serving heavy sentences for a crime that has long since been eliminated leads to doubt about the principle of statutorily prescribed punishment for specific crimes [a core concept of civil law systems].

Analysis

When hooliganism encountered “strike hard”

      Niu Yuqiang’s sad history has two key terms, like indelible scarlet letters: hooliganism and “strike hard.” First, for the second term: Born at the wrong time, Niu Yuqiang came up against the 1983 “strike hard” [campaign]. According to the criminal verdict of the Beijing Intermediate Court, one day in May (the exact day was not written, showing the degree of omission) Niu Yuqiang and some friends stole a passerby’s hat in Beijing. Niu Yuqiang and his buddies also got into a fight with another group, injuring the other party, though the verdict provides no medical verification of this. Based on the facts of these two crimes, Niu Yuqiang was convicted of hooliganism and sentenced to death with two-year reprieve.

　　

      Heavy sentence aside, everyone knows that during the “strike hard” period, so-called statutory punishments were just cheap window-dressing. Times of chaos call for harsh punishment, and penalties have a way of snowballing: better to kill a thousand innocents than to spare one guilty man. This causes one to puzzle about the crime: how do Niu Yuqiang’s actions relate to hooliganism? Seen from the perspective of contemporary law, even if you twist the law and treat it as an assault, it would be more in accord with legal logic.

        Returning to the crime of hooliganism: According to the research of the eminent scholar Zhu Dake, “hooligan” [literally, “wandering commoner” in Chinese] originally referred to people who had lost their physical or spiritual home. Its connotations gradually narrowed over time until it finally came to take on a morally negative [overtone], [as] those rejected by the home state, and became a criminal charge and entered the law. In 1979, New China’s first Criminal Law was born, with Article 160 specifying the crime of hooliganism: “Where an assembled crowd engages in brawls, creates disturbances, humiliates women or engages in other hooligan activities that undermine public order, if the circumstances are flagrant, the offenders shall be sentenced to fixed-term imprisonment of not more than seven years, criminal detention or public surveillance.”

        From reading the law you can clearly see why Niu Yuqiang was charged with hooliganism: He stole a hat, which falls under the category of creating a disturbance, and engaged in a gang fight, which falls under the category of brawling.

        At that time, hooliganism was an ill-defined, catch-all crime. It didn’t matter whether it was carrots and cabbage or rotten melons and messy dates, everything fit [into it]. Looking at cases from the time, one finds a guy who was convicted of hooliganism for drinking too much and taking a leak on the side of the road and a kid deemed a hooligan after a friend dared him to kiss a girl on the lips.

        There were two well-known hooligans at that time: one was a woman from Xi’an named Ma Yanqin who was considered to be a loose woman because she loved to dance and the other was the “cheek-to-cheek dancing, banned-movie-watching” singer, Chi Zhiqiang. The crimes of these two, judged today, would not only not be criminal, but wouldn’t even merit a moral dressing down by the average person on the street. These things are no longer considered out of the ordinary. Judged by the standard used for Chi Zhiqiang, then those like Edison Chen [the Hong Kong pop star who made sex tapes with many celebrities] should be executed ten times over.

　　

        At that time Chi Zhiqiang received four years in prison, and that was because he was shown mercy; Ma Yanqin was sentenced to death.

　　

        If “strike hard” was political authoritarianism, then hooliganism was moral authoritarianism. The two poisons ran together, scorching the earth. Mao Yanqin’s wronged ghost and Chi Zhiqiang’s lost freedom are heaped on the graves of the innocent.

　　

China’s last “hooligan”

        Niu Yuqiang’s sorrows need not be repeated. He was lucky in that he was not sentenced to death and immediately executed but was granted a two-year reprieve, thereby saving his life. At the end of 1984, Niu Yuqiang, not yet 20, was sent to Xinjiang’s Shihezi Prison to serve his sentence. After this, his suspended death sentence was converted to a life sentence, this was again reduced to a fixed-term sentence of 18 years, and then he was released on medical parole. Niu Yuqiang’s fate gradually became more tranquil.

　　

        Bizarrely, in November 1990 Niu Yuqiang was sent to Beijing for medical treatment because he was suffering from tuberculosis. The next summer, the Xinjiang prison sent a team of inspectors, who assessed [Niu’s] condition and decided that his [medical] parole should continue for another year. However, for several years afterward, the prison never bothered about him again.

        In 1997, Niu Yuqiang got married and started a family. As it happened, that same year the Criminal Law was revised and the crime of hooliganism that had been haunting him was finally eliminated. One might say [Niu] was doubly blessed.

        But in the summer of 2004, fate took a turn for the worse and Niu Yuqiang was forced to return to prison for a second time. It turns out that during his medical parole period the prison had sent multiple letters and contacted Beijing police requesting that [Niu] return to prison. They even posted two warrants for Niu Yuqiang’s arrest online, classifying him as a fugitive. After his arrest, the police said that Niu Yuqiang’s original sentence would expire in April 2008. Soon after, they changed their tune: since Niu Yuqiang had not returned from medical parole in a timely fashion, they determined that his prison term would be extended from his original release date of April 28, 2008, to April 28, 2020.

        Now, Niu Yuqiang is still serving his prison sentence for the crime of hooliganism 13 years after that crime had been abolished. He can thus be called China’s last “hooligan.”

        From this disputes arise: Should Niu Yuqiang serve his sentence, and what crime is he serving a sentence for?

        First, according to Article 12 of the Criminal Law, any judgment that was made and became effective before [the 1997] law took effect shall remain valid according to the laws in force at the time. So, even though to a contemporary viewer hooliganism is like the binding of women’s feet, something long since cast into the dustbin of history, bad law is still law and the absurd verdict against Niu Yuqiang remains valid. Hooliganism is a political relic, and Niu Yuqiang and the law have intertwined fates, dogmatic and cruel [as that may be].

        Second, how was Niu Yuqiang’s sentence calculated? I believe this is actually the crux [of the issue]. Here it should also be said that when we say that bad law is still law, we are referring to the form of the rule of law, not its substance.  We must be at our most conservative in our attitude of defending the form of the rule of law, but we must be at our most radical in daring to pursue its substance.

        As I see it, the 14 years that Niu Yuqiang was on medical parole from 1990 to 2004 should be factored into his sentence.  This is because, for one thing, although Niu Yuqiang does bear responsibility for not returning to finish his sentence, the responsibility borne by the police is even greater. For another thing, during the period of his medical parole, he carried the obligations of his crime: such as going with his father to the police station at the beginning of every month to report his thoughts and activities. By law, a criminal may not engage in activities other than medical treatment while on medical parole, so he did not go out and seek employment. If this is the case, I agree with the original police assessment that Niu Yuqiang’s sentence expired in April 2008.

        After May 2008, every day that Niu Yuqiang is imprisoned is another mark of shame for Chinese law, and for each of these days government authority must foot the bill for a new crime. We look forward to Niu Yuqiang’s early return to freedom and also the compensation he can seek from the State Compensation Law for the freedom he lost.

　　

Hooliganism abolished, hooligans freed

        In 1997, the crime of hooliganism was eliminated, and distributed among the crimes of engaging in a crowd brawl (Article 292) and causing a serious disturbance (Article 293). But although hooliganism was abolished, the philosophy of criminal law is unable to set aside the lens of morality. Criminalizing morality, like criminalizing speech, has not ended. Under the long arm of the law, the Niu Yuqiangs of the world have merely put on a new face, a new criminal name. Those being wronged are still being wronged, and those who act with impunity still do so. The latter is represented in Lin Jiaxiang [A senior government official who was caught on tape after allegedly attempting to molest an 11-year-old girl in 2008].

        So, it is premature to declare that Niu Yuqiang is China’s last hooligan. Hooliganism is not like the mythical dragon, slain once, but like the hydra which will not be killed. When one punishment dies, another grows in its place.

Translation & Commentary: "To Refuse Compensation is to Turn a Blind Eye to Torture"

When it comes to human rights in China, one can point to many provisions in the constitution, laws, and regulations designed to protect all sorts of individual rights. Problems often arise, however, when these provisions are inconsistently enforced or, in some cases, willfully ignored.

There is perhaps no clearer illustration of this than the case of Li Jiyi. Arrested in 2002 on suspicion of theft, Li died in custody after being tortured by four police officers in Qiongzhong County, Hainan. Li’s family spent years trying to get some accountability for this police abuse, but were faced with repeated obstacles by a local public security bureau unwilling to investigate itself. The officers involved were eventually sent to prison and in the end a court awarded Li’s family with state compensation. But faced with the court’s compensation order, the public security bureau refused to pay, arguing that to do so would weaken police morale and initiative.

China frequently reiterates its commitment to combat torture. “Coercion of confessions” is prohibited under Chinese criminal law, and new rules were recently issued governing the exclusion as evidence statements extracted under torture. But despite these prohibitions, torture remains an endemic problem in a criminal justice system that places a heavy emphasis on confession of guilt and features few real credible institutions to oversee a powerful police force.

To Xu Mingxuan, who frequently comments on legal issues in the Chinese media, what happened to Li Jiyi is bad enough, but what his family subsequently endured is simply inexcusable. In an opinion published in the November 17 edition of the Beijing News, Xu points out that privileging police morale and power over justice for victims of police brutality is incompatible with any reasonable conception of rule of law. He asks rhetorically how police can be so audacious and ignorant of such common-sense ideas. Perhaps one need only look to the emphasis given to “stability above all else” for an answer. 

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To Refuse Compensation is to Turn a Blind Eye to Torture

Xu Mingxuan

Beijing News

November 17, 2010

     In a country with rule of law, such defiance of the law by local law-enforcement agents is hard to imagine. Over the past eight years, police in Hainan’s Qiongzhong Li and Miao Ethnicity Autonomous County first tortured a man to death, then resisted investigating the case, and finally refused to honor a court’s 580,000-yuan state compensation judgment on the grounds that it would “hurt police initiative.”

     According to a report on the People’s Daily website, Li Jiyi was taken into custody in 2002 for theft and was later tortured to death. His family members sought answers from police, but the Qiongzhong County Public Security Bureau did not put the case on file [for investigation]. After two years of petitioning and lodging complaints, in 2004 the procuratorate performed an autopsy and police filed a case, but the next year the county public security bureau again said that it could not proceed with the case. After two more years, in 2008, four defendants were found guilty of coercing confessions and given sentences of up to 13 years. In 2009, Li’s family sought state compensation from the county public security bureau, but the bureau gave no response. Family members again filed an administrative lawsuit, and in a final ruling this past June the public security bureau was ordered to pay more than 580,000 yuan in compensation to family members of the deceased.

     I have tried to relate as succinctly as possible the story of how Li’s family spent the past eight years petitioning and defending their rights, yet it still takes up considerable column space. But the difficulty involved in describing their story briefly is nothing compared to their unimaginable pain, suffering, and anger. Yet at each step of the way, local police slammed the door on justice, passed up every opportunity to regain public trust, and never showed an ounce of shame.

     On another level, though, local police showed real “compassion” in the reasoning they gave for refusing to pay compensation to [the family of] the deceased. According to the State Compensation Law, the public security bureau would have to recover any compensation paid from the four who carried out the torture. But they were already paying a heavy price for the “lack of caution” that led to Li Jiyi’s death, and to make them come up with large sums in compensation as well would seriously dampen the initiative of public security officers! This explanation is ridiculous in the extreme—do they mean to protect the “initiative” to coerce confessions?

     The court’s two binding judgments on coercion of confessions and state compensations could not be any clearer. Coercion of confessions is contempt for a suspect’s procedural rights and right to life. Refusing to investigate is contempt for the state’s law-enforcement authority and the procuratorate’s oversight authority. Failure to implement a court’s binding judgment is contempt for the court.

     State compensation is a mechanism of self-correction for state organs and a way to make amends to victims. It is mandated by state law, so whether the public security bureau wants to pay compensation is not an issue. Moreover, as enforcers of the law [the police] are obliged in principle to set an example in carrying out a binding judicial decision—otherwise, doesn’t this put them in the same league as other “deadbeats”?

     Refusal to compensate the victim’s family on the grounds that it would damage “police initiative” is the same as approving and turning a blind eye to torture. It seems that after eight years of being the target of rights defense activity, these local police still don’t have even the slightest basic understanding of rule of law—torture is illegal and those who enforce the law have no special extralegal authority. Eight years on, there is no reason why the local police should not possess this basic understanding of the law. So, where could the motivation and audacity to refuse to compensate the victim of torture possibly come from?

Related link:

• Dui Hua Translation: China's New Rules on Evidence in Criminal Trials

Taking a Stand in the Name of Rule of Law

The Chinese government’s response to petitioners has been much in the news this past week, thanks in large part to the efforts of the country’s more outspoken investigative journalists.

Earlier this week, the Beijing News earned the ire of local officials in Fuping County, Shaanxi, after it reported on the case of two women who had been forced by police to stand before an audience of hundreds, arms shackled, as a warning to others about engaging in “illegal petitioning.” Legal experts denounced the action as a violation of legal provisions against public shaming of prisoners or suspects—especially given the fact that the women had merely been given light administrative punishments.

For their part, officials in Fuping publicly insisted that their handling of the situation had been legal and proper. “It increases transparency of law enforcement,” they claimed. “The goal is to educate [the women] themselves and to educate the public.” In support of their actions, they point to a 2009 directive from the Central Politics and Law Committee authorizing use of “serious measures” against persistent petitioners or those who act unlawfully.

Meanwhile, from Hunan, there emerged an account in the Southern Metropolis Daily of a farming couple subjected to “preemptive punishment” for “preparing to petition.” Tang Fengyin had sued the local government in Yongzhou over the illegal requisition of his land, but despite a local court finding in his favor, government agents continued to infringe on his property rights. So, Tang and his wife traveled to Guangzhou to meet with a lawyer and seek out a sympathetic reporter to whom they could recount their plight. But police from Yongzhou tracked them down, dragged them back to Hunan, and gave Tang a 10-day administrative detention for “preparing to petition.”

Like the Fuping case, the treatment of the Tangs has generated a lot of outrage from Chinese commentators. Today, in the Beijing News, Wei Yingjie writes:

Petitioning is no crime, much less “preparing to petition”! By giving the Tangs an administrative punishment before they had gone to petition, local police can be said to have “preemptively violated the law.” Even if the Tangs subjectively had the intent to petition, they had not yet in fact taken action, so for local police to slap them with this is a classic case of trumped-up charges.

Even more alarming is the ruling mentality behind the “preemptive punishment” of citizens. Petitioning is both a lawful administrative channel for seeking redress and also an effective means of defusing tensions in society. Some local governments go to so much trouble to block and intercept petitioners because, first, they are afraid their dirty laundry will be displayed in public and, second, they have been warped by their ruling mentality. By this I mean that some local governments and officials, out of self-interest, often have a tendency to see citizens as potential “enemies.” This is the most frightening and worrying part about this “detention of citizens for preparing to petition” incident.

When local government agencies and officials in possession of unquestionably strong public power see citizens as being opposed to their interests, the consequences are obvious. It’s not limited to petitioners normally exercising their “right to petition”—any ordinary person can be reduced to a “prisoner” of those holding public power at any time. Therefore, this is not merely an ordinary case involving administrative punishment but a serious violation of the law, one that tramples on legal institutions and infringes on citizens’ legal rights.

Perhaps not coincidentally, these reports of local abuses of power against petitioners come in the same week that China’s State Council released a new “opinion” on the importance of rule of law, calling for fairer administration of justice and government accountability in order to reduce the level of social grievance.

Perhaps more than anything, the cases described above illustrate the dilemma facing local officials in China. On the one hand, they are being constantly reminded of the paramount importance of social stability and pressured to take serious measures to preserve it. On the other hand, they are being exhorted to pay increased attention to rule of law.

Until the balance of these messages begins to tip more unambiguously in the direction of rule of law—and institutions are developed to place real checks on abuse of power—it is doubtful that either the grievances or the outrageous responses to them will disappear anytime soon.

Related links:

• Op-Ed: "A Savage Lesson in Eroding Stability on the Mainland"
• Translation: "Following Mistaken Beating of Official's Wife, Let's Look at Reform of the Petitioning System"

Injuring the Injured: The Case of Zhao Lianhai

Shouts and wails erupted outside a suburban Beijing courtroom this morning as 38-year-old Zhao Lianhai was sentenced to 2-1/2 years’ imprisonment on charges of “causing a serious disturbance.”

After the court’s verdict was announced, Zhao angrily tore off his detainee uniform and resisted police efforts to drag him away. He announced his intention to appeal the verdict and indicated he would protest by starting an immediate hunger strike. Outside the courtroom, tearful family members and angry supporters shouted “Zhao Lianhai is innocent!” and “The court is shameless!”

Prosecutors charged Zhao with “using controversial social issues to gather and incite others to shout slogans in public places and illegally gather to stir up trouble.” The main “controversial social issues” in question was a major food-safety scandal that first came to light in 2008 in which the industrial chemical melamine was found to have been added to Chinese milk products, causing at least six deaths and serious kidney damage for hundreds of thousands of children.

As the father of a child who had developed kidney stones as a result of drinking tainted milk, Zhao led other parents in a quest to seek better compensation and treatment for victims and their families. They rejected a highly publicized compensation plan put forth by the government and attempted (unsuccessfully) to file a class-action suit against more than 20 companies involved in the scandal.

Zhao set up a website to build public support and collect information about the poisonings, suggesting that the victim count could be much higher than official figures. He gave interviews to foreign media and became involved in other cases involving people seeking justice for grievances.

The crime of “causing a serious disturbance,” which was added to the Criminal Law in 1997, was originally known as “hooliganism.” Literally the crime of “picking quarrels and provoking trouble,” Article 293 provides for a maximum five-year sentence for a variety of offenses,  leading some to refer to it in Chinese as a “pocket crime”—anything can be stuffed into it.

In April, shortly after the initial hearing, Hong Kong-based media personality Leung Man-tao used Zhao’s trial as inspiration for a passionate defense of citizens’ rights in a commentary entitled “Rights Defense and Maintaining Stability,” published in the weekly Guangzhou newspaper Southern Weekend. He started by describing the scene outside the courtroom:

They said the court arranged to hold the trial in one of the smaller courtrooms that couldn’t seat many people, so the guy’s wife and kid couldn’t get in to attend. When the trial was over, he was convicted as expected and then immediately bundled into the prisoner transport vehicle by police. At that moment, his wife picked up the child and chased after [the vehicle] in the rain, crying and shouting, until her way was blocked by row after row of guards. She watched as the husband she hadn’t seen in months was driven off in the distance, while her son kept repeating, “Papa! Papa!” They said the reporters on the scene couldn’t look at the woman, and some even couldn’t bear it and were brought to tears.

What crime did this man commit? The prosecution charged him with “creating a serious disturbance,” saying that he maliciously stirred up trouble online over an incident and “incited a gathering” of people to go to a public place and “seriously disrupt social order by shouting slogans and carrying out an illegal demonstration.” What was the big deal that led this guy to “maliciously stir up trouble” to the point where it landed him behind bars? It was all because of a child; his young child drank some bad milk formula and developed kidney stones, so he hardened his heart and summoned all his strength, both visible and invisible, and fought to the end to defend his rights.

After criticizing the authorities for treating rights defenders as a threat to social stability, Leung concludes his essay thusly:

If you misuse the framework of stability protection to deal with rights defense activity, that shows you haven’t heard at all what the other party has been saying. They haven’t come to look for trouble, and even less to rebel. On the contrary, what they want is to be seen, to be heard, and to be recognized. If they were really enemies, why would they demand your recognition? Responding harshly to rights defense in the name of “preserving stability” is to give a negative response to a positive demand.

Think about it: the vast majority of rights defenders are already victims. Even if they occasionally say and do things that are a bit extreme, can’t we sympathize with their feelings? It makes sense that any citizen whose rights have been infringed should obtain compensation, not be looked upon as not being a citizen. But in reality, we find time and again that those who have suffered injury often get injured again.

Related links:

• "China food safety activist gets 2-1/2 years," Associated Press, November 10, 2010
• "维权与维稳" [Rights Defense and Maintaining Stability], 《南方周末》 [Southern Weekend], April 8, 2010 (in Chinese)
• "Father of poisoned baby rallies parents in poisoned milk fight," Toronto Star, January 17, 2009

Dui Hua’s Observations from Universal Periodic Review of US Human Rights Record

On November 5, 2010, the United States underwent its first Universal Periodic Review at the United Nations in Geneva. Dui Hua Program Officer Tobias Smith attended the review, and wrote this dispatch following the event:

Even for those who doubt the United States’ commitment to the United Nations Human Rights Council, it’s difficult to dismiss the American government’s preparation for the first Universal Periodic Review (UPR) of the US human rights record. In anticipation of the National Report submitted to the Office of the High Commissioner in August, the US government consulted with over 1,000 civil society participants at eleven locations throughout the country. For the UPR itself, the government dispatched more than 30 US delegates, including three assistant secretaries of state, representatives from the Department of Justice, the Department of Homeland Security, and the Department of the Interior, and state and local agents.

While the high-profile representation was a welcome indicator of this administration’s willingness to engage in international human rights dialogue, it was also a natural response to the array of interests that lined up (literally) to be heard at the UPR. Countries sign up for two-minute slots to voice recommendations, and the queue to join the list can be competitive. Cuba, Venezuela, Iran, Nicaragua, and others reportedly worked together to make sure they were at the head of the pack. This strategy led Germany’s representative to quip that he hoped “those states will apply the same commitment to their own human rights at home [as they did to getting on the list].”  Despite the push to be heard first, these countries’ recommendations were for the most part moderate, and they overlapped heavily with comments voiced by many of the 56 countries that spoke.

The most often raised recommendations included: encouraging the United States to ratify international treaties such as the Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination Against Women; ending racial profiling and racial disparities; closing the detention facility in Guantánamo Bay; creating a human rights commission in line with the Paris Principles; and placing a moratorium on the death penalty. The call for a moratorium was particularly pervasive, and was raised by 20 countries, virtually all of them Western democracies.

At intervals throughout the UPR session, the US delegation had opportunities to respond. Assistant Secretary of State for Democracy, Human Rights and Labor Michael Posner took on the question of why the United States has not ratified many commitments, saying that while some countries ratify treaties before complying, “The US follows a different path. We attempt to comply before ratifying.” He said that the Obama administration is committed to ratifying the Convention on Elimination of All Forms of Discrimination against Women, and that there is a vigorous domestic debate on creating a human rights commission in accordance with the Paris Principles, but he did not provide a time frame for either. Harold Koh, the State Department’s Legal Advisor, took on the question of the closure of Guantánamo Bay. He said that President Obama has expressed his desire to do so but that he faces legal hurdles as members of Congress have opposed the transfer of many of these prisoners to other facilities. Koh also tersely addressed the possibility of a moratorium on the death penalty, stating that while “this is a subject of vigorous debate and litigation in the United States…Many Americans who are personally opposed to the death penalty, including myself, nonetheless recognize that the death penalty is nowhere prohibited by international law.”

Although the United States did not comment at China’s Universal Periodic Review in February of 2009, China did offer comments to the United States. China’s representative noted some progress in health care and education, but also pointed out with concern gaps in protections in human rights, including excessive use of force by law enforcement, discrimination against Muslims and African-Americans, and inhumane detention of immigrants. The Chinese representative recommended that the United States ratify core treaties, end excessive use of force by law enforcement, close the prison at Guantánamo Bay, and bring the United States in line with the International Convention on the Elimination of All Forms of Racial Discrimination.

The US UPR concluded in the morning. In the afternoon, the US delegation hosted a town hall-style forum for NGO representatives. This was a savvy move, as NGOs attended the event in record numbers, with many holding side events throughout the week leading up to the review. In fact, NGO presence was so strong that access to the UPR itself was limited to two representatives per NGO. Notably, the concerns raised at the forum differed from those brought up by countries during the UPR. The death penalty, for instance, was not mentioned once, and international treaties received less attention. Questions were specific and wide-ranging, though the topic of repatriation of indigenous peoples’ lands probably received the most discussion.

On Tuesday, November 9, the Human Rights Council will adopt the summary on the UPR, and the US government will have until March of 2010 to formally respond. Overall, the United States appeared to make a good faith effort to engage in this UPR—and hopefully this will translate into a commitment to address many of the legitimate concerns raised during the process.

Translation & Commentary: "Greater Steps Can be Taken to Reduce the Death Penalty"

Last week, it was announced that China’s National People’s Congress Standing Committee was reviewing a major revision to the country’s Criminal Law, one that would potentially eliminate use of the death penalty for 13 non-violent criminal offenses.

This revision, if carried through, would at least partly address one long-standing critique of China’s use of capital punishment: the relatively large number of crimes for which the death penalty can be imposed. Under the current law, 68 crimes are eligible for the death penalty—a significant number of which are non-violent in nature. Other areas of concern, such as the huge number of executions carried out each year and the lack of transparency in the way that capital cases are decided, will remain unchanged.

Though international pressure has played a role in motivating death-penalty reform, much more credit has to go to the small but vocal group of legal scholars, activists, and officials who over many years have been pushing for changes to China’s system of capital punishment. Many of these reformist voices have been heard again this week, rightfully welcoming the legislative proposal as a small, but important, step towards bringing China’s practice more in line with international norms—if not outright abolition of capital punishment, at least strict limits on its use.

One such legal scholar is Tsinghua University professor Zhou Guangquan, who recently was interviewed by the Guangzhou weekly newspaper Southern Weekend (Dui Hua translation below). Zhou notes that many had hoped to see more substantial cuts in the number of crimes eligible for the death penalty, but that the 13 crimes selected for revision had been chosen because there had been few, if any, cases in recent years in which the death penalty had been applied. By taking a more gradual approach, Zhou suggests, China can avoid too much criticism from the public, which remains highly supportive of capital punishment.

Zhou notes that legislative reform shouldn’t always simply follow the lead of popular opinion, but in the end, legislators cannot simply ignore the public. But changing public opinion is much more difficult than changing the law—especially when it reflects long-held cultural views about justice. Important steps need to be taken in that direction—for example, by continuing to challenge the conventional wisdom about the deterrent effect of capital punishment. A much more radical step would be to increase transparency. The Chinese public might develop a different view of capital punishment if they knew more about how many people are being executed each year and for what.

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Greater Steps Can be Taken to Reduce the Death Penalty

(Interview with Zhou Guangquan, member of the Legal Committee of the National People’s Congress and Tsinghua University professor)

Southern Weekend
August 26, 2010

First Eliminate a Few, Then Check the Level of Society’s Tolerance

Southern Weekend (SW): Among the 68 capital crimes in China, the death penalty is seldom or never used in nearly half. What is your understanding of the legislative body’s thinking regarding the present [proposal to] revise the Criminal Law and eliminate 13 of them?

Zhou Guangquan (ZGQ): This revision has very positive significance for future development of criminal legislation in China and clarifies the fundamental value orientation of China’s Criminal Law. First, when adding new crimes [in the future], we won’t automatically add the death penalty. At the same time, this is to a certain degree a response to foreign concerns about the issue of capital punishment in China.
    The departments responsible for drafting the law carried out much research beforehand. They did some partial calculations and found that nearly 50 percent of countries worldwide have completely abolished capital punishment, five percent only have death penalty provisions for military crimes or war crimes, and 20 percent of countries, though having provisions for capital punishment, have not carried out executions in the past decade and have, in essence, abolished the death penalty. In a nutshell, only a minority of countries retain the death penalty and an extremely small minority actually carry out executions. For instance, the United States in 2006 only executed just over 50 people, and in Japan fewer than 10 are executed each year. In those countries that both retain and use the death penalty, individuals who are put to death are mostly criminals with blood on their hands. In other words, it is basic practice among countries retaining the death penalty to use it primarily against murder.
    The 13 crimes for which we’re eliminating the death penalty are mainly ones that, when looking at the 1997 Criminal Law, [the death penalty] had never been used or has been used only rarely. The Supreme People’s Court (SPC) and Supreme People’s Procuratorate provided some data, and there were some [crimes for which the death penalty] had never been used and some for which the rate of use was so low as to be basically negligible.

SW: We’ve heard that the SPC had recommended that the death penalty also be eliminated for the crime of transporting drugs but that this was not accepted. What other crimes were under discussion by the legislative organ but ultimately not included in the group of crimes for which the death penalty would be eliminated?

ZGQ: To be sure, there were some other crimes discussed that ultimately did not make the cut. With respect to eliminating the death penalty for trafficking and transporting drugs, scholars mainly took into consideration that many people who sell drugs are being used [by others] and that they are often from the lowest segment of society and get involved in order to earn a bit of money. According to court statistics, the harm of trafficking and transporting drugs is small, relatively speaking, and not as great as the harm [caused by] manufacturing and smuggling drugs. The legislative body probably considered that drug offenses are still relatively rampant in China and that it would be difficult to keep [the occurrence] down if the death penalty were eliminated.
    Everyone also recommended that the death penalty be removed from the crimes of fund-raising fraud and organizing prostitution. However, looking from the perspective of the legislative organ, it is still necessary to estimate just how great the criminal harm is and whether these crimes might be more widespread in future. Legislators also intend this [revision] as an experiment: first you eliminate a few [capital crimes] and then check the level of society’s tolerance. Some scholars actually believe we could take a bigger step and eliminate all at once more than 30 capital crimes that are seldom if ever used.

Rising Social Conflict is Social Background to Heavier Punishments

SW: Back in 1988, the National People’s Congress (NPC) suggested reducing capital punishment because, in comparison with other countries’ criminal laws, China’s made more use of the death penalty. Why is this proposal for legislative reform only been carried out now?

ZGQ: I have always thought that there has been a particularly great pressure to increase [use of] the death penalty facing criminal legislation over the past 30 years. This has been an unavoidable problem in legislating. Especially when adding new crimes, many people expect to see as many crimes as possible carry the death penalty. For example, two years ago some people advocated the death penalty for the crime of holding a huge amount of property from unidentified sources. This leads to [a situation in which] our criminal legislation is basically about “addition.” Especially in the period from the mid-1980s to the early 1990s, there was a definite gradual increase in [the inclusion of] the death penalty when enacting individual criminal laws and the overall level of punishments grew heavier. There are complex reasons for this, but especially during a transitional period with increasing social conflict and growing violent crime, the use of punitive measures seems to have fit with our habitual ways of thinking. Two years ago, the minimum sentence for kidnapping was reduced from 10 years to five years, and society was able to accept it. In my view, this was a turning point that showed that criminal legislation was not only about heavy punishments or a way of thinking that [focused on] “addition” and not “subtraction.”

Legislative Choices Cannot be Entirely According to Public Sentiment

SW: What were the considerations of legislators and experts regarding [the proposal to] stop using the death penalty for elderly people aged 75 years or older?

ZGQ: According to data provided by the courts, nationwide there are only a few cases each year involving people 70 years or older who commit serious crimes eligible for the death penalty—it’s in the single digits.
    The policy behind criminal legislation is the same as the policy for social insurance in China: we need to solve the problem of the elderly and children, because these two groups of people are rather special. The elderly are less capable when it comes to judgment and control, and they have slower responses. The Criminal Law must maintain a necessary lenience in response to the errors they commit, even those that are very serious. Moreover, we can imagine that a person in their 70s who commits a serious crime definitely does so for reasons that we can forgive, and in practice judges just can’t hand down [heavy punishments]. In Russia, the Criminal Law requires special treatment for offenders 65 years and over. A few countries even legislate that those over 70 cannot be punished, no matter what their offense. From ancient times, China has had lenient provisions for the elderly. The 1935 Criminal Law of the Republic of China prohibited the death penalty for offenders [above] the age of 80. The 1979 Criminal Law was established to bring order out of chaos, and there were too many considerations that needed to be focused on, so the problem of the elderly couldn’t be addressed.
    The current revision, in some sense, is a return to the legal tradition of forgiving the offenses of the elderly.

SW: Some members of the public have a hard time accepting reduction of the death penalty, including banning the use of the death penalty for people 75 years or older.

ZGQ: This is normal. There will always be a gap between popular thinking [lit., “intuition”] and the judgment of legislators when it comes to capital punishment—this is true throughout the world. In some European countries where the death penalty has been abolished, opinion polls show that nearly 80 percent of people oppose abolition. Legislative choices cannot entirely follow popular thinking; in the end, some decisions must be made that go against popular thinking.
    Why might popular thinking on the subject of capital punishment be unreliable? Because people generally proceed on the basis of personal experience or individual cases they know about, grossly exaggerating the harm in any particular case and prejudging that anyone definitely ought to get the death penalty. Legislators have to make considerations about universal implementation, taking normal harm into account rather than proceeding on the basis of particular cases or exaggerated cases. Many people believe that the crime of theft should carry the death penalty, because blithely stealing property worth tens or even hundreds of thousands creates great harm. This is exaggerating an individual case. Legislation shouldn’t be for extraordinary cases but, rather, should be done based on ordinary circumstances.

Death Penalty for Corruption and Bribery is Political Issue

SW: In recent years, very few people have actually been sentenced to death for corruption or bribery; most are given suspended death sentences. Many scholars advocated following standard international practice and abolishing the death penalty for corrupt officials, but there was no breakthrough on this issue in the current revision. When it comes to revision of the law related to capital punishment, [surely] China’s legislators must be taking popular thinking into account.

ZGQ: Capital punishment for corruption and bribery is not merely an issue of the Criminal Law; it’s also a policy issue and even a political issue. So, it’s a difficult subject and a focus of public opinion, and it’s necessary to proceed carefully. On this issue, perhaps legislators really considered or, one could say, respected public views.
    Compared to ordinary economic crimes, the crimes of corruption and bribery involve greater harm because, besides involving infringement of property, they also cause damage to the [sense of] honesty and fairness of public servants in carrying out their duties, shake public trust in state employees, and even shake the base of political power. When you add to that [the fact that] corruption and bribery [cases] can easily involve hundreds of millions [of yuan], without the threat of the death penalty it would be very hard for the public to accept [abolition] in light of China’s present circumstances like this. In fact, use of the death penalty in corruption and bribery cases is controlled extremely tightly, so even if the death penalty is retained, it won’t result in abuse. Looking long-term, we can discuss whether or not to eliminate the death penalty for corruption and bribery. It’s not as if we’re saying that it will be retained forever simply because we didn’t abolish it this time.

Abolition of Death Penalty Must Proceed in Stages

SW: It’s said that, prior to this revision of the law, the NPC carried out a survey of public opinion. What were the results? What reference value to they have for elimination of capital crimes, both now and in the future?

ZGQ: The public remains quite sensitive about proposals to abolish the death penalty, but its level of tolerance for the issue of capital punishment is better than it was three or four years ago. So, the SPC’s [efforts to] control capital punishment created the conditions for this legislation to eliminate capital crimes.
    Abolition of the death penalty in China must proceed in stages. Most of the 13 crimes [for which the death penalty is being] removed occur infrequently, and their removal won’t cause a shock to public safety, endanger state security, or produce negative consequences. But crimes like endangering state security, endangering national defense interests, and dereliction of duty by military personnel are not currently under consideration. Next up for consideration might be non-violent crimes like dereliction of duty or corruption and bribery. The third step is [considering] certain crimes [in the categories] of endangering state security and endangering national defense interests. Of course, these crimes are rather unique and are connected to the basis of political power. Perhaps the death penalty will always be retained [for these crimes]. It’s hard to predict.

SW: Some people are always concerned that public safety will get worse if the death penalty is used less. How do you see the connection between capital punishment and public safety?

ZGQ: Do you think that murderers don’t understand the concept of “an eye for an eye”? I think that every official knows that the Criminal Law imposes the death penalty for extremely serious cases of corruption involving more than 100,000 [yuan], but every year there are still so many corrupt officials who defy the law. This shows that the deterrent effect of capital punishment is limited, because everyone thinks they’ll get lucky and won’t get caught. Criminals basically don’t choose whether or not to break the law based on whether or not the Criminal Law provides for the death penalty. Reducing crime primarily depends on reform in the methods of social control. Why is it possible to eliminate the death penalty for some economic crimes? It’s because even without relying on the death penalty, reforms and unified economic order are enough to prevent many crimes. The German criminologist Liszt once said: “The best social policy is the best criminal policy.” This saying is still applicable in today’s China.

Op-Ed: "Is Mercy Coming to China?"

The opinion piece below by Executive Director John Kamm was published in the August 16 edition of The Washington Post. Kamm points out that China has made strides in developing a more humane criminal justice system, particularly with changes that have curtailed use of capital punishment. Changes include new rules against using confessions obtained by torture, strict regulation of the market for transplanted organs, proposals to reduce the number of crimes that carry the death penalty, and a general prohibition on the shaming of criminal suspects.

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Is Mercy Coming to China?

John Kamm
Executive Director
The Dui Hua Foundation

In a surprising response to public protests, the Chinese government recently prohibited police from publicly shaming criminal suspects through such devices as parades, used most controversially for parades of prostitutes. This is the latest in a series of developments that portend a more humane justice system, most notably in the area of capital punishment.

Hearing the news last month, I was reminded of scenes I encountered while traveling through the countryside outside Guangzhou late in the summer of 1983. China's "Strike Hard" campaign was underway; it was the first of many efforts to address what Chinese leaders saw as an alarming growth in lawlessness—and dissent. In August 1983 the authority to execute people was transferred from the Supreme Court in Beijing to provincial officials. Thousands were executed by the next spring festival, six months on.

As I passed through a small town, a man and his two sons, each tilting forward from the weight of the large white boards strapped to their backs, were driven past, en route to an execution ground. The boards proclaimed their death sentences; the men's arms were tied behind them. I remember the elder screaming his innocence as a throng of feral youth rushed ahead to get in position to witness the shootings. Farther up the road I encountered another execution scene, this time in a sports stadium with a throng of enthusiastic onlookers.

China's active use of the death penalty has long sparked international discomfort, particularly as evidence has mounted that the threat of capital punishment does little to deter crime. The official position is that someday China will abolish the death penalty but that "conditions aren't right" to do so now. Yet as long ago as 1984, the Chinese government forbade the public parading of prisoners who were about to be executed. Such spectacles remained commonplace, however, especially in the countryside, prompting Beijing to issue regulations against public executions in 1986. Rumors of executions in sports stadiums plagued China's bid for the 2000 Olympics, and when bidding for the 2008 Games, Beijing made clear that public executions were not permitted.

Ten years ago, China was executing more than 10,000 prisoners a year. The human rights group I direct estimates the annual rate to be less than 5,000 now, a reduction due in part to President Hu Jintao's effort to develop a "harmonious society"—and in part to withering criticism at the United Nations and in the human rights dialogue with Europe. China still executes more people every year than the rest of the world combined. Today, executions generally take place in specialized chambers or vans, away from public view. Lethal injections, as opposed to gunshots, are increasingly used.

Last month, the day before the ban on publicly shaming criminal suspects was announced, news began circulating in Chinese media that the National People's Congress would consider amending the criminal code. Reforms were said to include reducing from 68 the number of crimes punishable by death, as well as the age at which convicted criminals can be executed. If such reforms are enacted, nonviolent crimes in China will, for the most part, be exempted from the death penalty.

The proposals are part of a movement aimed at reining in the indiscriminate use of the death penalty. In late July the Chinese Supreme Court tightened rules on introducing evidence obtained by torture, particularly in death penalty cases. It is not clear whether this will be effective in curbing the rampant torture used to obtain confessions in capital cases. The media have exposed a number of cases in which people were wrongfully convicted of capital crimes based on confessions obtained by torture, and a number of death sentences handed down in corruption trials are often said to be politically motivated.

While many have thought the death penalty is invoked to deter crime, there is another reason capital punishment reached such astonishing levels in China. For years organs were harvested from executed prisoners. An August 2009 Ministry of Health statement acknowledged that 65 percent of the 10,000 transplants in China involved organs from executed prisoners. Before China's Supreme Court reasserted its right of review over death sentences in 2007, it was not uncommon to find arrangements linking execution grounds to hospitals performing transplants, often for overseas clients. Now, transplantation of prisoners' organs is subject to strict regulations.

In many respects, China's human rights record falls far short of international standards. But important progress has been made in reducing capital punishment. When Hu took office as Communist Party chairman in 2002, the country was executing as many as 12,000 convicted criminals a year. The annual number of executions could be down to roughly 2,000 by the time Hu leaves office at the end of 2012. Opponents of the death penalty will argue, passionately and correctly, that that number is still a human rights violation of the most serious kind. But the sharp drop in executions is a positive step toward the government's goal of ensuring that only "the most vile and serious crimes" are punishable by death—and its stated goal of eventually abolishing the death penalty in China.