Op-Ed Contributors

Debate: Death penalty

(China Daily)
Updated: 2010-09-13 08:17

Yi Shenghua

Social realities do not favor a ban

The amendment to the Criminal Law, which proposes to drop the death penalty for 13 economics-related non-violent crimes and people above 75 years of age, may be the biggest in China's history of the Criminal Law.

As a professional lawyer who specializes in criminal defense, I want capital punishment to be banned. But I don't think this is the right time to abolish the death penalty, especially for the 13 economics-related crimes.

According to the amendment, the 13 crimes have three things in common: They are economics-related, non-violent and less likely to invite the death penalty. But only nine of the 13 are part of the "crimes breaking socialist market economy" laws. The others are not truly "economics-related".

Besides, the 13 crimes are not necessarily "non-violent" in nature. For example, armed gangs are often involved in smuggling, and it is not rare for the death penalty to be handed down in such cases. Hence, the amendment's proposal to drop the death penalty for the 13 crimes is neither reasonable nor persuasive.

On frauds, for example, the draft amendment proposes to drop capital punishment for crimes involving bills, financial instruments and letters of credit.

The draft, however, says the death penalty should not be lifted for fundraising frauds, one of the most controversial crimes.

There are many similarities in practice between an "illegal pooling of public deposits" and a "fundraising fraud". The most severe sentence for "illegal pooling of public deposits" would be only 10 years' imprisonment but for "fundraising fraud" it could be death. This means two similar crimes can invite two totally different punishments. It is thus important to drop the death penalty for all such crimes to avoid making a travesty of justice.

"Forging or selling forged special VAT (value added tax) invoices" is a crime, for which the amendment suggests the death penalty be dropped. But it proposes that similar kinds of "counterfeiting currency" be subject to capital punishment.

Since the two kinds of crime are similar and cause equal harm, they should not be treated as being different in nature.

If the amendment is passed, it may prompt criminals to "shift" from committing crimes that invite severe punishment - or even the death penalty - to crimes that invite light punishment. This certainly goes against the original intent of the amendment.

Another subject being hotly debated is whether the death penalty should be lifted in bribery and corruption cases. I believe that as long as death penalty exists, the law should treat people equally and not allow the old feudal privileges to be revived, which during imperial rule protected government officials from severe punishment.

Corruption is one of the main reasons for social inequality. It leads to other, heinous crimes.

The existing system to combat corruption is very severe, and the death penalty is still one of the strongest deterrents to criminals.

But once the death sentence is abolished the cost one pays for being corrupt would be reduced drastically. That could lead to a dramatic rise in the number of corruption cases. Some corrupt officials could usurp huge amounts of social wealth even at the risk of losing their freedom. Moreover, people would lose confidence in the country's judicial system, aggravating social contradictions.

No matter how the death penalty regime is reformed, the goal should be to reduce crimes and maintain social justice. But if the results run counter to the original intention, a legal reform could only be a setback for justice.

The author is a Beijing-based lawyer.

(China Daily 09/13/2010 page9)