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The Death Penalty and Its Reforms in China and Other Countries

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On the Alternative Punishment to the Death Penalty in China

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Abstract

This chapter focus on the death penalty and its reform in China and other countries. Since 1949, China has had different death penalty policies in different phrases of its history. In the first thirty years, from 1949 to 1979, China’s implementation of its policy on carrying out the death penalty was cautious and strict. During these thirty years, there was no criminal code until 1979, and China was a “disorderly and lawless society”, although we can at least see that the application of the death penalty was accompanied by the expression “cautious and strict” in political documents. Even the first Criminal Law, which was adopted in 1979, only stipulated only 28 crimes punishable by death. It was considered by far the best code to be adopted in the history of China. When, in 1979, China launched its policy of opening up and reform, the whole of society underwent great changes and the crime rate dramatically increased. In order to control crime, China frequently adopted specific Criminal Laws and provided the death penalty for many crimes, which was considered an expansion of the execution legislation. China’s first step to reduce the use of the death penalty legislatively was in 2011, when the Eighth Amendment was adopted. This amendment removed the death penalty from 13 crimes. Then, in 2015, the Ninth Amendment was adopted and repealed the death penalty for 9 crimes. Currently, there are 46 crimes punishable by death. In the near future, China will gradually and strategically abolish the death penalty. This chapter also looks at death penalty reform in other states, considering, for instance, Japan and Indonesia as retentionist states, and death penalty reform in the abolitionist states in Europe, death penalty reform in Central Asia, and death penalty reform in the USA.

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Notes

  1. 1.

    MAO Zedong, The Party’s Mass line must be followed in Suppressing Counter-revolutionaries, Selected Works of Mao Tse-tung: vol. 5, available at: https://www.marxists.org/reference/archive/mao/selected-works/index.htm (Last visited: January 17th, 2024).

  2. 2.

    Ibid.

  3. 3.

    Ibid.

  4. 4.

    张守文, 米传勇[ZHANG Shouwen and MI Chuanyong], 《中国死刑政策的过去、现在及未来》[The Past, Present and Future of the Death Policy in China], 法学评论 [Law Review] 2006, No. 2, 40; See also 陈兴良 [CHEN Xingliang], 《死刑政策之法理解读》 [The Death Penalty Policies: A Jurisprudential Perception], 中国人民大学学报 [Journal of Renmin University of China] 2013, No. 6, 3.

  5. 5.

    高铭暄[GAO Mingxuan], 《死刑60年：新中国死刑立法的变迁与展望》[60 years of the Death Penalty: the Evolution of and Prospects for the Capital Legislation of New China], available at: 人民网[People Net] http://history.people.com.cn/n/2014/1030/c372326-25936904.html (Last visited: January 17th, 2024).

  6. 6.

    Gao Mingxuan and Zhao Bingzhi, above no. 65, 69.

  7. 7.

    陈兴良[CHEN Xingliang], 《死刑政策之法理解读》 [The Death Penalty Policies: A Jurisprudential Perception], above no. 209, 3.

  8. 8.

    GAO Mingxuan and ZHAO Bingzhi, above no. 65, 77.

  9. 9.

    《人民日报》[People’s Daily], Beijing, October 29th, 1978, Cited in GAO Mingxuan and ZHAO Bingzhi, above no. 65, 74.

  10. 10.

    彭真[PENG Zhen], 《关于七个法律草案的说明》[An Explanatory note to the Seven Draft Laws], available at: 中国共产党新闻网 [News of Communist Party of China] http://cpc.people.com.cn/GB/69112/99985/100003/9739230.html (Last visited: January 17th, 2024).

  11. 11.

    《中华人民共和国刑法》[The Criminal Law of the People’s Republic of China], Order No. 5, 1979, Article 1.

  12. 12.

    Ibid., Article 43.

  13. 13.

    Ibid., Article 44.

  14. 14.

    Article 44(2) of the Criminal Law 1979 provided that ‘all death sentences, except for those that according to law should be decided by the Supreme People’s Court, shall be submitted to the Supreme People’s Court for approval’. However, on June 10th, 1981, the NPC Standing Committee formulated an adaptation on reviewing the death sentence by issuing a Decision, which provided that, within the period from 1981 to 1983, in any case where a person who commits the crimes of homicide, robbery, rape, arson, causing an explosion, poisoning, breaching a dike, or sabotaging any means of transport, any transportation facility or electric power facility, is sentenced to death by High People’s Courts in the provinces, autonomous regions and special municipalities, or by the Intermediate People’s Court in the first instance, and if the defendant does not appeal, and the sentence is verified and approved by the High People’s Court, or the sentence is imposed by the High People’s Court in the first instance, and the defendant does not appeal, all of these sentences do not have to be submitted to the Supreme People’s Court for verification and approval. See 《全国人民代表大会常务委员会关于死刑案件核准问题的决定》 [The Decisions of the NPC Standing Committee on the Issues of Verifying and Approving Death Sentences], adopted by the 19th Session of Standing Committee of China’s National Fifth National People’s Congress (NPC), on June 10th, 1981. In addition, on September 7 1983, the Supreme People’s Court made a notification to authorize the High People’s Courts in the provinces, autonomous regions and special municipalities, and the Military Court to verify and approve the death sentence in accordance with the laws imposed on criminals who commit homicide, robbery, rape, causing an explosion and other crimes which cause serious damage to public safety. See 《最高人民法院关于授权高级人民法院核准部分死刑案件的通知》 [The Supreme People’s Court’s Notification on the Authorization the High People’s Courts to Verify and Approve some Death Sentence Cases], on September 7th, 1983.

  15. 15.

    In accordance with the Criminal Law of 1979, there were 10 articles, which were Articles 90, 91, 92, 93, 94, 95, 96, 97, 100 and 101, providing for 15 crimes punishable by death in Chap. 1 (crimes of counter-revolution), 2 articles (Article 106 and Article 110) providing 8 crimes punishable by death in Chap. 2 (crimes of endangering public security), 2 articles (Article 132 and Article 139) providing 3 crimes punishable by death in Chap. 4 (crimes of infringing upon citizens’ personal and democratic rights), and 2 articles (Article 150 and Article 155) providing 2 crimes punishable by death in Chap. 5 (crimes of property violation). See 《中华人民共和国刑法》[The Criminal Law of the People’s Republic of China], Order No. 5, 1979.

  16. 16.

    See Articles 103, 106, 110, 132, and others of the 1979 Criminal Law.

  17. 17.

    李洁 [LI Jie], 《慎重修改刑法论》[On Modifying Cautiously the Criminal Law], 刑事法评论[Criminl Law Review], edited by 陈兴良[CHEN Xingliang], 中国政法大学出版社[China University of Political Science and Law Press], Beijing, 2002, Vol. 11, 314.

  18. 18.

    葛平, 王洪谷[GE Ping and WANG Honggu], 《谈死刑》[On the Death Penalty], 法学研究[Chinese Journal of Law] 1980, No. 1, 29; See also 力康泰 [LI Kangtai], 《正确认识和适用死刑》[Understanding and Applying Correctly the Death Penalty], 北京政法学院学报[ Tribune of Beijing Colleague on Political Science and Law] 1983, No. 2, 18. In this paper, the authors said that, in China, at the present stage, the death penalty still cannot and shall not be abolished due to the existence of the remnants of the exploiting class and the existence of internal class struggle and international reactionaries.

  19. 19.

    中华人民共和国最高人民法院[The Supreme People’s Court of P.R.C], 《数说人民法院审批工作60年》[Showing the People’s Courts’ Trail Works by Statistics Over 60 Years], available at: 最高人民法院网[Supreme People’s Court Net]  http://www.court.gov.cn/fabu-xiangqing-119.html (Last visited: January 17th, 2024).

  20. 20.

    张守文, 米传勇[ZHANG Shouwen and MI Chuanyong], above no. 209, 40.

  21. 21.

    DENG Xiaoping, Bourgeois Liberalization Means Taking the Capitalist Road, The Selected Works of Deng Xiaoping, available at: https://dengxiaopingworks.wordpress.com/2013/03/18/bourgeois-liberalization-means-taking-the-capitalist-road/ (Last visited: January 17th, 2024).

  22. 22.

    《中共中央发出 < 关于严厉打击刑事犯罪活动的决定  》[CPC’s Decision on Cracking Down Severely On Crimes], available at: 中国共产党新闻网[News of the Communist Party of China] http://cpc.people.com.cn/GB/64162/64165/68640/68665/4739396.html (Last visited: January 18th, 2024).

  23. 23.

    DENG Xiaoping, Bourgeois Liberalization Means Taking the Capitalist Road, above no. 226.

  24. 24.

    See also 陈兴良 [CHEN Xingliang], 《死刑政策之法理解读》 [The Death Penalty Policies: A Jurisprudential Perception], above no. 209, 4.

  25. 25.

    高铭暄[GAO Mingxuan], 《死刑60年：新中国死刑立法的变迁与展望》[60 years of the Death Penalty: the Evolution of and Prospects for the Capital Legislation of New China], above no. 210.

  26. 26.

    《中华人民共和国刑法》[Criminal Law of the People’s Republic of China], Order No. 83, March 14th 1997.

  27. 27.

    王汉斌[WANG Hanbin], 《关于 < 中华人民共和国刑法（修订草案）的说明》[Introduction on the Draft to the Criminal Law of P.R.C], available at: Law library http://www.law-lib.com/fzdt/newshtml/20/20050812041456.htm (Last visited: January 18th, 2024). However, apparently, the number of crimes punishable by death has become fewer than ever due to two important considerations; namely, some crimes punishable by death according to the Special Criminal Laws were abolished, or the death penalty itself was abolished for a few crimes; and some crimes punishable by death were merged or certain provisions or articles were merged by legislative technicality.

  28. 28.

    Article 43 of Criminal Law 1979 provided that ‘the death penalty shall only be applied to criminals who have committed the most heinous crimes’, but Article 48 of Criminal Law 1997 provided that ‘the death penalty shall only be applied to criminals who have committed extremely serious crimes’. See 《中华人民共和国刑法》 [The Criminal Law of the People’s Republic of China], Order No. 5, 1979 and 《中华人民共和国刑法》[Criminal Law of the People’s Republic of China], Order No. 83, March 14th, 1997.

  29. 29.

    Scholars have pointed out that the concept of “the most heinous crimes (罪大恶极)” emphasizes both of two facts: objectivity and subjectivity; specifically, that the objectively harmful consequence of the crime is extremely serious, and that the subjective culpability of the offender’s mind is extremely serious, but the concept of ‘extremely serious crimes (罪行极其严重)’ only emphasizes the objective consequences of harm to society. So the change from ‘the most heinous crimes’ to ‘extremely serious crimes’ already lowers the applicable standards of death penalty. Moreover, some scholars noted that, compared with ‘extremely serious crimes’, ‘the most heinous crimes’ had stricter demands in terms of the number of crimes punishable by death and the concrete applicable conditions for the death penalty, and imposed more stringent restrictions on the stipulation of crimes punishable by death in the Specific Provisions of the Criminal Law and on the death sentence in judicial practice. See 张远煌[ZHANG Yuanhuang], 《我国死刑适用标准的缺陷及其弥补方法》[On the Defects of Applicable Standards of the Death Penalty in China and their Solution], 法商研究[Studies in Law and Business] 2006, No. 6, 40; 储怀值[CHU Huaizhi], 《死刑司法控制：完整解读第四十八条》[Judicial Control of Death Penalty: A Comprehensive Understanding of Article 48 of Penal Code], 中外法学[Bejing University Law Journal] 2012, No. 5, 1014; 赵秉志 [ZHAO Bingzhi],《刑罚总论问题探索》 [Exploring the Issues of Punishments in the General Provisions of Criminal Law], 法律出版社 [Law Press], Beijing, 2002.

  30. 30.

    《中华人民共和国刑法》 [The Criminal Law of the People’s Republic of China], Order No. 5, 1979, Article 44.

  31. 31.

    Ibid, Article 46.

  32. 32.

    Ibid, Article 50.

  33. 33.

    Amnesty International, The Death Penalty Worldwide: Developments in 1996, Al Index: ACT 50/05/97. We have to note that Chinese government launched “cracking down severely” policy on Crimes, so the execution number is higher than the following years.

  34. 34.

    Amnesty International, The Death Penalty Worldwide: Developments in 1997, Al Index: ACT 50/04/98.

  35. 35.

    Amnesty International, Death Sentences and Executions in 1998, Al Index: ACT 51/01/99.

  36. 36.

    《江泽民论人权》 [On Human Rights by Jiang Zemin], available at: 人民网[People’s Net] http://politics.people.com.cn/GB/8198/5139784.html (Last visited: January 18th, 2024).

  37. 37.

    Since the first anti-crime campaign was launched in 1983, China has launched four similar campaigns; in 1983, 1996, 2004 and 2010. In addition, in 2014, the country launched an anti-terrorist campaign in Xin Jiang province.

  38. 38.

    NEUMAYER Eric, Death Penalty: The Political Foundations of the Global Trend towards Abolition, Human Rights Review, 2008, Vol. 9, No. 2, 253.

  39. 39.

    《中共中央加强改进新形势下党建若干重大问题的决定》[Decision of the CPC Central Committee on Major Issues on Strengthening and Improving Party Building], available at: 中央人民政府[Central People’s Government of P.R.C.] http://www.gov.cn/jrzg/2009-09/27/content_1428158.htm (Last visited: January 18th, 2024).

  40. 40.

    On October 18, 2006, the Sixth Plenary Session of the Sixteenth Central Committee of the CPC decided that China would implement the criminal policy of severity tempered with gentleness in the future. See 《中共中央关于构建社会注意和谐社会若干重大问题的决定》 [Decision of the CPC Central Committee on Certain Major Issues in the Building of a Harmonious Socialist Society], available at: 中国共产党新闻网[News of Communist Party of China]. http://cpc.people.com.cn/GB/64093/64094/4932424.html (Last visited: January 18th, 2024). With this Decision it also emphasized its intention to crack down heavily on severe crime by means of the law, to attempt to regulate areas with serious security problems, and to significantly rein back the upward growth in criminal activity.

  41. 41.

    The Death Penalty in China—the road to reform, available at: Faculty of Law of Oxford University. https://www.law.ox.ac.uk/research-subject-groups/research-index/impact-index/death-penalty-china-road-reform (Last visited: January 18th, 2024).

  42. 42.

    Here we must note that the White Paper on Judicial Reform in China was published on October 9 2012 when China was still in the Hu era, although in effect, it had already entered the Xi era, Xi being elected as General Secretary of the Central Committee of the Communist Party of China (CPC) on November 15 2012.

  43. 43.

    The Information Office of the State Council of P.R.C, Judicial Reform in China, available at: 中国共产党新闻网 [News of the Communist Party of China]. http://english.cpc.people.com.cn/206972/206981/8211483.html (Last visited: January 19th, 2024).

  44. 44.

    Decision of the Central Committee of the Communist Party of China on Some Major Issues Concerning Comprehensively Deepening the Reform, above no. 5.

  45. 45.

    The CCP Central Committee Decision Concerning Some Major Questions in Comprehensively Moving Governing the Country According to the Law Forward, above no. 33.

  46. 46.

    《中华人民共和国刑法修正案(九)》 [The Ninth Amendment to the Criminal Law of the People’s Republic of China], above no. 6, Article 2.

  47. 47.

    陈丽平[CHEN Liping], 《点击中华人民共和国刑法修正案（九）草案的七大亮点》[Clicking on the 7 highlights of the Draft of the Ninth Amendment to the Penal Code of the P.R.C], 法制日报[Legal Daily News], October 28th, 2014, 3.

  48. 48.

    Here, death row is very different from the “death row” in America where the criminal spends a long time waiting for execution; some inmates even have to spend several decades awaiting execution. In China, death row is the probation period, which is not less than two years. See DREHLE David Von, The Death of the Death Penalty: why the Era of Capital Punishment is Ending, available at: http://time.com/deathpenalty/ (Last visited: January 19th, 2024).

  49. 49.

    The CCP Central Committee Decision Concerning Some Major Questions in Comprehensively Moving Governing the Country According to the Law Forward, above no. 33.

  50. 50.

    It has recently become very common for public opinion to influence the judiciary, particularly in the criminal justice field, and the impact of public opinion is increasing, as can be seen in the following cases: 许霆 [XU Ting] （2007）穗中法刑二初字第196号[ (2007) Hui Intermediate the Second Criminal Court First Trial. No. 196, (2008) 穗中法刑二重字第2号 [(2008) Hui Intermediate the Second Criminal Court Second Trial. No. 2; 药家鑫 [YAO Jiaxin] (2011) 西刑一初字第68号 [(2011) Xi the First Criminal Court First Trial. No. 68]; 李昌奎 [LI Changkui] (2010) 昭中刑一初字第52号 [(2010) Zhao intermediate Criminal Court First Trial. No. 52], (2010) 云高法终字第1314号 [(2010) Yun High Court Second Trial No. 1314]. All of which reflect the influence of public opinion on criminal practice. The most important impact of public opinion is to influence the judges’ sentencing decisions, as, for example, in the case of Xu, where the punishment was changed from life imprisonment to a fixed term of 5 years, in the case of Yao, where public opinion was always focused on the death penalty in the two trials, and in the case of Li, where the sentence was changed from the death penalty with immediate execution to a suspended death penalty, which then became the death penalty with execution at the retrial. In all of these cases public opinion played an important role in changing sentences.

  51. 51.

    The CCP Central Committee Decision Concerning Some Major Questions in Comprehensively Moving Governing the Country According to the Law Forward, above no. 33.

  52. 52.

    We have indirect evidence of this from the legislator. The Vice-Chairmen of the Law Committee of the National People’s Congress of the P.R.C., Li Shishi, when delivering the explanatory note for the Draft of the Ninth Amendment to the Criminal Law of the P.R.C. said that since the death penalty for 13 economic and nonviolent crimes had been abolished by the Eighth Amendment in 2011, the general security situation of Chinese society is within a controllable range and the number of serious crimes is stable, with a slight decline. The initiative has already indicated that the abolition of the death penalty for 13 crimes by the Eighth Amendment did not have any negative impact on society, and sections of society in China have reacted positively to the abolition and commented on this. However, we must note that the death penalty for these crimes is seldom or never applied in judicial practice, and its abolition would not cause any negative impact on public security (See 陈兴良 [CHEN Xingliang], 《减少死刑的立法路线图》 [Reduction of the Legislation Road Map for the Death Penalty], 政治与法律 [Political Science and Law] 2015, No. 7, 71; 黄太云 [HUANG Taiyun], 《 < 中华人民共和国刑法修正案（八）  解读(一) 》[Unscrambling the Amendment VIII to the Criminal Law (The First Part)], 人民检察[People’s Procuratorial Semi-monthly] 2011, No. 6, 6.

  53. 53.

    赵秉志[ZHAO Bingzhi], 《论中国非暴力犯罪死刑的逐步废止》[On Abolition of Death Penalty of Non-Violent Crimes in China], 中国刑法学年会文集(第1卷: 死刑问题研究)[Collected Works of 2004 Annual Conference of China’s Criminal Law: On the Death Penalty (Volume 1)], 中国人民公安大学出版社[China’s People’s Public Security University Press], Beijing, 2004, 779.

  54. 54.

    赵秉志[ZHAO Bingzhi], 《中国死刑立法改革新思考——以《刑法修正案（九）（草案）》为主要视角》[New Thinking on Death Penalty in China: With the Perspective of Amendment ( Draft) to Criminal Law], 吉林大学社会科学学报[Ji Lin University Journal Social Sciences Edition] 2015, Vol. 55, No. 1, 8.

  55. 55.

    曲晟[QU Sheng], 《论我国死刑制度新动向及其出路：兼评《刑法修正案（八）》的死刑制度》[On the New Tendency of Death Penalty System and its Outlet in China: Reviewing the Death Penalty System in the Eighth Amendment], 求索[Search] 2012, No. 2,133.

  56. 56.

    陆建红[LU Jianhong], 《 “绝对”死刑条款的适用研究》[On the Application of Terms of “Absolutely Determinate Death Penalty System], available at:  http://china.findlaw.cn/hetongfa/mianzetiaokuan/168886.html (Last visited: January 19th, 2024).

  57. 57.

    赵秉志[ZHAO Bingzhi], 《中国死刑立法改革新思考——以《刑法修正案（九）（草案）》为主要视角》[New Thinking on Death Penalty in China: With the Perspective of Amendment ( Draft) to Criminal Law], above no. 260, 8.

  58. 58.

    李昌奎 [LI Changkui](2010) 昭中刑一初字第52号 [(2010) Zhao intermediate Criminal Court First Trial. No. 52], (2010) 云高法终字第1314号 [(2010) Yun High Court Second Trial No. 1314].

  59. 59.

    药家鑫 [YAO Jiaxin] (2011) 西刑一初字第68号 [(2011) Xi the First Criminal Court First Trial. No. 68].

  60. 60.

    霍存福[HUO Cunfu], 《复仇·报应刑·报应说——中国人法律观念的文化解说》[Vengeance, Retributive Penalty and the Theory of Retribution: Explicating Culturally the Legal Concept of Chinese], 吉林人民出版社[Jilin People’s Publishing House], Ji Lin, 2005, 5.

  61. 61.

    王勇[WANG Yong], 《中国死刑研究的三个误区与路径调整》[On the Three Misunderstanding Areas of the Study of Death Penalty in China and the Adjustment of Approaches], 吉林大学社会科学学报[Jilin University Journal Social Sciences Edition] 2012, Vol. 52, No. 5, 130.

  62. 62.

    陆建红[LU Jianhong], above no. 262.

  63. 63.

    See Amnesty International Global Report, The Death Sentences and Executions 2016, Index: ACT 50/5740/2017, April 2017.

  64. 64.

    Ibid, 4. This report covers the judicial use of the death penalty for the period Jaunuary to December 2016, and it is only on executions, death sentences and other aspects of the use of the death penalty, such as commutations and exonerations, where there is reasonable confirmation. This report’s figures on the use of the death penalty are minimum figures, the true figures are likely to be higher. This numbe does not include the thousands of executions carried out in China. See ibid, 2, 4.

  65. 65.

    Ibid, 3 and 9.

  66. 66.

    MRAE Dave, Indonesian Capital Punishment in Comparative Perspective, Bijdragen tot de taal, land-en volkenkunde [Journal of the Humanities and Social Sciences of Southeast Asia] 2017, Vol. 173, Issue 1, 3.

  67. 67.

    Penal Code of Japan, Act No. 45 of April 24, 1907 (日本国刑法45号，1907年4月24日), Article 9. These six principal punishments include the death penalty, imprisonment with work, imprisonment without work, a fine, misdemeanor imprisonment without work and a petty fine.

  68. 68.

    Ibid, Article 11. However, some scholars say that the Penal Code and other special laws outline eighteen crimes that are punishable by death; in practice, death sentences have been used only for convictions of murder, robbery-murder and rape-murder. See SHER Elizabeth M, Death Penalty Sentencing in Japan under the Lay Assessor System: Avoiding the Avoidable through Unanimity, Pacific Rim Law & Policy Journal, 2011, Vol. 20, No. 3, 644; see also AMBLER Leah, The People Decide: The Effect of the Introduction of the Quasi-Jury System (Saiban-In Seido) on the Death Penalty in Japan, Northwestern Journal of International Human Rights, 2008, Vol. 6, Issue 1, 5.

  69. 69.

    AMBLER Leah, above no. 274, 5.

  70. 70.

    All these data are from the Amnesty International Global Report: Death Sentences and Executions 2016 (Index: ACT 50/5740/2017), Death Sentences and Executions 2015 (Index: ACT 50/3487/2016), Death Sentences and Executions 2014 (Index: ACT 50/001/2015), Death Sentences and Executions 2013 (Index: ACT 50/001/2014), Death Sentences and Executions 2012 (Index: ACT 50/001/2013), Death Sentences and Executions 2011 (Index: ACT 50/001/2012), Death Sentences and Executions 2010 ( Index: ACT 50/ 001/2011), Death Sentences and Executions 2009 (Index: ACT 50/001/2010), Death Sentences and Executions 2008 (Index: ACT 50/ 003/2009), Death Sentences and Executions 2007 (Index: ACT 50/ 001/2008).

  71. 71.

    See AMBLER Leah, above no. 274, 15; see also The Justice System Reform Council, Recommendations of the Justice System Reform Council–-for a Justice System to Support Japan in the 21st Century–-, available at:  http://japan.kantei.go.jp/judiciary/2001/0612report.html (Last visited: January 19th, 2024).

  72. 72.

    See AMBLER Leah, above no. 274, 22.

  73. 73.

    JOHNSON David T., Retention and Reform in Japanese Capital Punishment, University of Michigan Journal of Law Reform, 2016, Vol. 49, No. 4, 865.

  74. 74.

    MRAE Dave, above no. 272, 2.

  75. 75.

    Indonesia, available at:  https://en.wikipedia.org/wiki/Indonesia (Last visited: January 19th, 2024).

  76. 76.

    Law of the Republic of Indonesia 27 of 1999 on the Penal Code, May 19, 1999, Articles 10 and 11.

  77. 77.

    Ibid. See HERIYANTO Dodik Setiawan Nur and HUANG Gui, Death Penalty Legislation in China and Indonesia Under International Human Rights Law Perspective, JURNAL HUKUM IUS QUIA IUSTUM, 2016, Vol. 23, Issue 4, 589.

  78. 78.

    See Undang-Undang REPUBLIK INDONESIA NOMOR 21 TAHUN 1959, available at:  file:///C:/Users/huanggui/Downloads/UU_NO_21_1959.HTM (Last visited: April 24th, 2017).

  79. 79.

    See UNDANG-UNDANG REPUBLIK INDONESIA NOMOR 1 TAHUN 1963, available at:  http://www.dpr.go.id/dokjdih/document/uu/UU_1963_1.pdf  . (Last visited: April 24th, 2017).

  80. 80.

    See UNDANG-UNDANG REPUBLIK INDONESIA NOMOR 31 TAHUN 1999, available at:  http://www.kpu.go.id/dmdocuments/UU%20PNS.pdf; see also, UNDANG-UNDANG REPUBLIK INDONESIA NOMOR 20 TAHUN 2001, available at:  http://www.kpu.go.id/dmdocuments/UU202001.pdf   (Last visited: January 19th, 2024).

  81. 81.

    See, PERATURAN PEMERINTAH REPUBLIK INDONESIA NOMOR 39 TAHUN 2005, available at:  http://peraturan.go.id/inc/view/11e44c4f0c1a8d609dee313231383331.html (Last visited: January 20th, 2024).

  82. 82.

    See UNDANG-UNDANG REPUBLIK INDONESIA NOMOR 9 TAHUN 2013, available at:  http://kesbangpol.kemendagri.go.id/files_arsip/uu_no.09-2013_.pdf(Last visited: January 20th, 2024).

  83. 83.

    See UNDANG-UNDANG REPUBLIK INDONESIA NOMOR 4 TAHUN 1976, available at:  http://ditjenpp.kemenkumham.go.id/arsip/ln/1976/uu4-1976.pdf (Last visited: January 20th, 2024).

  84. 84.

    See HERIYANTO Dodik Setiawan Nur and HUANG Gui, above no. 283, 589.

  85. 85.

    See Amnesty International Global Report: Death Sentences and Executions 2016 (Index: ACT 50/5740/2017), Death Sentences and Executions 2015 (Index: ACT 50/3487/2016).

  86. 86.

    Amnesty International Global Report: Death Sentences and Executions 2016 (Index: ACT 50/5740/2017), 10.

  87. 87.

    See Amnesty International Global Report: Death Sentences and Executions 2012 (Index: ACT 50/001/2013); Death Sentences and Executions 2009 (Index: ACT 50/001/2010).

  88. 88.

    See MRAE Dave, above no. 272, 6.

  89. 89.

    PASCOE Daniel, Three Coming Legal Challenges to Indonesia’s Death Penalty Regime, The Indonesian Journal of International & Comparative Law, 2015, Vol. II, Issue. 2. 278.

  90. 90.

    Ibid, 245.

  91. 91.

    MRAE Dave, above no. 272, 2.

  92. 92.

    LYNCH Columan, Indonesia’s Use of Capital Punishment for Drug-Trafficking Crimes: Legal Obligations, Extralegal Factors, and the Bali Nine Case, Columbia Human Rights Law Review, 2009, Vol. 40, Issue. 2, 540.

  93. 93.

    PASCOE Daniel, above no. 296, 240.

  94. 94.

    Ibid, 239.

  95. 95.

    ANNERMARIEKE Beijer, The Debate on Capital Punishment in the Netherlands and Germany, International Criminal Justice Review, 2000, Vol. 10, Issue. 1, 99.

  96. 96.

    Ibid.

  97. 97.

    See ibid, 100.

  98. 98.

    See ibid.

  99. 99.

    Ibid, 101.

  100. 100.

    See HESSING Dick J. KEIJSER Jan W., and ELFFERS Henk, Explaining Capital Punishment Support in an Abolitionist Country: The Case of the Netherlands, Law and Human Behavior, 2003, Vol. 27, No. 6, 606. This paper says that in 1878 the death penalty was abolished for crimes committed in peace time. But in 1983 the death penalty was formally abolished for all crimes, including war crimes.

  101. 101.

    See JAMES M. Donoval, Public Opinion and the French Capital Punishment Debate of 1908, Law and History Review, 2014, Vol. 32, No. 3, 577.

  102. 102.

    ANNERMARIEKE Beijer, above no. 302, 101.

  103. 103.

    See Ibid.

  104. 104.

    Ibid.

  105. 105.

    See Capital Punishment in Iceland, available at:  https://en.wikipedia.org/wiki/Capital_punishment_in_Iceland (Last visited: January 20th, 2024).

  106. 106.

    See Capital Punishment in Sweden, available at:  https://en.wikipedia.org/wiki/Capital_punishment_in_Sweden (Last visited: January 20th, 2024). In 1921, the death penalty was abolished for crimes committed in peace time, and, in 1973, it was abolished for all crimes, including crimes committed in time of war.

  107. 107.

    See JAMES M. Donovan, above no. 308, 575.

  108. 108.

    MAJA Nastić, ECHR and National Constitutional Courts, Zbornik Radova Pravnog Fakulteta u Nisu, 2015, Issue. 71, 203.

  109. 109.

    The European Convention on Human Rights, Article 3.

  110. 110.

    Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty, as Amended by Protocol No. 11 ( Strasbourg, 28.IV.1983), Article 2.

  111. 111.

    Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the Abolition of the Death Penalty in all Circumstances, (Vilnius, 3.V. 2002).

  112. 112.

    The Charter of Fundamental Rights of the European Union (2000/C 364/01), Article 2.

  113. 113.

    EU Lines to Take on the Policy of the Council of Europe in Relation to the Death Penalty, (Strasbourg, 05/04/2017), available at:  https://eeas.europa.eu/headquarters/headquarters-homepage/24625/eu-lines-take-policy-council-europe-relation-death-penalty_en (Last visited: January 20th, 2024).

  114. 114.

    MANACORDA Stefano, Restraints on the Death Penalty in Europe: A Circular Process, Journal of International Criminal Justice, 2003, Vol. 1, Issue. 2, 265.

  115. 115.

    YORKE Jon, Inhuman Punishment and Abolition of the Death Penalty in the Council of Europe, European Public Law, 2010, Vol. 16, No. 1, 81.

  116. 116.

    MADAI Sándor, 《第二次世界大战后匈牙利死刑改革分析》 [ Evolution of Capital Punishment Regulations in Hungary following World War II], traslated by Xiao Fan, 刑法评论 [Chinese Criminal Law Review] 2016, Vol. 29, Issue. 1, 376. In this paper, Professor Madai argues that, between 1988 and 1990 no capital punishment was imposed—due to a moratorium—and later, in 1990, the Constitutional Court of Hungary abolished any and all provisions on the death penalty in Hungary, because it found the most severe sanction unconstitutional. However, some Hungarians have argued for the reintroduction of the death penalty in Hungary because they think that the death penalty would deter some potential murderers from committing their crimes and it is cheaper than life imprisonment. See also, ZOLTANT. J. Toth, The Capital Punishment Controversy in Hungary: Frogments on the Issues of Deterrent Effect and Wrongful Convictions, European Journal of Crime, Criminal Law and Criminal Justice, 2013, Vol. 21, Issue. 1, 39.

  117. 117.

    Constitution of the Republic of Belarus of 1994 with Amendments through 2004, Article 24, available at:  https://www.constituteproject.org/constitution/Belarus_2004.pdf (Last visited: January 20th, 2024).

  118. 118.

    The Criminal Code of the Republic of Belarus No. 275-З of 09.07.1999 (as amended by No. 60-З of 12.07.2013) (Уголовный кодекс Республики Беларусь № 275-З от 09.07.1999 г. (в редакции № 60-З от 12.07.2013 г.)), Article 59.

  119. 119.

    Ibid.

  120. 120.

    See Amnesty International Global Report, Death Sentences and Executions 2016, Index: ACT 50/5740/2017, April 2017.

  121. 121.

    See Amnesty International Global Report, Death Sentences and Executions 2015, Index: ACT 50/3487/2016.

  122. 122.

    See Amnesty International Global Report, Death Sentences and Executions 2014, Index: ACT 50/001/2015.

  123. 123.

    EU Lines to Take on the Policy of the Council of Europe in Relation to Death Penalty, (Strasbourg, 05/04/2017), above no. 320.

  124. 124.

    BEHRMANN Christian and YORKE Jon, The European Union and Abolition of the Death Penalty, Pace International Law Review Online Companion, 2013, Vol. 4, No. 1, 32.

  125. 125.

    European MPs Unconcerned about the Real Situation in Belarus, available at:  http://law.by/news/news/2012/february/18067/?sphrase_id=156708 (Last visited: January 20th, 2024).

  126. 126.

    Ibid.

  127. 127.

    Rybakov: Death Penalty is not Prohibited by International Law, available at:  http://law.by/news/news/2016/march/16502/?sphrase_id=156760 (Last visited: May 4, 2017).

  128. 128.

    Ibid.

  129. 129.

    Belarus Parliament Discusses Death Penalty Issues, available at:  http://law.by/news/news/2017/may/24048/?sphrase_id=156760 (Last visited: January 20th, 2024).

  130. 130.

    The Constitution of the Republic of Kazakhstan, Article 15.

  131. 131.

    The Penal Code of the Republic of Kazakhstan, the Code of the Republic of Kazakhstan dated 3 July 2014, No. 226-V of the Law of the Republic of Kazakhstan, Article 40.

  132. 132.

    Ibid, Article 47 (1).

  133. 133.

    Ibid.

  134. 134.

    Ibid, Article 47(1).

  135. 135.

    Ibid, Article 47(2).

  136. 136.

    Amnesty International Global Report, The Death Sentences and Executions 2014, Index: ACT 50/001/2015.

  137. 137.

    See the Criminal Code of the Republic of Kazakhstan No. 167 of July 16, 1997 (as amended up to Law of the Republic of Kazakhstan No. 24-V of June 28, 2012) (с изменениями, внесенными Законом Республики Казахстан № 24-V от 28.06.2012 г), Article 49(2).

  138. 138.

    The Penal Code of the Republic of Kazakhstan, the Code of the Republic of Kazakhstan dated 3 July 2014, No. 226-V of the Law of the Republic of Kazakhstan, Article 47(5).

  139. 139.

    On the Concept of Legal Policy of the Republic of Kazakhstan for the period 2010 to 2020 (Decree of the President of the Republic of Kazakhstan dated 24 August 2009 № 858), available at:  http://sud.gov.kz/eng/content/concept-legal-policy-republic-kazakhstan-period-2010-2020 (Last visited: January 20th, 2024).

  140. 140.

    LIGHT Matthew and KOVALEV Nikolai, Russia, The Death Penalty, and Europe: The Ambiguities of Influence, Post-Soviet Affairs, 2013, Vol. 29, No. 6, 541.

  141. 141.

    Ibid.

  142. 142.

    The Criminal Code of the Russian Federation, No. 63-Fz of June 13, 1996 (with amendments and additions of March 1, 2012), Article 59.

  143. 143.

    See ibid.

  144. 144.

    Amnesty International Global Report, The Death Sentences and Executions 2016, Index: ACT 50/5740/2017.

  145. 145.

    KLEINFELD Joshua, Two Cultures of Punishment, Stanford Law Review, 2016, Vol. 68, Issue. 5, 991.

  146. 146.

    Ibid, 992.

  147. 147.

    Ibid.

  148. 148.

    Ibid.

  149. 149.

    Ibid.

  150. 150.

    MRAE Dave, above no. 272, 3.

  151. 151.

    The Death Penalty Information Center, States with and without the Death Penalty, available at:  https://deathpenaltyinfo.org/states-and-without-death-penalty (Last visited: January 20th, 2024).

  152. 152.

    Ibid.

  153. 153.

    The Death Penalty Information Center, Federal Laws Providing for the Death Penalty, available at:  https://deathpenaltyinfo.org/federal-laws-providing-death-penalty (Last visited: January 20th, 2024).

  154. 154.

    Ibid.

  155. 155.

    For example, destruction of aircraft, motor vehicles, or related facilities resulting in death (18 U.S.C. 32–34), civil rights offenses resulting in death (18 U.S.C. 241,242, 245, 247), death resulting from offenses involving transportation of explosives, destruction of government property, or destruction of property related to foreign or interstate commerce (18 U.S.C. 844(d), (f), (i)), mailing of injurious articles with intent to kill or resulting in death (18 U.S.C. 1716), assassination or kidnapping resulting in the death of the President or Vice President (18 U.S.C. 1751[by cross-reference to 18 U.S.C. 1111]), willful wrecking of a train resulting in death (18 U.S.C. 1992), death resulting from aircraft hijacking (49 U.S.C. 1472–1473). See ibid.

  156. 156.

    Ibid.

  157. 157.

    Death Penalty for Offenses other than Murder, available at:  https://deathpenaltyinfo.org/death-penalty-offenses-other-murder (Last visited: January 20th, 2024).

  158. 158.

    Crimes Punishable by the Death Penalty, available at:  https://deathpenaltyinfo.org/crimes-punishable-death-penalty#BJS (Last visited May 16, 2017). See also the Bureau of Justice Statistics, Capital Punishment, 2012-Statistical Tables, available at:  https://www.bjs.gov/content/pub/pdf/cp12st.pdf (Last visited: January 20th, 2024).

  159. 159.

    Bureau of Justice Statistics, Capital Punishment, 2014–2015-Statistical Brief, available at:  https://www.bjs.gov/index.cfm?ty=pbdetail&iid=5908 (Last visited: January 20th, 2024).

  160. 160.

    DREHLE David Von, above no. 254.

  161. 161.

    Regarding this, the author said that “the American death-penalty system is so slow, inconsistent and inefficient that it costs far more than the life-without-parole alternative”. Ibid. Some scholars have also argued that, “the extraordinary rise in capital costs is a very recent phenomenon, and likely a permanent one.” See STEIKER Jordan M., The American Death Penalty: Constitutional Regulation as the Distinctive Feature of American Exceptionalism, University of Miami Law Review, 2013, Vol. 67, No. 2, 351.

  162. 162.

    DREHLE David Von, above no. 254.

  163. 163.

    States with and without the Death Penalty, available at:  https://deathpenaltyinfo.org/states-and-without-death-penalty (January 20th, 2024).

  164. 164.

    Ibid.

  165. 165.

    NELLIS Ashley, Tinkering with Life: A Look at the Inappropriateness of Life without Parole as an Alternative to the Death Penalty, University of Miami Law Review, 2013, Vol. 67, Issue. 2, 440.

  166. 166.

    DREHLE David Von, above no. 254.

  167. 167.

    Gallup Poll: Support for the Death Penalty at Lowest Level since 1972, available at:  https://deathpenaltyinfo.org/node/6589 (Last visited: January 20th, 2024).

  168. 168.

    See Gallup, Death Penalty, available at:  http://www.gallup.com/poll/1606/death-penalty.aspx (Last visited: January 20th, 2024).

  169. 169.

    Life without Parole, available at: Death Penalty Information Center  https://deathpenaltyinfo.org/life-without-parole (Last visited: January 20th, 2024).

  170. 170.

    See Gallup, Death Penalty, available at:  http://www.gallup.com/poll/1606/death-penalty.aspx (Last visited: January 20th, 2024).

  171. 171.

    STEIKER Jordan M., above no. 369, 346.

  172. 172.

    NELLIS Ashley, above no. 373, 445.

  173. 173.

    BERRY William W. III, Life-with-Hope Sentencing: The Argument for Replacing Life-without-Parole Sentences with Presumptive Life Sentences, Ohio State Law Journal, 2015, Vol. 76, No. 5, 1053.

  174. 174.

    GOTTSCHALK Marie, No Way out? Life Sentences and the Politics of Penal Reform, Life Without Parole: America’s New Death Penalty? Edited by OGLETREE Charles J. and SARAT Austin, NYU Press, New York, 2012, 267.

  175. 175.

    For example, NELLIS Ashley argues in her paper that it is an inappropriate alternative to the death penalty. See NELLIS Ashley, above no. 373, 454; Mare Gottschalk refers to it as the “other death penalty”. See GOTTSCHALK Marie, above no. 368, 267; life imprisonment without parole “accurately reflects society’s disdain for the taking of human life.” See WRIGHT Julian H., Life-without Parole: An Alternative to Death or Not Much of A Life at All, Vanderbilt Law Review, 1990, Vol. 43, 567; “so whether life imprisonment without parole is the head of the snake or its tail, there has never been a greater need to grapple with this crucial subject. To ignore it is to be silent about the new death penalty lurking in the shadows.” See OGLETREE Charles J., Jr. and SARAT Austin, Lives on the Line: From Capital Punishment to Life without Parole, Life Without Parole: America’s New Death Penalty? Edited by OGLETREE Charles J. and SARAT Austin, NYU Press, New York, 2012, 21; “This eternal banishment (life imprisonment without parole) means that the offender must simply wait to die; a life imprisonment without parole is worse than a death sentence as death sentences at least mark an anticipated end to suffering.” See BERRY William W. III, above no. 381, 1054.

  176. 176.

    STEIKEI Jordan M., above no. 369, 346.

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Huang, G. (2024). The Death Penalty and Its Reforms in China and Other Countries. In: On the Alternative Punishment to the Death Penalty in China. Springer, Singapore. https://doi.org/10.1007/978-981-97-1627-2_3

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