China shows caution on executions

In 10 years on China’s highest court, Xuan Dong had a hand in the executions of 1,000 people -- most carried out by a bullet to the back of the head, often within weeks of the verdict.

On his worst days, he considered himself a Communist Party hanging judge.

Sitting on the Supreme People’s Court, he represented the last hope of the condemned. Secretly, he loathed rubber-stamping death sentences against people who he thought rarely deserved such a fate, often accepting confessions he knew were gained by torture. He watched silently as lawyers were beaten and dragged from court if they challenged the party’s will.

In 2000, Xuan walked away from the bench to battle for human rights. Now, as China re-evaluates its hard-line policies on capital punishment, the 59-year-old defense lawyer has called for public trials, more media exposure and protections for lawyers, and less party interference with the judiciary.

“The party should not give instructions” to judges, he said. “There have been changes bit by bit, but they are too slow.”

Recently, Chinese rights advocates such as Xuan have seen progress within a legal system that each year is estimated to execute more people than all other countries combined. Legislation enacted in 2006 requires the high court to review all death sentences, a step that had been dropped two decades ago.

Facing pressure before the 2008 Olympics in Beijing, China reportedly has scaled back the pace of executions. Although the government considers the number a state secret, China executed 1,051 people in 2006, accounting for two-thirds of the 1,591 put to death worldwide that year, according to statistics from Amnesty International, often based on media reports.

That represented a 40% drop from China’s recorded total of 1,770 the previous year. Yet because of state secrecy, some activists believe that the number of executions could be as high as 10,000 to 15,000 a year.

The high court reviewed only a small portion of capital cases in recent years. Lower courts had operated virtually without oversight since Deng Xiaoping gave them the power to impose capital punishment amid a crime wave in the 1980s. Acquittals are rare and appeals are made in the same court, heard by poorly trained provincial judges little inclined to contradict themselves, according to studies by criminal justice experts.

Flawed system

The studies, relying on interviews with lawyers and defendants, paint a bleak picture: There are no juries, police have unchecked powers and forensics are rarely used in reaching verdicts that vary wildly depending on region, party influence and a defendant’s connections.

Sixty-eight offenses, including such nonviolent crimes as tax evasion and pornography distribution, carry the death penalty. Officials are considering reducing the number of crimes punishable by execution, but say corruption, bribery and national security violations might still lead to death sentences.

The reforms, advocated by a growing lobby of Chinese lawyers and scholars, are part of a policy that officials call “kill fewer, kill carefully.” It calls for improved trial and review processes, and requires that all death penalty appeals be heard in open court.

Experts are divided over how much substance the reforms carry.

“For China, it’s an exciting breakthrough,” said Jerome A. Cohen, a New York University law professor and adjunct senior fellow for Asia Studies at the Council on Foreign Relations.

“Death penalty reforms will lead the way for improved procedures for other major criminal cases.”

Others say the Chinese legal system still lacks transparency.

“So you have the return of an important piece of review,” said Sharon Hom, director of the New York-based group Human Rights in China. “But you’re reviewing a system that is still politicized, that still does not welcome independent judges and where lawyers raising questions about abuse or torture are being harassed and beaten up.”

Human Rights in China released a report in 2006 documenting the abuse of defense lawyers. From 1997 to 2002, more than 500 were jailed.

In 2006, a judge “beat and choked” a lawyer for filing a case. “I am the court, the court is me, If I say the case will not be filed, the case will not be filed,” the report quoted the judge as saying.

A year before, a lawyer visiting a client was “beaten by five unidentified men and then taken into police custody,” the report said. The lawyer was freed only when his client’s trial was over.

Li Fangping, 33, a Beijing defense lawyer, got involved in death cases after seeing a man sentenced to death for stealing a cellphone. Each time he tried to defend himself, the judge silenced him. Li vowed to help change the system.

He has suffered some hearing loss because of beatings by police officers during subsequent cases. “In a big case, if you try to be aggressive in defending your client, that can often lead to trouble for you,” he said.

Li Heping, 37, another Beijing defense lawyer, said police tortured suspects to get confessions in several of his death penalty cases. They also denied him access to his clients.

“I’m seen as an enemy of the police,” he said. “When you come to court you feel surrounded by hunters. And you are their prey.”

Insider’s view

Xuan, the former judge, said he once saw officials tape a lawyer’s mouth shut. He said police tortured a defendant to make him change his story, then charged his lawyer with fabricating evidence.

Worse, he said, was the pressure exerted by party officials. Xuan once sentenced a police chief to death for setting a bomb intended to kill a party official. The bomb missed its target, but a vengeful party hierarchy sought to make an example of the would-be killer.

In some cases, the government has been embarrassed when the death penalty was handed down and carried out in error. One man was executed after being convicted of killing his wife, but she later turned up alive. Officials acknowledge that their “kill-fewer” campaign was prompted in part by such errors.

Yet China continues to use capital punishment as a political tool. In July, the head of the nation’s drug and food safety agency was executed for accepting bribes to allow approval of fake medicines that led to 10 deaths.

Along with more judicious use of the death penalty, activists are pressing for more candor.

“The number of executions remains a state secret -- they could shoot someone for revealing the number,” said Franklin Zimring, a UC Berkeley law professor and co-author of a book on the death penalty in Asia to be published this year. “That puts a damper on empirical research.”

Cohen, the New York professor, also cites China’s secretiveness: “It’s like the old joke about Soviet grain yields -- they’d say it was 50% over last year, but they never said what last year was.”

In the 1950s, China reportedly executed 1 million people a year, when the government considered “human life as a renewable resource,” Zimring said.

Experts hope China’s judicial reforms will provide lawyers with strategies such as evidence gathering and courtroom arguments -- rights they now lack, according to a study by the Max Planck Institute for Foreign and International Criminal Law, based in Freiburg, Germany.

In many lower court death cases, clients get lawyers only after they confess, and meetings are strictly monitored. Confessions obtained through torture are routinely admitted as evidence, the report says.

David Johnson, a University of Hawaii sociology professor and Zimring’s co-author, said China’s high court already had reversed several death sentences. Its reviews should extend the time between sentencing and execution, said Johnson, who in 2006 taught China’s first course on capital punishment to Peking University Law School students. Johnson said many young lawyers are convinced that China’s justice system needs to change. Many top officials agree.

“There’s a new dialogue,” said Roger Hood, a United Nations consultant and retired professor at the Oxford University Center for Criminology. “My Chinese colleagues used to be defensive. Now they seek to understand how other countries have abolished the death penalty.”

For his part, former judge Xuan hopes that one day party officials will not require judges to blindly follow party doctrine.

“I saw so many people die, I no longer had any emotion.”

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john.glionna@latimes.com

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Julie Zhang of The Times’ Beijing Bureau contributed to this report.