Eric's Beijing Diary

Got an email from Martin Lewis the other day that got me thinking about the issue of capital punishment:

Eric, You have an absolutely wonderful blog. I bet you could transform it into a book. I enjoy reading it. I don't tell you that enough. I like your question about where you're most at home; that theme could be made into a book. Your review on Mao was interesting. Victors always shape history to spin themselves in the best light. It takes a long time for objectivity to set in if it ever does. I have a question on your view on capital punishment. IT is a question that I have been thinking about for a while. I almost wish I could find the blog that began the reflection. Where does Mercy enter uniformity and fairness? It has been said that justice needs to be tempered with mercy. Currently capital punishment tends to be more focused on men and especially minorities. A uniform application would address it but would the value of mercy be dumped in the process? Mercy without prejudice would be difficult. I do not have an answer to the question and would be interested in your thoughts.

Capital punishment. Hotly debated issue in any society where such debate is allowed. In China, the issue is just never talked about. At least it hasn't been in the past. In all the discussions I have had with Chinese folks about any number of issues, I cannot remember the subject ever coming up. It's changing, though. Amnesty International, which is very critical of China on this issue, has recently commended the growing debate on the death penalty which is developing among Chinese academics.

I am not opposed to capital punishment, but I do not support it lightly. I am concerned that the death penalty in China may be sweeping in people whose cases have been railroaded through the courts without due process. And my criticism of the death penalty is not limited to China. Capital punishment is probably not workable under the American legal system either, because the rules for criminal procedure are so convoluted that the possibility of executing an innocent person are far too high. Recently, the governor of Illinois, who believes in capital punishment, cleared death row, pardoning some, and commuting the sentences of all others. Again, he believes in capital punishment, but the justice system in Illinois (and the rest of the United States) is hopelessly unreliable The risk of executing innocent people was just too great.

Old Testament Israel is often considered a primitive culture, but many do not realize that the rules for criminal procedure in Old Testament Israel were very strict. In a murder trial, lack of a third eye witness was considered a mitigating factor:

"At the mouth of two witnesses, or three witnesses, shall he that is worthy of death be put to death; but at the mouth of one witness he shall not be put to death. (Deuteronomy 17:06)"

So three eye-witnesses are preferred, but you could find someone guilty on the word of two witnesses who agreed on the details. One witness? No way. Had to turn him loose. And false accusation of a crime carried the same penalty as the crime itself. The point is clear. Ecclesiates says that if sentence against evil is not executed speedily, the hearts of men will be set to do evil (8:11). But if we are going to have swift and severe retribution for crime, safeguards for the innocent must be extraordinary.

So what do we come up with when we apply this principle to China? China executes more people than any other country in the world. I don't know how many. Neither does anyone else. It isn't published. True, many death sentences are commuted. But there are still quite a few executions. The problem I have with many so-called "human rights" organizations, is that they try to "fix" the problem by attacking the whole idea of capital punishment, rather than addressing the basic problems with the justice system, thus rendering themselves incapable of fine tuning a system that needs work, but that is not beyond reform.

Let me try to explain it this way: Think of someone you love dearly. If an evil person broke into this loved one's home and hacked him or her to death with an ax, what should be done to this person? I believe the murderer should be executed. Some would call that revenge, but I disagree. Revenge would be having the person hacked to death himself. I do not believe in torture. I would not advocate that the murderer be drawn and quartered, or broken on the wheel. I believe in humane execution. But a man or woman who takes a life should have his or her life taken. This practice in Old Testament Israel made murder a very rare crime. But it is important to emphasize that execution was not a matter of personal vengeance. Here is what the Bible says about the stoning of Achan:

"And Joshua said, Why hast thou troubled us? the LORD shall trouble thee this day. And all Israel stoned him with stones, and burned them with fire, after they had stoned them with stones. And they raised over him a great heap of stones unto this day. So the LORD turned from the fierceness of his anger. Wherefore the name of that place was called, The valley of Achor, unto this day." (Joshua 7:25-6)

Stoning was a brutal, bloody way to die. It was cruel and horrible. But it is important to remember that in stoning Achan, the Israelites were assuaging God's anger, not their own. Execution must never be a means of venting one's own rage. There is a huge difference, morally, between a public hanging and a duel. It is the difference between personal revenge on behalf of one's honor, and just retribution on behalf of society.

In a society where life is trivial and not valued, a crime like murder merits a slap on the wrist. But in a society where life is dear and precious, murder demands the price of life. So if we try to "fix" China by attacking capital punishment per se, we will miss the point, as well as a very important opportunity, because, in fact, there are areas where the legal system in China does need reform, and there is a move by several in positions of authority to do just that. I must emphasize this point--there are many people in positions of responsibility in China who are trying to address the needed reform in the justice system. And the government seems to support the idea of reform, because these individuals are given significant attention in the mainstream media.

The problem in China, as well as in America, is that it is still far too easy for an innocent person to be executed. The main difference between China and America is that in America, an accused person is allowed a vigorous defense, assuming he or she can pay for it. So you can get justice in America, but it's going to cost you. In China, on the other hand, vigorous defense can and certainly has been considered anti-social behavior. Many lawyers have been locked up for defending their clients too aggressively.

The most poignant example of this is a case that was quite widely publicized a year or so ago, where a guy who had been tried and convicted for murdering his wife, was released after she showed up alive. He had been tortured to get a confession. Not only that, but his mother campaigned vigorously for his innocence, and they put her in prison for almost a year! After it was discovered that he could not have killed her (because she was not, in fact, dead) attention focused on the police, and the methods they had used in going after him. One of the police officers in question committed suicide.

Here are a few basic areas where I see a need for reform in the justice system of China--reforms that would need to be in place before capital punishment could be justified.

1. Right to vigorous defense. The client must be given the right to be defended by counsel without fear of reprisal.
   

2. Right to avoid self-incrimination. Not sure what form this would take, exactly, but there must be some means to assure accused persons the right not to be convicted on the basis of their own testimony. This right is critical to justice in a free society. In America, the police are required to tell the people they arrest that they have a right to remain silent. This is based on the assumption that if suspects do not know they have a right at the time they need to exercise it, that is the same as to say that they do not have that right .
   

3. Right to independent judiciary. Some would say that the right to trial by jury is more important, but I don't necessarily agree. Americans are accustomed to a jury system, and it is hard to dispense with it lightly. But I am not absolutely sure that jury trial is needed to ensure justice. But it is absolutely essential that guilt or innocence be based on a finding of fact by a court of law, not by the dictates of a local party chairman.
   

4. Right to face one's accused. This basically comes down to being able to respond freely and openly to the person who is accusing you.
   

5. Right to speedy trial. This right includes the right to freedom from incarceration, unless there is a specific charge for a specific crime. Justice delayed is justice denied.

These rights are considered basic and inalienable in America (except, of course, at Guantanamo). The problem in America, is that the exercise of these rights can be very costly. Good legal help is terribly expensive. Some years ago, there was a popular "lawyer" show called, "Matlock." It is probably in reruns somewhere on the schedule. Ben Matlock's retainer was $100,000. Americans like to boast that accused persons are provided with counsel. But the kind of service provided by a local public defender's office is just not the same as that provided by an accomplished criminal lawyer. So one could ask, "What about Old Testament Israel? Accused persons there didn't have the benefit of high priced lawyers." True. But again, remember that in Old Testament Israel, you didn't need a high dollar lawyer, because the rules of criminal procedure were so strict, and framing the innocent was considered particularly vile. You probably remember the story of Naboth in the Old Testament (1 Kings 21). The wicked king Ahab wanted to buy Naboth's vineyard, but Naboth did not want to sell, because it was part of his family heritage. Jezebel comes in and sees her husband pouting, and she hatches a scheme to have Naboth falsely accused of blaspheming God, so that he would be stoned. After he was dead, she came to Ahab and told him to take the vineyard. Ahab was a wicked king. Probably one of the most wicked in the history of Israel. But when Elijah confronted him, he repented in sackcloth and ashes. Even such a wicked person as Ahab knew that what Jezebel had done was beyond the pale. This value system permeated Jewish thought, making the execution of innocent persons very rare. I can't think of a single other case where an innocent person was railroaded through a kangaroo court, except, of course, for the trial of Christ, which was an outrage. But even there, Jesus had to help them out, because they could not find two people who agreed. (Matthew 26:59-66)

I do not think that China should use America as a model. It would probably be better for China to go back to the basic principles of justice in English Common Law, which, of course, were rooted in the moral principles that originally came from the Torah.

Nobody knows how many executions there are in China. But most observers believe that there are more people executed in China than anywhere in the world. Again, I am not personally opposed to capital punishment. And the fact that there are more executions is not, in itself, prima facie evidence of institutionalized injustice. You would believe that if you believed that capital punishment per se is injust. But this is my primary frustration with those in the West who criticize China. They are so viscerally opposed to any capital punishment, that they render themselves incapable of addressing the issue of reform in any intelligent manner. They are unable to enter the discussion of issues such as rules of evidence, trial by jury, rights of appeal, etc., because they do not believe there can be a just way to implement capital punishment. But these discussions need to be held. And, as I said, the government seems to be open to addressing these issues.