As Execution Reports Decline, Law Expert Challenges "Secret" Status

In 2010 Dui Hua recorded 700 Chinese executions in a systematic review of open-source materials for the year ended September 30. This year the same research methodology showed a 35 percent decline in reported executions. Neither figure comes close to the actual number of executions in China, which is a closely guarded state secret.

Does this mean that China has curbed its use of the death penalty?

Not necessarily. Amnesty International estimates that China put “thousands” to death in 2010, and there is little reason to expect a change of more than 10 percent from Dui Hua’s 2009 estimate of about 5,000 executions, a number that the government has neither confirmed nor denied. (A source in China’s judiciary recently advised a Dui Hua staff member that the number of executions had in fact decreased in 2011. The source, who is believed to have access to the actual number of executions, declined to give a percentage for the decrease.)

A public sentencing in Chengdu in 2010. Some were sentenced to death.
Photo credit: Beijing Morning Post

Given this and strict media controls in China, the 452 executions recorded during the past year serve as a minimum number for comparison and a bleak reminder of how little is known about the death penalty in China.

Open Secret

Chinese media reported fewer executions over the past year but published no shortage of articles on the death penalty itself. Controversies surrounding several notorious cases and the decision to reduce the number of capital offenses contributed to an ongoing public discussion about the death penalty and its place in the criminal justice system.

Capital punishment is rather unique among controversial criminal justice issues in that it has garnered relatively wide-ranging and sustained public debate involving a diversity of viewpoints. One subject that has been raised periodically is whether China is justified in its policy of refusing the public’s right to know how many people it puts to death.

Although the Chinese public is often described as favoring capital punishment, they don’t necessarily favor the secrecy that surrounds it. According to a general survey of Chinese attitudes towards the death penalty conducted in 2007 and 2008, 64 percent of respondents thought the government ought to reveal execution numbers.

After much debate, Li Changkui was sentenced to death by the
intermediate court. Photo credit: Yunnan Intermediate People's Court

Writing in support of this view in a commentary recently published by Guangzhou’s Southern Metropolis Daily, Peking University law professor Zhang Qianfan rejects the government’s legal basis for classifying execution statistics as state secrets. Noting heated debate sparked this year by the capital cases of Yao Jiaxin and Li Changkui, Zhang argues that the public cannot speak rationally about abolition, or other topics, with little access to anything but sensational reports. Zhang calls for increased transparency in the number and nature of China’s death sentences.

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Death Penalty Numbers Are Not “State Secrets”

Zhang Qianfan, Southern Metropolis Daily

September 9, 2011

Recently, the Yao Jiaxin and Li Changkui cases have generated heated debate over abolition of the death penalty and put the ongoing reform of death penalty sentencing in a difficult position. Actually, both cases involve extremely heinous circumstances that gave rise to considerable public anger. So in terms of a general discussion of whether to abolish capital punishment, they are not representative, and thus not sufficient to stop the general reform of the death penalty.

With these two extreme cases as a backdrop, people have at most been discussing the question of “whether extremely heinous murderers should be spared the death penalty.” But each year there are only a handful of cases like these that become the subject of widespread public attention—what about other death sentences? Even people who support the death penalty for Yao Jiaxin and Li Changkui won’t necessarily oppose sparing the lives of offenders [if] the circumstances of their crimes are not as horrifying, and not to mention, of course, those who have been wrongly convicted. This raises the question: just how many death sentences do we have every year? What kinds of cases are they? When the criminal law currently requires the death penalty with immediate execution for so many cases, can the public accept a decision to forego immediate execution? Without knowing so many of these basic facts, any so-called “discussion” about abolition of the death penalty can be little more than an emotional reaction.

But not only do we not open death penalty sentencing to the public—even the number of death sentences is a closely guarded secret. Everywhere the number and nature of executions are spoken about only vaguely, even to the point that the number of death sentences is called a “state secret.” What is the so-called “state secret”? To answer this, I purposefully read the Law on the Protection of State Secrets that was just amended last year, in which Article 9 sets the following condition for protecting secrets: “Any matter concerning state security or interests that, if leaked, might damage the security or interests of the state in areas such as politics, economics, defense, or foreign relations shall be classified as a state secret.” What sorts of things, specifically? Poring over the six items [enumerated under Article 9], the only things I found of any relevance were Item 1, “secret matters of major policies related to national affairs,” and Item 6, “secret matters related to activities for the protection of state security and the investigation of criminal offenses.” But can such a small thing as the number of death sentences amount to “major policies related to national affairs”? Can revealing this number, the result of proper court adjudication, be a “secret matter related to the protection of state security and the investigation of criminal offenses”? Even if these two [provisions] are themselves more than a little “flexible,” to use them to determine that the number of death sentences amounts to a “state secret” is clearly a “stretch” of the imagination.

Of course, no Chinese law would be complete without a “pocket clause.” Besides the six items mentioned above, there is a last item: “other secret matters that have been classified by the state secrets administration agency.” This “state secrets administration agency” must mean the State Bureau for the Protection of Secrets and not any other central offices or local agencies for the protection of secrets. For the time being, let’s not say whether the State Bureau for the Protection of Secrets has officially classified the number of death sentences as a “state secret”; even if it had it would not be etched in stone and beyond question. Clearly no office or individual can unilaterally say what constitutes a “state secret”; it must meet legal conditions, the least of which is the precondition in Article 9 of the Law on the Protection of State Secrets: [namely, that] “if [the matter is] leaked, [it] might damage the security or interests of the state in areas such as politics, economics, defense, or foreign relations.” Can “leaking” the number of death sentences really damage the political, economic, or diplomatic “security or interests” of China? Will it give others a way to attack our “human rights situation”? This kind of “pretext” might, in certain people’s eyes, “damage China’s image,” but, in fact, as far as China’s “security and interests” are concerned, there is no harm and many benefits. When you come right down to it, human rights are our own, our lives are our own. If making the number of executions public can provide a factual basis upon which to have a rational discussion about the abolition of capital punishment and reduce the number of unnecessary death sentences, the Chinese people themselves should be happy—what’s the point in worrying about what others think or say?

Although the Regulations on Disclosure of Government Information have been in force for nearly five years and the Law on the Protection of State Secrets has narrowed the scope of “state secrets,” there has been no fundamental change in the reality that “state secrets are everywhere you look.” Officials at all levels can easily put a “state secrets” stamp on any information they are unwilling to make public, causing the public discussion of serious issues to lose basic, factual foundations. The number of death sentences and executions is a classic example. Even though judicial information is not necessarily subject to information disclosure regulations, it is information that the public has a right to know since it does not qualify as a “state secret” under the Law on the Protection of State Secrets, and no agency has the right to refuse to reveal this number. Only when the number of executions is made public can China’s rational debate on abolition of the death penalty begin.

The author is a professor of constitutional law at Peking University.

Increased Use of Bail a Double-Edged Sword

China’s detention centers are bursting at the seams. Overuse of pre-trial detention is a big part of the problem, and researchers have been seeking new ways to reduce unnecessary confinement. Now, following on the heels of a major study conducted by the Supreme People’s Procuratorate (SPP), a proposed amendment to the Criminal Procedure Law (CPL) raises the use of bail* as a means to reduce excessive detention—but the cost may be stronger public surveillance.

Status Quo

Originally built to hold 160 detainees, the Fei County Detention Center in Shandong Province held 348 criminal suspects and defendants in April 2011. Such overcrowding, however, is neither an isolated occurrence nor necessarily symptomatic of high rates of serious crime. In this largely rural county of just under one million, more than 65 percent of detainees are likely to be given suspended or otherwise non-custodial sentences (indicating relatively minor offenses), while in many places, around 60 percent of criminal-court verdicts result in light sentences of three years’ imprisonment or less, including non-custodial punishments.

Despite this, SPP data for the last 10 years indicate that, on average, arrest is approved for more than 85 percent of criminal suspects, and the vast majority remain behind bars through trial.

Police reading conditions of bail to a detainee in Guiyang. Photo credit: www.gog.com.cn

There are complex reasons behind China’s tendency to detain suspects for the entire pre-trial period. First, as Hunan National People’s Congress (NPC) Deputy Qin Xiyan has noted, China’s criminal investigators tend to use incarceration as a substitute for investigation, a practice that both derives from and reinforces the emphasis given to obtaining confessions. Such reliance on incarceration and confession not only promotes torture, but hinders the development of better investigatory methods and limits the development of a more professionalized investigatory force.

Second, police performance is partially measured by the rate at which arrests are approved, meaning, as explained by Dan Wei, a researcher at the SPP’s Institute for Procuratorial Theory, that there is a tendency to seek arrest solely on the basis of whether there is evidence of a crime and ignore other legally mandated criteria like the prospect of a fixed-term sentence and the necessity of arrest. Even though the CPL gives suspects, their family members, and their legal representatives the right to request pre-trial release on bail or into residential surveillance, these requests are handled by the same institutions that make the initial decisions to arrest, without independent review, and are not subject to appeal. (Rough, anecdotal data suggest that about 15-20 percent of suspects were released on bail in 2010 and that the figure will increase by only a few percentage points in 2011.)

Finally, sensational and politicized notions of crime-fighting and stability put pressure on authorities to keep criminal suspects in custody, even when alleged offenses are relatively minor. Thus the fear of a public outcry or the possibility of escape or additional offense, no matter how unlikely, promote the overuse of pre-trial detention and ultimately drain scarce resources that could be used to improve social services or, often cited for poor sanitation and torture, detention centers.

Pilots, Prospects …

Given current abuse of pre-trial detention, there is reason to be cautiously optimistic about a new provision that has been added to the draft CPL revision announced by the NPC in late August. The provision would explicitly empower the procuratorate to review the necessity of continued detention of individuals who have been formally arrested and to recommend release via other measures when the criteria for further incarceration are no longer met.

This provision stems from a three-year study conducted by the Supreme People’s Procuratorate that explored ways of reducing high rates of pre-trial detention. Led by SPP researcher Dan Wei, the investigation involved visits to more than 200 detention centers, interviews with more than 5,000 criminal suspects, and a pilot study involving detention centers in 20 locales nationwide. In a March interview with Legal Daily, Dan noted that procuratorates already have the authority to monitor detention centers but that this authority has rarely been accompanied by specific mechanisms that enable implementation sufficient to safeguard detainee rights. He thus developed an 11-point scheme as part of the study to help procuratorate officers normally resident in detention centers evaluate the necessity of continuing to hold arrested suspects.

The pilot project appears to have yielded some positive results. In the abovementioned Fei County, 183 detainees were evaluated between October 2009 and April 2011.The procuratorate found that 46 of these individuals met the requirements for release, and, of these, the public security organ released 37. During the same period, 433 detainees were evaluated in 10 detention centers in the city of Yichang, Hubei Province. All of the 35 individuals found to be unnecessarily detained were released, with no negative impact on the legal process reported in any of the cases.

… and Politics

These results are promising, if somewhat limited. Given that these measures do nothing to lower high rates of arrest, reducing reliance on pre-trial detention means expanding use of non-custodial measures, including bail and “residential surveillance,” that may have negative consequences, especially in political cases.

Bail has generally been granted infrequently for political prisoners, though there has been an increase in its use over the past year. A case in point is the release on bail of Ai Weiwei in June, following 81 days of secret detention in a case ostensibly about tax evasion. Several others detained this year for alleged offenses connected with the so-called Jasmine Revolution were also later released on bail—many on the condition that they not speak publicly about their detentions.

Left: Beijing legal lecturer and activist Xu Zhiyong was arrested for "tax evasion" on July 29, 2009. He received bail on August 23, 2009. Nearly one year later, on August 21, 2010, the charge against him was dropped. Photo credit: Beijing lawyer Peng Jian

Right: Artist and activist Ai Weiwei was arrested for "tax evasion" on April 3, 2011. On June 22, 2011, it was announced that Ai had been released on bail. The investigation is still pending. Photo credit: Reuters

Professor Jerome Cohen of the US-Asia Law Institute at New York University has noted the way in which release on bail has frequently been used as a “face-saving” measure whereby detainees in sensitive cases may be released without authorities having to acknowledge wrongdoing or lack of evidence. In many of these recent cases, bail also appears to be a way of using legal means to wrap up detentions that were intended as punishment or intimidation, rather than as part of an investigation intended for further prosecution.

Similarly, rights activists, lawyers, and the media have raised serious concerns about provisions in the draft CPL revision for another non-custodial measure—residential surveillance. As with bail, expansion of the use of residential surveillance could significantly help to decrease the rate of pre-trial detention in China. But the proposal would also authorize placing an individual suspected of endangering state security (ESS), terrorist activity, or serious cases of bribery under “residence surveillance” in a designated location other than the suspect’s residence without requiring that a family member be notified, if it were felt that notification had the potential to impede investigation. If enacted, this would effectively legitimize the kind of long-term, enforced disappearance that has been increasingly used against dissidents and activists—most notably Nobel laureate Liu Xiaobo—who are often charged with ESS crimes like inciting subversion.

In other words, expanding the use of non-custodial measures is potentially double-edged. Procuratorial oversight is welcome as a means to reduce excessive rates of detention and better protect suspects’ legal rights. But suspects’ rights must also be protected outside of detention centers. Further guarantees are necessary to ensure that the expansion of bail and residential surveillance does not facilitate the intimidation and punishment of critical voices through legal formalities lacking proper legal process.

Note: *When discussing the Chinese system, “bail” refers to 取保候审 (qubao houshen), which we translate as “obtaining a guarantee pending further investigation or trial.” The Criminal Procedure Law allows for the imposition of this procedure at any stage of a criminal investigation or prosecution. Professor Jerome Cohen of the US-Asia Law Institute explains that, pursuant to qubao houshen, investigations can go on for up to one year, during which suspects are generally restricted to their city of residence.

State Security Indictments Remain at Historic Highs

Criminal justice statistics published in the 2011 China Law Yearbook (中国法律年鉴) offer more evidence of the heavy security crackdown that has been underway in China since 2008.

According to included Supreme People’s Court data, Chinese courts tried approximately 670 cases involving “endangering state security” (ESS) charges in trials of the first instance in 2010, down only slightly from the previous year’s high of nearly 698. (As in previous years, court statistics published in the yearbook combine the number of ESS trials with trials for “dereliction of duty by military personnel” in a category simply labeled “other.” Based on consideration of additional data, however, Dui Hua can say with a high degree of confidence that 99 percent of trials covered in this “other” category are ESS cases.)

During the decade from 1998—the first full year after ESS crimes were included in the criminal code—through 2007, courts averaged only 289, or 132 percent fewer, ESS trials per year.

Concluded Endangering State Security Trials, 1998‒2010

Note: Limited to trials of first instance. Source: China Law Yearbooks, Dui Hua

Chinese authorities use ESS crimes in their effort to suppress political dissent in the name of protecting national security. Provincial statistics and Dui Hua’s database of political prisoners indicate that subversion, “splittism,” and incitement are the chief offenses for which individuals are charged with ESS.

Meanwhile, statistics from the Supreme People’s Procuratorate (SPP) continue to show that authorities arrested and prosecuted individuals on ESS charges at historically high levels, with 1,045 arrests approved for ESS in 2010, and 1,223 individuals indicted. Both figures slightly exceed estimates Dui Hua produced earlier this year using incomplete data that the SPP included in its report to the National People’s Congress.

Individuals Indicted for Endangering State Security, 1998‒2010

Note: Limited to trials of first instance. Source: China Law Yearbooks, Dui Hua

Trends in yearbook data clearly show that endangering state security has become a major focus of China’s law enforcement system since 2008, a period that has seen a marked emphasis on stability due to the Beijing Olympics; high-profile commemorations such as the 60th anniversary of the founding of the People’s Republic of China; and increased levels of ethnic unrest, exemplified in part by the violence that broke out in Lhasa in 2008 and Urumchi in 2009.

In January 2011, the president of the Xinjiang Uyghur Autonomous Region (Xinjiang) High People’s Court announced that courts there concluded 376 trials for ESS offenses in 2010. If this figure is limited to first-instance trials, Xinjiang would account for more than half of all ESS trials reported in China for that year. While the scope of this data remains unclear, other evidence indicates that the majority of ESS trials are brought against ethnic minorities, many of whom with roots in Xinjiang and Tibet.

For example, of the 36 ESS cases recorded in Dui Hua’s prisoner database for 2010, only three involve Han Chinese. Though stark, this data point also clearly demonstrates the scarcity of reliable information available on ESS cases.

While providing information on the number of trials, the 2011 yearbook does not include the number of individuals convicted of endangering state security. SPP data show that, on average, ESS cases involve more individuals than criminal cases taken as a whole—the overall ratio of individuals per criminal indictment has remained consistent at around 1.5 since 1998 versus roughly 2.5 individuals per ESS indictment during the same period and nearly 3.0 individuals per ESS indictment between 2008 and 2010, but there is too much variation in the data to produce meaningful estimates of the number of people convicted.

Although the exact number of ESS convictions remains a mystery, it seems evident that heightened state security concerns are here to stay. China’s recent white paper on peaceful development included the political system as one of its “core interests,” a measure that reinforces the close identity between Communist Party rule and Chinese national security. Given that popular uprisings have toppled authoritarian rulers in Tunisia, Egypt, and Libya, and the heightened anxiety surrounding the leadership transition expected during China’s 18th Party Congress in 2012, there is little to suggest any imminent political reform of the decades-old policy of ensuring “stability above all else.”