Capital punishment in China: A populist instrument of social governance

Introduction

The use of capital punishment in the People’s Republic of China has garnered worldwide attention, not least because China has topped the list of pro-death penalty states with the highest number of executions, but also due to the secrecy surrounding the administration of capital punishment in this jurisdiction (Amnesty International, 2012). Significantly, the reliance on capital punishment in contemporary China has, to a large extent, been politically motivated. As Johnson and Zimring (2009: 269) have argued, the Chinese capital punishment regime is ‘political at its core’. This article sets out to explore the changing meaning of the use of capital punishment, the conflicts, compromises and corroborations between the general public and the state authorities, and their impact on the penal policy of China at various points in its history. By tracing China’s use of capital punishment as an instrument of governance and a form of populist administration of justice over the past six decades, this article suggests that China’s use of capital punishment and the associated populist ethos are essentially products of deeper socio-political tensions.

In existing criminological literature, the concept of ‘popular justice’ has been broadly defined to include a wide array of informal, non-professional and non-bureaucratic penal practices, as well as rituals and decision-making processes initiated or sponsored by the state. It can also refer to mass-line practices in revolutionary socialist societies or grassroots populist forums in capitalist welfare states (Merry and Milner, 1993: 31–32; Vogler, 2005: 197).

In a much narrower connotation, the term ‘popular justice’ in this article is used to represent a governing strategy extending state authority and ideological force downward, to penal fields previously unregulated by state power. Yet, it continues to influence the administration of capital punishment and penal affairs in China.

As Garland (2005: 357) reminds us, capital punishment policies are produced by political forces at particular historical junctures. A full understanding of the Chinese capital punishment regime, and the populist pressure surrounding it, needs to be carefully situated within the fast-changing socio-political setting. This article roughly divides Chinese contemporary penal history into three stages—the Maoist era (1949–late 1970s), the Deng-Jiang era (late 1970s–early 2000s) and the most recent period under the Hu-Wen administration (early 2000s–2012), in order to study variations in the general patterns of capital punishment policies and associated populist mechanisms over time.

China’s capital punishment regime has served a distinctly political function for over half a century: to reconfirm the political legitimacy of the Party and to strengthen the political power of the state. However, the functions of the regime have shifted over time. It served as a tool of political repression in the Maoist era and a device to fight crime in Deng-Jiang’s era. State-orchestrated popular justice ethos permeated China’s penal system during these periods. Recent years have seen a rise of populist pressures from below on capital punishment policies. These shifts in the variety and mechanisms of populist ethos is part and parcel of a broader realignment of penal ideology and power in response to deeper social, cultural and political transformations over six decades.

Phase one: capital punishment as a tool of political repression and winning the heart of the masses

Under Mao Zedong, capital punishment was deployed as a populist tool for class struggle, political repression and ideological control (Johnson and Zimring, 2009: 257–262). Mass trials and sentencing rallies in pre-1949 Communist border regions aroused popular sentiment (Griffin, 1976; Leng, 1967), while justice forums after state making, continued to re-educate the masses into socialist legality and articulating the power of the new revolutionary regime. In this period, the extensive use of capital punishment helped reshape post-revolutionary social and political order.

The most notable example of the Maoist approach to justice can be found in the ‘Ma Xiwu Mode of Adjudication’ ¹ which originated in the Communist Shan-Gan-Ning Border Region. Ma promoted the participation of lay judges (people’s assessors) within trials, encouraged cases to be handled in circuit tribunals instead of courtrooms and encouraged the active, direct involvement of local people in the judicial process (Ma, 1959; Palmer, 2007). Such a strategy favoured an informal, non-bureaucratic approach to the administration of justice. It promoted the capital trial as a vehicle for political propaganda and mass ‘education’ to strengthen public confidence in the new communist regime. In other words, popular justice became the prevailing mode of justice administration successful in mobilizing public participation in, and support for, the ruling regime, popular justice in Ma’s (1959: 39) own words was ‘the Party’s powerful and tamed instrument’.

As penalties became harsher and capital punishment used more extensively popular justice became further entrenched. The peak of executions in Mao’s era—the Suppression of the Counter-revolutionaries (1950–1951)—was accompanied by an extreme display of popular justice. A brief review of the People’s Daily—the newspaper which remains the mouthpiece of the Party—between October 1950 and July 1951, reveals over 25 reports documenting spectacular mass trials, sentencing rallies and public executions across the country. Over 30,000 people attended an ‘accusation rally’ held at a sports stadium in Shenyang while approximately 1.12 million people listened to its live radio broadcast. Another 30,000 participated in an ‘accusation rally’ in Guangzhou, while over 70,000 people listened to its radio broadcast; and over 10,000 people attended a similar sentencing rally in Shanghai, while nearly 3 million listened to the radio broadcast (Reporter, 1951a, 1951b).

Each of these state-run news reports included reference to emotionally laden stories of the ‘boiling anger’ of the people against counter-revolutionaries, and their ‘deep gratitude’ towards the Government for taking revenge on their behalf. The masses were, reportedly, roused by the complaints and the ‘blood and tears’ of the victims; death sentences were meted out ‘according to the strong demands of the masses’; convictions were ‘greeted with the thunder of applause’ and the spontaneous chanting of slogans such as ‘Long live Chairman Mao!’ According to the mainstream media, which allegedly ‘spoke for the people’, the grassroots populist pressures for revenge initiated and further fuelled state-sanctioned harsh penalties, although further evidence gleaned from archival research suggests that the state did much more than passively respond to the demands of the masses.

During the initial stage of the Campaign to Suppress Counter-revolutionaries, populist instruments such as sentencing rallies and capital sanctions were rarely used. However, in late 1950 at least four editorials in the People’s Daily warned about public security organs, courts and procuratorates at lower levels, without providing any statistical or factual support for its claim that the masses were ‘unsatisfied’ with the Party’s ‘excessively lenient’ penal policy towards counter-revolutionaries (Editorial, 1950a, (1950b, (1950c, (1950d). The State Council soon issued a directive explicitly instructing penal agencies that ‘all offenders [who] committed counter-revolutionary activities after the state-making must be punished’ (State Council of the Central People’s Government, 1950: 2). Top political leaders immediately voiced their support in the People’s Daily for this request for harsh penalties (Bo, 1950; Peng, 1951), which appeared alongside news reports advertising forthcoming political campaigns to combat ‘right-leaning conservatism’ within political as well as judicial circles.

It therefore appears that the demand for cracking down on the so-called ‘evil culprits’ came from the highest echelons of the political leadership, rather than from the grassroots. Popular justice at this time was clearly marked by strong orchestration, mobilization or at least encouragement by the state of popular hatred against the counter-revolutionaries. In response to the instructions ‘from the top’ to toughen up penal policies, local authorities began to mobilize the masses—initially reluctant to ‘accuse counter-revolutionaries’—to identify their fellow workers as nationalist ‘secret agents’ (Zhao, 1951). Towards the end of the Campaign to Suppress Counter-revolutionaries, the masses progressed from co-operating with the legal authorities in collecting evidence, to participating directly in trial procedures such as convictions and sentencing.

In Chongqing, prosecutors submitted criminal case files to local residents for discussion and meted out capital punishment based on their opinions. At the peak of this mode of ‘democratic’ penal decision making, both the victims’ families and the defendants’ families expressed their ‘extreme satisfaction’ with the outcomes of adjudications made in the name of the people. A defendant’s wife reportedly stated: ‘I belong to the people; he is a counter-revolutionary; I will exercise dictatorship over him!’ (Reporter, 1951c: 1). At this time the intuitions and emotive force of the mobilized masses were believed to be more ‘correct’ and ‘reasonable’ than the rational judgement of legally trained professionals. Cases were frequently tried and sentenced according to lay persons’ moral and ‘common-sense’ perceptions of right and wrong. State-sponsored popular justice further reinforced arbitrary and excessive use of capital punishment. The Campaign to Suppress Counter-revolutionaries was no doubt one of the bloodiest chapters in China’s penal history (Zhang, 2008), and several years later, Premier Zhou Enlai acknowledged that as many as 830,000 ‘counter-revolutionaries’ had been condemned between 1947 and 1954 (Snow, 1970: 346).

The people’s procuratorates in China are legal organs mainly responsible for public prosecution on behalf of the state and investigation of certain criminal cases according to law. Notwithstanding his occasional reminder that capital punishment should be used with restraint (Mao, 1956: 299–300), Mao Zedong repeatedly proclaimed that ‘it was absolutely right’ (Mao, 1956: 298) and ‘necessary’ (Mao, 1956: 298, 1957: 397) to execute counter-revolutionaries. Indeed, as a ‘fervent partisan for capital punishment’ (Zhang, 2008: 118), Mao (1949: 418) viewed it simply as a political ‘instrument for the oppression of antagonistic classes’. Central to Mao’s politicized mass-line ² penal thinking lay a ‘people–enemy’ dichotomy, which was the basis of ‘all methods of social control’ (Lubman, 1999: 42). The ‘enemy’—the minority who were identified as counter-revolutionaries by the regime—were dispensable and subject to heavy punishments including the death penalty. The majority—the ‘people’, if they committed minor wrongdoings, could be treated with education and persuasion.

Popular justice feeds on division and contradiction, separating the population into a ‘good’ majority and an ‘evil’ minority and purposefully creating contradictions between the two. Punishing the minority class enemies thus becomes a justified rebellion against the ‘old’ and corrupt bourgeois criminal justice machinery, which had long been tilted in favour of the privileged minority. In this context, mechanisms of popular justice served to reclaim penal as well as political power in a post-revolutionary socialist society. This realignment of penal power saw the triumph of the majoritarian revolutionaries and their aspirations of justice and security over the liberty and rights of criminals.

Politicians supported popular justice practices and policies, to consolidate penal power and maintain political as well as ideological control through state-sanctioned violence. The practices and rituals surrounding public executions revealed, and also fuelled, the state-instigated anger of the grassroots ‘people’ against their ‘enemies’. The Chinese masses were encouraged to turn their hatred into demands for violence, revenge and blood, while state-monitored media outlets provided the voices of these morally outraged masses with unprecedented direct airing. On the surface at least, the Maoist popular justice strategy seemed to be a success; harsh penal policies and populist ideologies appeared to secure overwhelming public trust in the new regime (Glover, 1999: 292; Tu, 1996: 164).

The Campaign to Suppress Counter-revolutionaries was not the only instance of Maoist radical mass-line penal policy. During the decade-long Cultural Revolution (1966–1976)—often described as the ‘most dramatic application of mass-line since 1949’—Mao and his followers encouraged, endorsed and tolerated fanatical crowd violence against their political opponents (Leng, 1967: 154–157), in the name of and with the aid of the people. In doing so, they won the hearts of the people, while eradicating potential threats to Mao’s dictatorship. Radical popular justice during the Cultural Revolution gave birth to an anarchical refusal of judicial apparatus: legal institutions including courts, procuratorates and the police were completely abandoned. Extrajudicial killings, rather than legal executions, were the primary causes of the deaths of millions of Chinese. ³ As before, Maoist radical popular justice in this era involved a strong element of political manipulation. However, this observation is subject to an important qualification: the populist taking of lives throughout the Cultural Revolution was not entirely within the political purview of Mao and his followers to manipulate as they pleased. As Strauss (2002: 95–98) and Tu (1996) have argued, without the willingness and passion of the masses.

Phase two: capital punishment as a tool for crime control

In the post-Mao reform era, China has pursued a path of ‘socialist modernization’, characterized by an uneasy marriage between economic liberalization and authoritarian governance (Shirk, 1993; Yang, 2010: 449–467). Swift economic and social changes have resulted in new social problems, ranging from difficulties in policing an increasingly heterogeneous society to a massive increase in rural–urban migration. Among other factors, the authorities’ fear of a rapid rise in crime rates had the most significant impact on the periodic toughening up of capital punishment policies throughout the Deng-Jiang era (Dutton, 1992; Liu and Messner, 2001).

From extremely low crime rates in Mao’s China—when ‘doors were unbolted at night and no-one pocketed anything found on the road’ (Bakken, 1993: 29)—to the early 1980s when female workers dared not walk alone at night (Editor, 1988), the upsurge in the level and categories of crime played a role in generating political and public support for harsher penal punishments. Although crime rates in China at the beginning of the reform era remained relatively low in comparison with other countries worldwide (Bakken, 1993; Liang, 2005), the sudden increase was perceived as a threat to the party-state’s ideology, legitimacy and social order (Bakken, 1993; Leng and Chiu, 1985: 132). After initial unsuccessful attempts to solve the fundamental social problems causing crime, the authorities assumed that if the use of harsh penalties, and capital punishment in particular, were increased, crime rates would drop.

Punitive ‘Strike Hard (yanda) Campaigns’ (Tanner, 1999; Trevaskes, 2007: 81–144) have thus became a recurring theme in penal policies during the past three decades, accompanied by cyclical spikes in the use of state-sanctioned executions. The first nationwide Strike Hard Campaign (1983–1987) resulted only in a temporary drop in crime rates (Tanner, 1999: 107), and later campaigns proved to have similar patterns of impact (Bakken, 2011: 42). Incapable of producing sustainable, long-lasting effects, instead, crackdowns on crime were routinely utilized as a short-term technique for crime control (Bakken, 2005: 178–179). Since the launch of the first campaign in 1983, there has been at least one nationwide campaign, or a specified campaign targeting one or more categories of crimes, each year. These anti-crime activities have taken on an institutional form and have had a persistent influence on capital punishment law and practices.

As a result, capital punishment continued to occupy a central place within state penal affairs. In less than two decades of campaign-style crime control, the number of capital offences soared from 28, as described in the 1979 Criminal Law, to 74 in 1995. ⁴ Chinese scholars have described this dramatic increase as the most ‘rapid legislative expansion of capital offences’ (Chen, 2005: 520). Meanwhile, a relaxation in the judicial review procedure in capital cases has contributed to a surge in swift and arbitrary executions ⁵ (Chen, 2005: 521; Tanner, 1999: 73).

From Mao’s obsession with mass-line campaigns to the new emphasis on social order and stability in the Deng-Jiang era, capital punishment shifted from being a tool of class struggle to a means of deterrence. Yet populist ideology, rituals and rhetoric associated with the use of capital punishment remained. A popular slogan in the 1980s—that the primary task of China’s penal law was to ‘suppress the enemies and protect the people’ (Clarke and James, 1996)—was a faithful continuation of Mao’s ‘people–enemy’ dichotomy. In fact, Deng Xiaoping was determined to launch Hard Strike Campaigns largely because he believed that ‘rapid rises in crime [made us] lose the support of the people’ (Liu, 1992: 4). Two months into the 1983 campaign, he concluded that ‘[the campaign] won warm support of the masses … The masses are only concerned that [the offenders] are punished too leniently’ (Liu, 1992: 5–7). It seems that, although the targets of capital punishment changed from political offenders to ordinary criminals, its political purpose of strengthening the regime’s legitimacy and authority remained unaltered.

Public trials and large-scale sentencing rallies (Davis, 1987; Tanner, 1999: 136–137) were held in factories, local communities, schools and rural areas (Chen, 1998: 42) during all the Hard Strike Campaigns. Photographs of prisoners on trial, being paraded through the streets, and even being executed, were commonly displayed in school yards in urban and rural areas during the 1983 Campaign in order to ‘educate’ young people (Tao, 2010). On some occasions, ‘public indignation’ (min fen) replaced legal rules to become a licence to sentence someone to death. ‘Executing [prisoners] to assuage the people’s anger’ (bu sha bu zu yi ping min fen) served as the most popular and justifiable logic for sanctioning executions (Wang, 2004: 179). The objectives of ‘propagandizing the masses, mobilizing the masses and bolstering the masses up to expose criminal conducts to the public security organs’, as expressed by China’s then Premier Li Peng, were downright political: to ‘boost the confidence of the masses in the Party and strengthen their flesh-and-blood connection with the Party’ (Fu, 2001: 1).

Despite the cyclical upswing of popular justice practices throughout the Deng-Jiang era, there was some evidence that another contradictory trend—systemic regularization and institutionalization of the penal system—started to gain momentum in this time. Towards the end of the 1970s, in a departure from Maoist legal nihilism (Dutton, 2005; Keller, 1994: 714), the Chinese state launched a series of reform attempts to ‘govern the country with law’. Extensive legal institutions were built and developed, a flood of legislation, administrative regulations and local enactments were promulgated, millions of judicial cases annually were heard by courts nationwide, legal education for students and legal training for judges thrived and there was an emerging general consciousness of using law and legal institutions to resolve disputes and uphold personal rights (Lubman, 1999: 3; Potter, 2004: 466). As a result, capital punishment policies and practices in the era of Deng Xiaoping stood in contrast with Mao’s years as the once fuzzy boundary between judicial and extrajudicial killings became clear and extrajudicial executions wanted (Johnson and Zimring, 2009: 263).

The rise of a state judicial apparatus and legal professionalism inevitably weakens, if not subverts, the utility and influence of popular justice. The penal regime was gradually depoliticized in comparison to the Maoist era, and although political offences accounted for the majority of the capital offences in the 1979 Criminal Law (Macbean, 2008: 209; Tanner, 1999: 139), they were rarely used (Zhao and Xiao, 1998: 2). Maoist popular justice, which translated the revolutionary masses’ desire for retribution into penal processes, could no longer achieve its full significance in the new social and political conditions, which were so fundamentally different from those of the proletarian revolution. The post-Mao process of legal institutionalization gave birth to a formal state judicial apparatus, which by its nature requires detachment, neutrality and professionalism, in contrast to the intuitive moral ideologies associated with ‘acts of justice by the people’ (Foucault, 1980). With this countervailing force of legal bureaucratization and institutionalization, the power of popular justice during the Hard Strike Campaigns gradually declined in both scale and scope.

Phase three: governing with capital punishment in a ‘harmonious society’

The tension between market forces and the authoritarian power structure, which was brought about by the post-Mao reforms, has continued to produce wide-ranging social problems after the turn of the millennium, including widening economic inequality, and greater political and social instability (Bian, 2002; Lin et al., 2002). China’s Gini coefficient, a statistical measurement of income inequality, which was 0.291 at the onset of the market reform in 1981, reached 0.425 in 2005 (World Bank, 2012). Although corruption is subject to the harshest penalty, it has nevertheless grown more entrenched within the social fabric (Gong, 2002); among party cadres, corruption has become the rule rather than exception (Teng, 2011). The ‘harmonious society’ rhetoric (Holbig, 2006)—the defining feature of Hu Jintao and Wen Jiabao’s policy discourse—underlined the state authorities’ overriding concerns that social conflicts could easily spiral out of control. Indeed, Chinese society today is far from harmonious. As Huang (2012: 729–730) has argued, the growing popular resentment against official corruption and widespread mass protests across the country reveal ‘a government legitimacy crisis’.

The weakening of state control over some segments of social life and the strengthening of civil society led to reconfigurations of both political and penal power. The ‘harmonious society’ rhetoric signalled voluntary changes made by the party-state towards softer, less-repressive governing approaches in the field of criminal justice. Old crime control techniques were seen as out-dated and counter-productive in a ‘harmonious’ society. After the turn of the millennium, periodic campaign-style crackdowns gradually lost their appeal. As Trevaskes (2010: 356) has argued, a subtle shift in ‘the political culture of punishment’ towards a limited degree of penal moderation took place.

Penal moderation has first extended to the area of capital punishment. In particular, the transition in penal thinking enabled reform-minded politicians, legal practitioners and scholars to design and implement a series of capital punishment reform initiatives, with the most significant being the recall of the review power in capital cases by the SPC (the Supreme People’s Court) in January 2007 (Johnson and Zimring, 2009: 270–282). The reforms aimed at restricting arbitrary and excessive use of state-sanctioned killings was thus a political response to widespread public dissatisfaction with the dysfunctional, error-prone penal machinery (Trevaskes, 2010: 355). Since 2000, an array of capital cases involving miscarriages of justice, which were widely reported by the mass media including online sources (Chen, 2005: 525; Scott, 2010: 72–73), sparked nationwide public criticisms and helped to convince the authorities of the necessity for reform.

Importantly, further popularization of the internet as a new mass communication technology has contributed to these transformations in penal ideologies and techniques. Although subject to state censorship (Xiao, 2011: 49–52), cyberspace has provided a forum for public debate that is impossible via the dogma and propaganda of traditional media, particularly on politically sensitive or controversial matters (Goldman, 2005: 186–200; Yang, 2009); even previously forbidden topics on penal matters have now become a matter of rigorous public and political debate. In fact, procedures and processes surrounding the use of capital punishment—in particular the adjudication of individual capital cases and the legislative acts of amending the scope of capital offence in criminal law—have become focuses of popular discourses on penal affairs (Hood, 2009).

Meanwhile, flexible, soft and responsive penal policies adopted by the party-state made the Chinese capital punishment regime even more vulnerable to populist influences. From the Maoist mass-line tribunals to the Deng-Jiang Strike Hard Campaigns, politicians actively constructed the ‘public will’ according to political expediencies. Through top–down propaganda carried out by the state-run media, the masses were made to believe that the so-called ‘public will’ was a genuine expression of their needs and desires. ‘Popular justice’ arrangements turned out to be an instrument to implement already-established penal policies made by political leaders. The state-initiated exercise of arbitrary and excessive penal power was therefore concealed under the mask of informal and non-professional rhetoric, rituals and practices.

As state–society relationships changed during the reform era, however, the ruling party-state gradually lost its monopoly over the discourse and policies on capital punishment and had to share its authority and power with the public at large. Political and legal institutions began to seek public support by aligning the outcomes of their decisions with the perceptions of what was believed to be the prevailing public sentiments and expectations emerging from the grassroots level. These public aspirations, in contrast to the ‘public will’ created by the state in the old mode of popular justice, were unlikely to be exclusively the product of political manipulation as they are normally collective or individual protests against the ruling regime or acts of grievance seeking. This latter form of populist mechanism, which reflects a reconfiguration of the power to punish, is fundamentally different from the scenario of state-planned ‘popular justice’. To a certain extent, it reflects the pressures from below and the desires of individuals.

Ironically, the process of top–down, elite-led readjustment of capital punishment law and policies, after initially gaining public support, met with considerable popular resistance as it developed into a broader reform commitment. In 2010, the draft Eighth Amendment to the Criminal Law proposed the removal of 13 economy-related, non-violent offences from the scope of capital offences and the exclusion of the elderly (those above the age of 75) from the reach of capital punishment, despite the fact that the elderly had rarely been subject to executions under judicial practice. ⁶ The draft Amendment received wide support from legal professionals and was given the go-ahead from the top Party leadership. However, the proposal to exclude the elderly from its remit received overwhelming public criticism and scepticism (Zhao, 2011) as some were worried that the amendment would encourage bureaucrats above the age of 75 to act corruptly, while others were concerned with the prospect that elderly people who committed heinous crimes would escape the ultimate punishment (Zheng, 2010).

The state authorities responded to and conditionally accommodated the storm of public opinion. Consequently, the final wording of Article 3 of the Eighth Amendment, which was passed in early 2011, introduced a clause stating that people above the age of 75 are in principle not death-eligible, but are nevertheless subject to immediate execution if convicted of ‘committing murder with exceptionally cruel methods’ (National People’s Congress, 2011).

This example illustrates that, as no precise statistics for capital executions and sentencing are publicly available in China, public debate regarding capital punishment has often been out of touch with reality. In this case, the public were unaware that the elderly were rarely subject to the death penalty, even before the proposal was drafted. However, the fact that the authorities, fully aware of this, pushed reformers to compromise once again confirmed the populist power over penal affairs in an authoritarian socialist polity. In the context of Chinese society, politicians lack the will or capacity to resist public pressure. The prevailing collective sentiment, even if based on false information, is extremely significant in shaping penal, and ultimately political, decision making.

Equally significant was the debate surrounding the removal of corruption offences from capital punishment. Crimes involving corruption and bribery were not, in fact, on the proposed abolition list of the draft Eighth Amendment, but rumours were spread through misleading news reports based on leaked minutes of a closed session of the Legislative Affairs Commission of the Standing Committee of the National People’s Congress (LACSCNPC). With the false information circulating that the state legislature planned to remove corruption and the taking of bribes from the list of capital offences, heated public criticism was sparked across the country, with people complaining that corrupt officials would be freed from the fetters of state law (Mu, 2010). Once again, the state authorities quickly complied with public sentiment. A member of the LACSCNPC assured the public, mostly internet users, during an ‘online press conference’ that abolishing capital punishment for bribery and corruption had never been considered by the reformers and that the authorities would continue to ‘harshly punish’ those who committed such crimes. The state-run Xinhua Daily Telegraph confirmed his speech as being ‘the most authoritative’ voice of Chinese state legislature (Wu, 2010: 001).

Greater resonance between the authorities and the public, or those who claim to speak on behalf of the public, can also be observed in the adjudication of individual, high-profile capital cases in recent years. It has become increasingly common for China’s courts to deliver justice to satisfy the demands of litigants and to respond to public sentiments (Liebman, 2011b), particularly given that the Chinese judicial authorities have insufficient judicial autonomy or authority to resist external pressures from either the party-state or the general public. The first example to be discussed here involves a 21-year-old defendant named Yao Jiaxin (Watts, 2011).

Yao knocked a peasant woman off her bicycle and later stabbed her to death because of her (potentially endless) demands for compensation. His case caused public outrage, following inaccurate statements by the victim’s counsel that Yao’s father was a powerful, high-ranking official serving in the Communist Party of China’s (CPC), also known as the Chinese Communist Party (CCP) military, causing the media to portray him as a ‘rich second generation’. ⁷ Based on these rumours concerning Yao’s family background, the public vented their outrage against corruption and inequality onto this defendant, declaring that ‘this is a war between the grass-root masses and the elites, let’s drown them with our voices!’ (Niu, 2011: A23).

Yao was seen as a ‘common enemy’ of the ordinary people who had suffered from injustice and inequality in an increasingly polarized society. These emotions united the public in outrage against a representative of the much-hated dignitaries, culminating in a collective populist demand that the defendant must be executed. Internet users expressed their emotional arousal with a ‘carnivalesque’ (Herold and Marolt, 2011) outburst of passion, as if, with the defendant’s execution, the anxiety, tension and grievance of their everyday lives could be released. The power of public sentiments was once again demonstrated, and the judicial decision-makers, even while knowing perfectly well that the media had misrepresented the facts of this case, were unable and unwilling to resist the pressure of the populist demand.

A second case ⁸ involved a murder defendant, Li Changkui, who raped an 18-year-old girl and killed her and her three-year-old brother. The case attracted nationwide media and public attention due to an appeal decision. After the first court sentenced Li to immediate execution, a judge in the Yunnan provincial court amended this to a suspended death sentence on the grounds that Li voluntarily surrendered himself to the authorities (Qiu, 2011), which is a discretionary mitigating circumstance under Chinese criminal law (article 67). The outraged family of the victims posted the facts of the case, together with the appeal decision, on one of China’s largest social media platforms, Tencent Weibo, arousing much sympathy and support for their cause. Public indignation swelled and in approximately two months, 270,000 messages regarding Li’s case appeared on Tencent Weibo and 98 per cent of the 23,000 participants in an online survey believed Li should be executed. The case was retried by the same provincial court and, under this considerable public pressure, despite the fact that the previous sentencing decision was not erroneous according to law, Li was sentenced to immediate execution in August 2011 (Qiu, 2011).

Rather than being tried by legally established courts, Li was in fact sentenced to death by a ‘court of public opinion’ based on the shared morality of internet users. The institutional and conceptual barrier protecting judicial elites from public scrutiny and criticism, commonly seen in western liberal democracies (Pratt, 2007: 13–15), has never fully existed in China, even following China’s ‘most concerted effort in world history to spawn a legal profession’ (Alford, 2003: 193). The thin layer of insulation between the Chinese judiciary and the rest of society makes it difficult, if not impossible, for the former to resist political or public pressure.

Consequently, the best way for individuals or interest groups to compel the judiciary to tilt towards their preferences is to put pressure on the fragile party-state which views ‘maintenance of stability’ as the top priority (Xie and Shan, 2011). Seeking public and media attention has been proven to be a short-cut to success (Liebman, 2005): when controversial capital verdicts appear to arouse public indignation and threaten social ‘stability and harmony’, the party-state will press the judiciary to bend with the winds of public opinion. Internet-based platforms— Bulletin Board System (BBS) forums, social media, blogs and chat rooms—provide ordinary people, who previously had limited access to political-legal affairs, with convenient yet powerful tools to exert direct pressure for revenge and justice. This is why, in the capital cases cited above, the victims’ families turned to powerful channels of influence such as mass media platforms, rather than seeking judicial remedies.

This pattern of unprincipled accommodation of public demands by the political, judicial and legislative authorities may have already reinforced a populist thirst for retribution and resistance to reform. By May 2011, a mere reiteration of the previous ‘kill less, kill cautiously’ reform policy in the 2010 annual work report of the SPC met with strong public disagreement (Mao, 2011). During Xiao Yang’s presidency of the SPC (1998–2008), a consensus was established that leniency should be chosen when judges face the choice between sentencing capital defendants to immediate executions or lesser punishments; this now seems to have collapsed. Increasingly responsive and submissive to public opinion, the capital punishment laws, practices and bureaucracies are infused with bottom–up popular ethos.

Indeed, capital punishment in China’s current notion of ‘harmonious society’ has acquired new meanings. No longer as an instrument for cracking down on wrongdoers, counter-revolutionaries and criminals alike, it has become a means of satisfying public demands for justice, equality and revenge in an increasingly fragmented society. By unconditionally feeding the public’s demand for revenge and justice, China’s party-state seeks to demonstrate that it has the people on its side, that it truly represents the best interests of the majority populace and that its legitimacy is supported by the people. In this context, accurately measuring public opinion through nationwide public opinion surveys probably seems infeasible and indeed unnecessary ⁹ in the eyes of the party-state, not only because of the political risk involved but also because any survey is unhelpful in predicting the spontaneous, fleeting outbursts of populist sentiment. What matters is not the status of public opinion but the state of the public mood, as well as how to channel the formidable force of the latter in a way which strengthens, rather than harms, political authority.

Matters have been compounded by a return to ideas associated with the Ma Xiwu Mode of Adjudication (Liebman, 2011a). In recent years, for instance, judges in the Henan Provincial Court took off their robes and laid down their gavels, travelling into the countryside to solve local disputes, while lay judges were given the opportunity to be directly involved in trials. The President of the Henan Provincial Court, Zhang Liyong, believed that by bringing in case verdicts that were in tune with the aspirations of the masses, judges could prevent litigants from petitioning (shang fang) higher authorities and disturbing social stability, as well as dispel public distrust of the judiciary (Shen, 2012).

Conclusions

Capital punishment has functioned as a populist instrument of political governance since early Communist regional regimes. The political meanings associated with the use of capital punishment have varied over time with the changing political needs of authoritarian governance. In Mao’s era, it served as a means of eliminating political opposition, while in the Deng-Jiang period it operated as a tool of crime control. In Hu’s ‘harmonious society’, it is an essential instrument for mediating ‘social contradictions’ and upholding public confidence in the Party’s legitimacy. In all three models, China’s resilient capital punishment regime has acted as a buffer between citizens and the state authorities, vindicating the authority of the party-state by providing a safety-valve for social conflicts.

Central to China’s capital punishment apparatus is its populist characteristic. Popular justice in Maoist China was largely, although not entirely, engineered by the state. The drive towards greater economic liberalization, social diversification and political fragmentation in the reform era has made the state less able to influence and manipulate public opinion. Instead, it has become increasingly likely to lose control of non-state-run mass media, especially the internet, and the public sentiments expressed through these vehicles. The state authorities have quickly adapted to these challenges (Gries and Rosen, 2010) and developed new coping strategies. They appear to be willing to yield to oppositional grassroots pressure whenever sentiments are strong enough to pose a threat to the legitimacy and authority of the state: state legislators are forced to amend their draft legislation to vent public dissatisfaction and judges are compelled to align their judicial decisions with the demands of the general public or individual petitioners in high-profile cases.

This strategy of increasing responsiveness to and toleration of public moods and demands mediated through the mass media provides a source of the Party’s legitimacy in today’s contentious politics. By choosing to distort the principles of the rule of law and encroach further into the limited autonomy of the judiciary, the state hopes to reinforce its authority and legitimacy. However, while increasing civic engagement in penal decision-making processes could help to guard against miscarriages of justice and corruption by subjecting the authorities to constant public scrutiny, it has also been detrimental to judicial and legislative efforts to restrain China’s profligate use of capital punishment as a sanction. Clearly, the case study of the changing meaning and use of capital punishment in China raises important questions about the limits and possibilities of populist influence in penal affairs and reforms, the inextricable links between politics and punishment in China’s governance and the regime resilience of the single-party authoritarian state and, ultimately, the wider meaning of ‘justice’ and ‘fairness’ in a deeply divided society.