An analysis of the death penalty policies between the United States and China

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Introduction

The death penalty is a contentious issue in the modern world both domestically and internationally. Amnesty international (2016) estimates that there were nearly 1634 execution in 2015 in 25 nations.  This figure excludes the number of executions carried out in china because the Chinese government does not reveal the number of people who are sentenced to death. It’s a state secret. The United Nations and various non-governmental organizations are at the forefront of advocating for laws that ban the death penalty. The United Nations passed “a resolution calling for a global moratorium on the death penalty, with an eye towards abolition” (Death Penalty Information Center, 2017). This follows a series of other resolutions passed and adopted in 2007, 2008, 2010, 2012, and 2013. The resolutions urged the UN member states to abide and operate within or respect the rights of individuals or people facing he death penalty and to continually reduce offences that attract the death penalty. Former UN Secretary General also opined that the death penalty has no place in the 21st century (United Nations Human Rights, 2017). Thus, more and more nations or states are recognizing that the death penalty encroaches on an individual/people’s human rights, and the establishment of a moratorium or abolition of the death penalty enhances the construct of human rights. However, the United States voted against the resolution. Despite continued pressure by the UN to abolish the death penalty globally, China and the USA still implement the death penalty. Therefore, the paper will examine the death penalty policies in china and the USA, and subsequently draw a conclusion on whether the USA should adopt China’ s death penalty policies or continue with its own polices.

Death penalty in China

The death penalty law status in china is of a retentionist nature. It supports or promotes the death penalty. Huan Ermei (Head of the first criminal law court of the supreme people’s court) argued that the death penalty is an appropriate and relevant sentence that plays a key role in acting as a deterrent to crime in a nation that is witnessing an increase in crime. Thus, the death penalty in china has also a robust public support. According to human rights organizations, china executes more people than any other nation in the world.  However, the Chinese government guards the statistics on people executed and makes them inaccessible to the public. The Dui Hua Foundation ( a human rights group) stated that nearly 5000 to 6000 people facing the death penalty were executed in china in the year 2007 (Fan & Cha, 2008).  Futherr, Lu (2008) implied that Chinese executions and death sentences account or represent 60-80% of the total executions and death sentences in the world.

Methods of execution

China uses two methods to conduct the death penalty. Execution by a firing squad was a popular method in the past, but it has been mostly replaced by the use of lethal injection.

Criminal offences that attract capital punishment

China’s criminal law lists 68 criminal offenses that attract the death penalty. They range from economic offences, violent crimes, crimes related to corruption, public safety, to public order (Lu, 2008). The expansive nature of the list of crimes that leads to capital punishment makes china to have the highest number of offenses that attract the death penalty in the world. Some offences such as drug trafficking attract a mandatory death sentence/capital punishment.

Legal procedure

An appeals process in both the high people’s court and the supreme people’s court of the people’s republic of china (SPC) is launched after the intermediate people’s court hands over the death penalty to an individual. An appeal to the SPC is an automatic process since 2007 in order to prevent situations where the defendant is proved innocent after the sentence has been implemented/ administered (Trevaskes, 2008). Thus, a defendant’s case is reviewed by the SPC even though he/she failed to appeal to the high people’s court.

A three judge bench sits and reviews a case that is sent to the SPC. The judges are required by law as from 2012 to examine the defendant before making a decision of upholding the death penalty sentence or declining to uphold it. Therefore, they document their findings and decision and then inform or update the SPC vice president and the SPC president. Executions are administered soon after if the SPC upholds the ruling of the lower court.

Offenders who are below 18 years during the time of committing the crime and women who are pregnant during adjudication are exempted from being exposed or subjected to the death penalty (Lu, 2008).

The death penalty reforms since 2006

Reforms enacted since 2006 were based on the principal of “preventing excessive executions and to execute with caution” (Lu, 2008). After the reform, the SPC was mandated to examine and review all death penalty sentences/cases,  SPC to order lower courts to retry death penalty cases except in very few cases, SPC judges to interview or interrogate the convict, and evidence obtained through illegal means such as torture was excluded or declared irrelevant (Zhou, 2012).

Death penalty in the USA

The federal government and 31 states in the US embrace capital punishment. Europe has abolished the death penalty making the US to be the only western nation still having capital punishment as a legal penalty (Bienen, 2010). Amnesty International (2012) estimates the number of executions in the US to be around 1,200 people between 1973 and 2012.  140 people were released or exonerated from death row during the same period citing evidence of wrongful conviction. 7 out of the 31 states that retain the death penalty carried out executions in the US in 2014 while 26 nations have performed executions within the last decade. The remaining 7 states are abolitionists including the US military and the federal government. Death penalty on the federal level was not used between 1964 to 2000. However, it has been meted out once since 2003. The death penalty information center (2017-a) lists the total number of federal executions since 1927 to present at 37.

Method of execution

Executions in the United States are carried out by hanging, firing squad, electrocution, gas inhalation, and lethal injection. Lethal injection is the most popular or commonly used execution method.

The legal process

A defendant is subjected to five steps when facing a capital offence. The first step starts when the accuser decides to seek the death penalty. After the accuser seeks the death sentence, a jury is responsible in handing down a sentence. After the trial level, the case of the defendant moves to direct review is he/she is sentenced to death.  An appellate court conducts the direct review. It examines the evidence and facts of the case as provided by the lower court before deciding whether to affirm the decision or revoke it and order a retrial or acquit the defendant. Freedman (2005) states that 60% of the defendants who go through the direct review process have their cases referred back to the lower court for a re trial or are given lesser sentences. State collateral review is the fourth step in the defendant’s legal process. This step tries to offset the death penalty judgement. It is a way of offering the defendant a chance to use other means to challenge his/her sentence. The federal habeas corpus is the last step. The defendant escalates the case to the federal courts after his/her sentence has been affirmed at the state collateral review. This is the only option that defendants possess to challenge a death sentence at the federal court. The federal court’s primary role is to examine and make sure that the rights of the defendant have been held and respected by the prior processes.

An execution warrant is issued by a judge or Supreme Court, or the governor to set the execution date of the convict.

Offences eligible for capital punishment

There are approximately 41 crimes in the US that attract the death penalty. All of them are related to murder or the offences lead to or result in death of the victim or victims (ProCon.org, 2012).

Conclusion

The rate of executions and expanse of crimes that attract the death penalty in china is far greater than in the United States. Additionally, the number of defendants subjected to capital penalty process is fewer in the US compared to those in china. This implies that capital punishment policies in the United States are friendlier unlike in china. As such, the USA should pursue its policies instead of adopting the Chinese death policy.

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  1. Amnesty International. (2012). Death penalty facts. Retrieved from http://www.amnestyusa.org/our-work/issues/death-penalty/us-death-penalty-facts
  2. Amnesty international. (2016). Death penalty 2015: Facts and figures. Retrieved from https://www.amnesty.org/en/press-releases/2016/04/death-penalty-2015-facts-and-figures/
  3. Bienen, L. B. (2010). Murder and Its Consequences: Essays on Capital Punishment in America. Northwestern University Press.
  4. Death penalty information center (2017-a). federal executions 1927- present. Retrieved from https://deathpenaltyinfo.org/federal-executions-1927-2003
  5. Death penalty information center. (2017). INTERNATIONAL: United Nations Passes Death Penalty Moratorium Resolution With Record Support. Retrieved from https://deathpenaltyinfo.org/node/5993
  6. Fan, M., & Cha, E.A. (2008). China’s capital cases still secret, arbitrary. Retrieved from http://www.washingtonpost.com/wpdyn/content/article/2008/12/23/AR2008122302795.html
  7. Freedman, E. M. (2005). Giarratano Is a Scarecrow: The Right to Counsel in State Capital PostConviction Proceedings. Cornell L. Rev., 91, 1079.
  8. Lu, H. (2008). China’s Death Penalty: Reforms on Capital Punishment. East Asian Institute, National University of Singapore.
  9. Procorn.org. (2012). 41 Federal Capital Offenses. Retrieved from http://deathpenalty.procon.org/view.resource.php?resourceID=004927
  10. Trevaskes, S. (2008). The death penalty in China today: Kill fewer, kill cautiously. Asian Survey, 48(3), 393-413.
  11. United Nations human rights. (2017). Office of the high commissioner. Retrieved from http://www.ohchr.org/EN/Issues/DeathPenalty/Pages/DPIndex.aspx
  12. Zhou, Z. (2012). The Death Penalty in China: Reforms and Its Future.
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