Creative Death Penalty Reform in China: The Case of Drug Transportation

• Published date: 01 April 2016
• Date: 01 April 2016
• Author: Susan Trevaskes
• DOI: http://doi.org/10.1111/lapo.12051

Creative Death Penalty Reform in China: The Case of

Drug Transportation

SUSAN TREVASKES

China’s criminal justice system has, for decades, been consistently notorious as one of the

world’s most punitive. Recent reform of the nation’s decades-long harsh criminal justice policy to

instead balance severity with greater leniency has given reformist-minded judges and legal

experts some cause for optimism. However, it has also created a judicial dilemma in determining

how to apply this more lenient ethos in sentencing some capital crimes. This is particularly the

case for the capital crime of transporting drugs, which is the focus of this article. This article

reveals how reform can be achieved through skillful legal maneuvering for a crime category that

is caught between two contesting views of the social benefits of punishment.

INTRODUCTION

This article chronicles the journey toward capital punishment reform in a particular area

of death sentencingin China: drug transportation. Thiscrime can attract the death penalty

for drug mules who carry narcotics within China’s borders. This area of reform is an

important international human rights issue as close to half the people sentenced to death

in China these days are executed for drug offenses.

1

Drug transporters, usually poor rural

workers who carry but do not own or traffic the drugs, have for decades been routinely

executed for transporting beyond the legally specified fifty grams of heroin or metham-

phetamines. Many judges and prosecutors acknowledge that the act of transporting drugs

does not involve the high level of malicious intent and social harm that other drug crimes

involve, yet under the Criminal Law this crime is seen to be as serious as drug trafficking,

smuggling, and manufacturing, which areoffenses that are commonly committed by mem-

bers of organized drugsyndicates (Huang and Liu 2012; Li 2011; Zhang2011).

In 2005, the Communist Party (or Party) leaders signaled that they were willing to allow

the Supreme People’s Court (SPC) to move toward a more lenient capital punishment

regime. Given the impoverished social and economic background of most drug transport-

ers, and the fact that most are not directly involved in organized crime, drug transporting

crime would seem like an attractive category in which to apply a more lenient punishment

response. However, after 2006, while SPC reformers were successful in helping to bring

down execution rates for crimes such as murder (Trevaskes 2015a, 2015b), the path to

reform for drug crime was more problematic. This is because many politicians—particu-

larly senior members of the Party in provincial authorities in drug provinces in China’s

The author would like to acknowledge funding from the Australian Research Council (ARC) in conducting

this research. She would like to thank the anonymous reviewers for their comments.

Address correspondence to: Susan Trevaskes, Griffith University School of Humanities, Languages and

Social Science, Nathan Campus, Nathan, Brisbane, Queensland 4111 Australia. Telephone: 61 (7) 37355152;

E-mail: S.Trevaskes@griffith.edu.au.

LAW & POLICY, Vol. 38, No. 2, April 2016 ISSN 0265–8240

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C2016 The Author

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C2016 The University of Denver/Colorado Seminary

doi: 10.1111/lapo.12051

south—see all drug crime as highly damaging to the social fabric (Li 2011; Zhang 2011).

One reason why politics and policy is so influential in death sentencing is because the 1997

Criminal Law has remained highly amorphous and therefore open to the vicissitudes of

political whim. Policy fills the void in the Criminal Law, and this is problematic for local

judges when there are potentially contradictory criminal justice policies at play. A wide

space is given to judicial discretion in death sentencing in China. Judges make legal deci-

sions about life and death based on their assessment of the extent of social harm that a

given drug offense has inflicted on the community. Judicial perceptions of social harm

have their basis in Communist Party policy and attitudes to drugs.

To compound the problem, until recently, Party policy has failed to adequately distinguish

between the severity of social harm caused by different categories of drug crime. Therefore,

in the Criminal Law, mules caught transporting drugs have been given the same harsh treat-

ment as drug traffickers belonging to organized crime groups. Some SPC reformers have rec-

ognized that drug mules who transport drugs should not be regarded as seriously as those

who organize the manufacturing, sale, or smuggling of drugs. These reformers do not have

the authority to amend the law, but they do have the authority to advise lower court judges

about how to interpret the law. Given the context described above, I identify four main ele-

ments—the politics, policy, judicial discretion, and the Criminal Law—that have been the

main roadblocks to reforming punishment of drug transporters in China.

The first part of the article explores these roadblocks to reform by examining, in turn,

each of the four elements mentioned above and their relationship to one another. The sec-

ond part of the article is about how the SPC has sought to overcome these roadblocks by

promoting more individuated sentencing for drug transporters, based on a number of dif-

ferent potentially mitigating circumstances. The second part also examines how SPC

reformers developed a way of corralling judicial discretion and reforming death sentenc-

ing for drug transporters that did not require the cooperation of legislators or provincial

politicians. The final part of the article looks at the limitations of reform and the implica-

tions of the SPC’s efforts to corral judicial discretion in drug sentencing.

The particular path that SPC reformers took to bring about reform is interesting

because it has involved careful finessing of legal interpretation and policy rather than an

open debate against conservative opponents in the provinces. It has involved a consider-

able measure of political finesse in manipulating the above-mentioned four elements that

impact death penalty reform in this area.

The story of this journey toward reform is important because it exemplifies the chal-

lenges of legal reform and the creative solutions that need to be found around political

and legal roadblocks to change. Through this focus on one type of capital offense—drug

transporting—we can observe the interplay between various elements of Chinese law and

policy that can frustrate judicial reform and how careful and nuanced SPC-led reform can

work to overcome conflicting priorities of contrasting penal philosophies. Therefore, in

refracting the lens to drug transportation cases, we can gain a new understanding of the

nature of judicial reform in China and how it is achievable in an authoritarian state

despite lack of public support for change and despite lack of legislative progress in amend-

ing problematic drug crime provisions in the Criminal Law.

REFORM ROADBLOCKS

POLITICAL CONTEXT

Soon after China’s President Jiang Zemin stepped down from power in 2002, the new

Communist Party leadership headed by President Hu Jintao announced an ambitious

144 LAW & POLICY April 2016

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