China Esquire

Here is an encouraging story about how the Chinese Supreme People’s Court has been rejecting a number of death sentences that have been dealt out by lower courts. It could be more encouraging if you are against capital punishment (as so many Americans are), but if you consider the effect on the Chinese legal and judicial system, I believe it already is.

From Reuters (and h/t to China Digital Times):

China’s top court has rejected 15 percent of death sentences handed by lower courts, citing poor evidence and procedural errors under new rules, but a top judge said the death penalty will remain in place for a long time.

China keeps secret the number of prisoners it executes, but international human rights observers have no doubt it judicially kills more than any other country — with estimates of executions somewhere between 1,000 and 12,000 a year in recent times.

But from the start of 2007, China’s Supreme People’s Court took back power of final approval on death penalties, relinquished to provincial high courts in the 1980s, and promised to apply the ultimate punishment more carefully.

In a rare glimpse into how the new rule is working, the president of the top court’s criminal law chamber, Huang Ermei, said that in 2007 it rejected 15 percent of death sentences passed by lower courts, according to the China News Service on Saturday. She gave no hint of the overall number of executions.

Huang said the rejections were due to “unclear facts, insufficient evidence, inappropriate determination of punishment and unlawful procedures.”

She also said 2007 was the first year that the number of prisoners who received “death penalties with reprieve” — that convert into long prison terms after two years unless the convict offends again — was more than the number outright executed.

Huang did not say how many of the prisoners whose death sentences were rejected were then freed or given jail sentences.

Again, this is very encouraging news because it shows a number of things. First, higher Chinese courts are recognizing that lower courts do need improvement. What was cited? “[U]nclear facts, insufficient evidence, inappropriate determination of punishment and unlawful procedures.” It means the Chinese judiciary, as fallible as it may be, is improving. It can now recognize, at least at the higher levels, that judges do rule upon poor factual evidence and apply improper procedural law. So we have a marked improvement as 15% is quite a bit.

Second, it means the increase in the rule of law. Procedural law, which I hated in law school (but have come to deeply appreciate as a practitioner), actually has authority in China–at least, among the higher courts. Chinese courts will hopefully continue to honor and improve in their application of procedural law. Note that the Supreme People’s Court wants apply the punishment more carefully.

Finally, and this is more qualitative and sentimental, the Chinese high court is taking a role that is more akin to our high courts. The California Supreme Court regularly deals with death penalty appeals, though I believe it only overturns about 10% of those cases. Knowing that the Chinese Supreme Court is doing so, and rejecting 15% of the death penalties, gives me a deep sense of hope that the judicial system in China will one day be quite respectable.

So yes, the government is secretive as to how many executions take place. That could improve. But if this is one step at a time, this is quite a big one.

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