Using sentencing evidence to effectively establish the balanced application of the death penalty in China

The concept and properties of sentencing evidence

Simply put, sentencing evidence denotes the proof that is used for evaluating and determining the sentence, which differs from the conviction evidence, which establishes or disproves the factual elements that fit the definition of criminal conduct (Yang, 2012). The distinction between conviction evidence and sentencing evidence is theoretically based. And no hard and fast line can be drawn between the two types of evidence. Apart from pure sentencing evidence and pure conviction evidence, there is some mixed evidence that relates to both processes (Gu, 2009).

Pure conviction evidence constitutes the basic elements of various crimes, and usually appears in the form of stating the facts of guilt based on the minimum sentencing range. Taking the crime of causing traffic casualties as an example, Article 133 of the China Criminal Law stipulates that:

Whoever violates regulations governing traffic and transportation and thereby causes a serious accident, resulting in serious injuries or deaths or heavy losses of public or private property, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. Whoever runs away from the spot after he has caused a traffic accident or is involved in other especially flagrant circumstances shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; if his escape results in the death of the victim, he shall be sentenced to fixed-term imprisonment of not less than seven years.

In terms of mixed evidence for conviction and sentencing, the above law can still serve as an example. Evidence that the person accused ‘ran away from the spot after he has caused a traffic accident or is involved in other especially flagrant circumstances’ reflects the accused’s guilt in causing traffic accident that has been clearly stipulated by this precise provision, and also involves issues of selecting the levels of sentence and the personal danger evaluation of the accused, etc. This type of proof serves as typical mixed evidence. It often turns up as aggravated circumstances, such as aggravations of results, amounts, identities, details and so on. In addition, it also involves the preparation, attempt and termination of crime as well as the principal criminal, accomplice, coerced offender and instigator in joint crime; along with excessive self-defence and unduly averting danger, etc.

Finally, there is another type of evidence: pure sentencing evidence. This term includes evidence such as surrendering voluntarily surrendering voluntarily, performing meritorious service, confessing truthfully, pleading guilty spontaneously, returning the spoils and compensating actively, obtaining forgiveness from the victims, demonstrating repentance, whether the commitment is the first offence of the juvenile defendant, his personal upbringing background and consistent performance, along with whether a settlement agreement can be reached, etc. These distinctions inform the discussion about sentencing evidence for capital cases in the rest of this paper. The pure conviction evidence and the mixed conviction and sentencing evidence are evaluated in line with conventional criminal litigation rules. The last category of pure sentencing evidence is a completely contrasting concept, which has not received sufficient attention.

In addition, the focuses of sentencing and conviction evidence are not identical either. On the one hand, conviction evidence focuses on the evaluation of various behaviours. On the other hand, sentencing evidence concentrates on the social connections that the guilty defendant has been involved in. In particular, under the guidance of the modern judicial philosophy that promotes restorative justice, the restoration of impaired legal interests and the maintenance of public security have become increasingly stressed. The value of social connection might merely be a marginal consideration in gathering conviction evidence; yet it is a major factor in sentencing. Sentencing evidence usually follows an successful procedure that carries out a multi-faceted evaluation of the personality of the defendant. It also conducts comprehensive assessments with aim of quantifying and correcting the accused’s tendency to commit crimes (Wang, 2010).

Using sentencing evidence to effectively establish the balanced application of the death penalty in China

For a long time, the applicable specifications for the death penalty in China have involved: broad principles such as ‘to kill less and cautiously’; qualifying policies that ‘reserve, strictly discipline and carefully apply death penalty’; a trend toward reducing the number of charges that are eligible for such punishment; and the pilot implementation of a relatively independent sentencing procedure. The nature of such efforts represents either a political gesture to reduce the incidence of the death penalty or an external guarantee for the establishment of the procedure; neither context will enable a balanced application of the death penalty. On 25 December 2006, Xiao Yang, the then chief justice of the Supreme People’s Court, pointed out in his speech at the Criminal Justice Conference of the Supreme People’s Court that, ‘due to the fact that the conditions and standards for the application of death penalty stipulated by law are oversimplified, the scope of legally-prescribed punishment becomes considerably large. Consequently, the standards and measurements that local courts employ in death sentence vary. This situation leads to the highlighted problem of the non-uniform as well as imbalanced application of death penalty. Even for the same crime, the standards for condemning death penalty differ in regions; significant differences exist in offenses such as intentional homicide and injury, robbery and drug related crimes, etc’ (Zhao and Peng, 2012). The uniform standard, therefore, should be the most straightforward and effective way to guarantee the unified application of death penalty. In response to the requirement of the evidence-judging principle, such unified standards need to be centred on evidence.

Using sentencing evidence to establish a balanced application of the death penalty is the best approach. Essentially, sentencing evidence is a substantial element that can be reflected in texts through numbers, written words, patterns and so on. This materiality makes it observable, predictable as well as evaluable. Based on these factors, there is the possibility of formulating a unified set of standards for judicial practice. Once this type of precise and established rule has been applied to individual cases, even in controversial cases, such as the sentence of Li Changkui, the focus may shift towards the rationality of the regulations rather than making courts and the judges the targets of public criticism, and subjecting them to embarrassment when they yield to public opinion. In this way, the legislative and judicial branches can provide an appropriate defence for the death penalty in the face of an indignant public, so that they do not offer irrational responses that lack evidence.

From another perspective, given that the victim is already dead, the state action of soothing public indignation through killing equals indulging the human thirst for barbaric revenge. The indulgence of public vengeful thoughts will merely increase their inhumanity while fostering a stronger desire for revenge. The precision of sentencing standards also serves as an effective method of counselling for the public anger caused by capital cases.

Furthermore, this paper ventures to suggest that the discourse power which sentencing evidence brings to judicial branches might be directed not only to public opinion, but also to stronger state powers. As the saying goes, the death penalty is not merely a matter of law, but also a political issue, and the truth is that even the law is bound up in politics. Any administrative body or individual who attempts to interfere in the decision of a death sentence by neglecting the precise sentencing evidence would, if not being recorded as ‘leading cadres who intervene in judicial activities and butt into specific case processing’ ³ at least have to be pressured by theorists, as well as the public.

The quantity and types of sentencing evidence in intentional homicide cases

In the written judgments of the 40 cases analysed, which involved 69 individuals, 21 distinct sentencing circumstances were identified. Putting these circumstances in descending order, they are: ‘criminal consequences’ (64 accomplished, 4 attempted, and 1 discontinued), ‘causes of crimes’ (69), ‘serious circumstances’ (48), ‘combined punishment for several crimes’ (33), ‘cruel means of crime’ (27), ‘truthful confession’ (13), ‘accomplices’ (12), ‘recidivists’ (7), ‘high social risks’ (6), ‘actively compensating families of victims’ (6), ‘principal criminals’ (5), ‘voluntary surrender’ (4), ‘rendering meritorious services’ (3), ‘usually well behaved’ (3), ‘faults of victims’ (1), ‘forgiveness from victims’ (1), ‘aged under 18 at the time of committing crime’ (1), ‘female defendant pregnant during trial’ (1), ‘staff member of state organisation’ (1), ‘arrested with the assistance of their family’ (1) and ‘arrested without resistance’ (1). Among them all, ranking in the top two places are ‘criminal consequences’ and ‘causes of crimes’. Every written judgment points to these two factors, directly or indirectly. Moreover, within the seven types of evidence that are tied for the last place, whether the accused was arrested without resistance is the least applied. This survey of the cases indicates that it is actually the sentencing evidence that written judgments hardly pay attention to. On the other hand, the circumstances of ‘faults of victims’, ‘forgiveness from victims’, ‘aged under 18 at the time of committing crime’, ‘female defendant pregnant during trial’, ‘staff member of state organisation’;, and ‘arrested with the assistance of their family’ belong to the category of evidence with low-frequency objective existence (see Figure 1). In total, through these 40 cases and the 69 individuals involved, 312 pieces of sentencing evidence were documented. In other words, only approximately four and a half items of sentencing evidence are found in the judgment of each defendant. In comparison with the wide variety of sentencing evidence mentioned above, the number that have been recorded in written judgments is rather small. Such shortage might have been caused by the fact that little sentencing evidence was involved in the trials, or the inadequacy of the reasoning in the written judgment. However, both of these reasons reflect the fact that the criminal justice system in China places insufficient emphasis on sentencing evidence in capital cases.

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Figure 1.

Distribution of each sentencing evidence application.

In addition, in line with the classification of sentencing evidence introduced above, ‘criminal consequences’, ‘cause of crimes’, ‘serious circumstances’, ‘combined punishment for several crimes’, ‘cruel means of crimes’, ‘accomplices’, ‘principal criminals’, ‘faults of victims’, ‘aged under 18 at the time of committing crimes’ and ‘staff member of state organisation’ all fit in the scope of crime-related evidence, and serve as mixed sentencing-and-conviction evidence. Representing an 85% proportion of all sentencing evidence, the total occurrence of such evidence is 266. As regards sentencing evidence, however, it includes truthful confession, recidivists, high social risks, usually well-behaved, meritorious performance, pregnant during trials, arrested without resistance, arrested with the assistance of families, and forgiven by the victims, totalling 46 occurrences, or 15% of the total. The key reason for the existence of such a drastic difference between the amount of mixed and pure sentencing evidence is undoubtedly that factors which are closely related to criminal behaviours are easily obtained during the whole process of the case. For example, some circumstances, such as whether the criminal consequence is objectively clear, and whether the means of crime is cruel, can be subjectively evaluated with the help of common sense. Because of its very high availability, its amount is normally fixed; most of the available sentencing evidence in this category has already been demonstrated completely. In contrast to the high availability of the mixed type, pure sentencing evidence is not easy to collect. Taking ‘usually well-behaved’ and ‘high social risks’ as examples, an overall assessment of the defendant is needed; neither active compensation nor forgiveness by victims is possible in most cases. Nevertheless, these factors are evidence that can be probed and explored, whether from by the judge or by both parties to the lawsuit. Focusing on these factors could lead to a breakthrough in increasing the current amount of sentencing evidence.

The impact of major sentencing evidence on the death sentence

Among the 69 individuals who were involved in the 40 cases surveyed, 58 received the death penalty, yielding a proportion of 85%, and 42 of the 58 death-sentenced criminals were immediate executed. The remaining 11 have been sentenced to life or fixed-term imprisonments, or acquitted (see Figure 2).

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Figure 2.

Distribution of judgments.

Criminal consequences

In the cases that were not sentenced to a death penalty, 4 had not caused any deaths but the remaining 7 had, whereas in all cases that ended with a death sentence, the victims died (see Figure 3). Therefore, the first conclusion from the data is that the death penalty in intentional homicide cases overwhelmingly correlates with cases in which the victim has died.

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Figure 3.

Distribution of criminal consequences in cases which did or did not end with death penalty.

Also, according to the statistics, of the 43 defendants who caused one death, the death penalty was applied to 37 of them (including 15 sentences to death with a two-year reprieve and 22 with immediate execution), 86% of the total. Of the 21 individuals who caused multiple deaths, 20 were executed immediately, a ratio of 95% (see Figure 4). Thus the second conclusion is that causing multiple deaths influences the application of death penalty significantly, and has a strong tendency to lead to immediate execution. As for the discontinuance of crimes and attempted crimes, all samples with such circumstances were sentenced to fixed-term imprisonment. This result supports the first conclusion and lays a foundation for the third conclusion, that the death penalty is not given in attempted but failed or terminated cases of intentional homicides.

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Figure 4.

Number of deaths caused and the application of death penalty.

Causes of crimes and combined punishment for several crimes

These two factors are analysed together because, apart from the situations of manslaughter in the heat of the moment or premeditated murders, the majority of cases in this category arise from intentional killings in the process of conducting other crimes, including homicides organised by mafias, killings occurring during robberies, or killings resulting from domestic conflicts. Twenty-five accused meet these criteria, accounting for 76% of all the defendants who received a combined sentence for several crimes. In conclusion, the causes of crimes are closely associated with the combined sentence for several crimes.

For ‘combined punishment for several crimes’, which involves 33 individuals in this study, all sentencing decisions reflect the harshest sentencing for each crime of the combinations (either the death penalty or life imprisonment). For example, if the harshest sentencing is the death penalty with immediate execution, then this will become the final decision for the combined sentence. The same rule applies for the combination of the death penalty with a two-year reprieve and life imprisonment. Indeed, when the harshest penalty for individual crimes of the combination turns out to be fixed-term imprisonment, according to the specification of Criminal Law, the combined sentence ought to be the same, and there is no possibility for the penalty to transform into the death penalty. Therefore, my fourth conclusion is that there is no combined sentencing for several crimes has no significant impact on capital cases.

From the perspective of the underlying cause of the crime, the rate of death penalty application in intentional homicides caused by family and marital conflicts is the lowest (see Figure 5). In all five cases, only the case of intentional homicide and arson of Tang Shaoyang ⁵ received the death penalty (and there the defendant killed his wife and son in an extremely inhumane way). Therefore, the fifth conclusion is that using discretion to hand down a lighter sentence in those crimes caused by domestic conflicts and marital relationships conforms to the existing criminal policy guidance.

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Figure 5.

The death penalty application caused by different factors.

Another common factor is illegal drug consumption that leads to homicidal behaviour. Even though only one death was caused by the accused of this category, all of them employed inhumane actions and serious crimes. The only exception is the intentional homicide case of Huang Chuanhui, the third sample of the five typical drug-related crimes announced by the Supreme People’s Court. ⁶ In that case, the defendant received the verdict of sentenced to death with a two-year reprieve (for the application of reprieve, the written judgment explains: ‘as it is a crime which occurred within a family, making it different from the intentional homicides happened in the public that have severely damaged the safety and security of the society’). Additionally, Huang pleaded guilty with considerable remorse, having gained the forgiveness of the victim’s family, who were compensated financially according to legal regulations. These mitigating factors led to Huang’s two-year reprieve of the death sentence and avoidance of immediate execution. This corresponds to the mitigating sentence for capital cases that occur within families, as described in the second conclusion; all other defendants were sentenced to death with immediate execution. To summarise (the sixth conclusion), committing homicide after taking drugs increases the application of the death penalty which will normal be applied.

The proving method of sentencing evidence in capital cases

According to the various requirements for the types and eligibility of evidence as well as the investigation procedure, the methods for proving individual evidence are divided into two types: strict and free. The former require the evidence to fit in the types that have been legally defined and to be equipped with high crediblity; it also demands that proofs and investigations must conform to legal approaches as well as perform adequate proofing and examination during trials. By contrast, the latter does not set strict limitations on the types and forms of evidence, and allows the appropriate testing strategies to be determined in accordance with the conventions of general practice; in other words, legal plausibility can be gained by any means (such as examining records or telephone inquiries). ⁹ It does not insist on high credibility of evidence; even hearsay evidence can be used.

With regard to whether the strict or the free method of proof should be applied to a particular piece of evidence, some scholars have suggested that strict method is ‘both the premise of informing the conviction and the threshold of the presumption of innocence’, ¹⁰ which indirectly suggests an approach whereby the strict method is applicable to conviction evidence. Accordingly, sentencing evidence, which overlaps with conviction evidence, will also adopt the strict method. Yet, for those pure pieces of sentencing evidence, reinforcing multiple restrictions on their form and content is not only superfluous, but also risks obstructing justice by making it difficult to produce impartial judgments.

It is worth mentioning that the application of the free method of proof to pure sentencing evidence is extremely important in capital cases. It is inevitable when discussing capital cases that attention is focused on the sentencing, but in fact the sentencing evidence, especially those pure pieces, are particularly rare in death penalty cases. As mentioned above, pure sentencing evidence ‘can be used as the breakthrough for increasing the existing quantity of sentencing evidence’. However, this increase needs to be backed by the free proof method. For instance, the circumstance of ‘usually well behaved’ only occurs three times among the 69 individuals, but this does not mean it is an inconsequential condition. Once in an intentional homicide committed by a university student, the defender raised 13 pieces of evidence (including certificates of merit from primary and secondary schools, etc.) to prove the circumstance of ‘usually well behaved’ after arranging 11 meetings with the defendant and reading through his text messages of the previous two years with his permission, as well making contacts with various of his teachers and fellow students. As a result, the court validated this factor in the judgment while adding in other conditions, and accordingly showed leniency. To summarise: similar circumstances and factors can be proved if there is sufficient proof, and the priority is the lenient admittance of such evidence.

The proof burden of sentencing evidence in capital cases

During the conviction phase, due to the effect of the presumption of innocence, a lot of countries have established legal systems that allocate the burden of proof to the prosecutors. However, at the sentencing stage, the issue of where to assign the burden of proof has long been full of paradox and ambiguity. Despite the absence of precise provisions, it is obvious that during this process both parties in a lawsuit are going to put forward their claims for sentencing. By not providing proof for such claims, they have to take the risk that the court will not accept their opinions. In other words, it is a procedure of ‘he who raises it should prove it’. Also, it is necessary to stress again that this assignment of the burden of proof is applicable only to pure sentencing evidence, because the prosecutors have already taken up the non-transferable responsibility of proving the sentencing evidence where it overlaps with conviction evidence.

The idea of ‘he who raises it should prove it’ serves as a simple conclusion of the theory and a guiding principle; its application in real-life situations may have different effects for both parties of the lawsuit.

Regarding public prosecution authorities, based on the content, they often need to use evidence to prove any aggravating circumstances they have raised at sentencing. Nonetheless, as the state body responsible for legal supervision, the China People’s Procuratorate also has an obligation to be objective and neutral, so they will also deliver evidence that is favourable to the defendant to the court, such as voluntary surrender, meritorious performance, actively returning spoils and making compensation, spontaneously pleading guilty during hearing, and genuine repentance, etc. Especially for those cases in which death penalty is potentially applicable, public prosecution authorities should pay more attention to what they impose on sentencing. The intentional homicide case of Li Baosheng is an excellent example of such responsibility. ¹¹ The prosecution authority insisted on lodging a protest against the court’s judgment, which had sentenced the defendant to death with immediate execution; as a result, the sentence of Li has been commuted to death penalty with two-year reprieve. Yet this does not mean that public prosecution authorities have to raise sentencing opinions through appeal procedure; actually, they can bring them up in the public prosecution, the right of sentencing claim can be used as early as when the Procuratorate initiates a public prosecution. In recent years, with the establishment of the relatively independent sentencing procedure in China, a sentencing suggestion system has been built with detailed provisions in the Rules for Criminal Procedure of the People’s Procuratorate issued by the Supreme People’s Procuratorate. ¹² Thus, in China, the public prosecution authority is entitled to put forward sentencing opinions as a suggestion before trial, during court proceedings, and as part of a counter-appeal after a decision has been made. The diverse forms of bearing the burden of proof play a particularly important role in capital cases.

As for defendants, although the People’s Procuratorate might provide evidence in accordance with its obligation to be objective and neutral, it does not waive the requirement for the defence side to prove any claimed mitigating circumstances such as voluntary surrender, meritorious performance, usually well-behaved, actively compensating after commuting crimes, having difficult households with duties of supporting and responsibility which the victims are liable for, and so on. However, the actual effect of sentencing defence is not as good as expected. This disappointment is usually the result of the defender failing to actively collect specific and adequate sentencing evidence, either for objective or subjective reasons, as well as the fact that the sentencing defence has been ignored when the court made its judgment. For instance, in the written judgment of the case of Jin Ruchao who committed homicide and criminal explosion ¹³ from the second instance, the sentencing suggestions proposed by the defender have been recorded but without any explanation of the fact that they have not been accepted. Despite this, it is very clear that the defending party carries the burden of proof for the idea of lenient sentencing; carrying out this duty is even more crucial in capital cases, which determine between death and life. Even for the innocent plead at the conviction stage, the defendant ought to actively collect sentencing evidence that is related to the personality and behaviour of the defendant prior to the trial. In order to fulfil this requirement, they can employ specific means, such as the previously mentioned approach of visiting communities and groups of the defendant, in order to collect 13 pieces of evidence that can prove the he is usually behaving well, referring to personal belongings, or strengthening the communication with the defendant, etc.

The proof standard for sentencing evidence in capital cases

In contrast to the previous two points, the proof standards in capital cases have already been defined by the official documents that China issued a considerable time ago. In the Provisions on Several Issues Concerning the Examination and Judgment of Evidence in Death Sentence Cases, which was issued in 2010, Article 5 stipulates that

a. all facts for conviction and sentencing are backed by evidence; b. all evidence used to determine the case has been verified through legal procedures; c. there is no contradiction between different pieces of evidence or between evidence and case facts, or the contradiction, if any, has been reasonably ruled out; d. in a joint offence, the defendant’s role has been ascertained; as well as e. the process of using evidence to verify case facts conforms to the logic and experiential rules, and the conclusion reached from evidence is exclusive.

Black’s Law Dictionary defines the standard of proof as ‘the degree or level of proof demanded in a specific case’ (Garner, 2009: 1535). Determining what this level is can been as similar to measuring the degree to which a set of scales is tilted: the angle of tilt could be caused by either a discrepancy between weights on both sides or simply by an increase on one side. Clearly, the standard of proof is not fixed for all situations. Apparently, in an attempt to set the standard, the Article 5 clauses discussed above indiscriminately pile a great deal of contents in; for example, ‘a. all facts for conviction and sentencing are backed by evidence’ conveys the demand for quantity and type; whereas the rule b., which declares that ‘all evidence used to determine the case has been verified through legal procedures’, puts forward the idea of rigorous proof. However, when the situation arises that such requirements cannot possibly be fully satisfied, the judge is faced with an awkward dilemma that the actual facts have been clarified along with assurance in mind while according to the law no determination can be made.

The dilemma described above becomes particularly extremely common when sentencing procedures lack adequate adversarial challenge, as the other party normally does not argue against the presentation of a piece of sentencing evidence. For instance, in a gruesome homicide case, if the official prosecutor described the means that the defendant employed in the murder as inhumane, the defender would usually not ask for much explanation of this. Conversely, if the defender declared that the defendant had a suffering household and needed to support his parents, the prosecutor would not normally attempt to refute the claim either. Can such a situation be considered to be fulfilling the standards of proof? According to ordinary logics, it has made the fulfilment, yet the opposite will be generated in accordance to the above clauses.

Even where sentencing evidence is challenged, the idea that ‘c. there is no contradiction between different pieces of evidence or between evidence and case facts, or the contradiction, if any, has been reasonably ruled out’ still needs further discussion. The elimination of contradictions is usually conducted by distinguishing between true and false. Regardless of the practical possibility of such a process, there is a large amount of evidence in sentencing that can be true and yet the contrary can be asserted at sentencing. Taking the evaluation of personality as an example, for some people a criminal might seem to have always been well-behaved, whereas others might find him incorrigible.

As regards rule e, ‘the process of using evidence to verify case facts conforms to the logic and experiential rules, and the conclusion reached from evidence is exclusive’, this has frequently been misunderstood as requiring a higher standard of proof that eliminates all doubts. As a kind of historical proof, proof in lawsuits is different from proof in scientific experiments. Legal proofs are highly dependent on experience and common sense, which are essentially matters of probability, hence it is not possible for the procedure of proof to eliminate all unreasonable doubts. In this dynamic and diversely populated world, there will always be an individual who can come up with an imaginative or speculative doubt. Therefore, the elimination of all doubts qualifies only as a potential political slogan for use when proclaiming the gravity of capital cases, but can never be made the standard of proof in lawsuits.

From the theoretical exploration and empirical analysis above, this paper comes to the conclusion that the standard of proof for sentencing evidence in capital cases remains in line with the classification of sentencing evidence. To be precise, the clauses described above are applicable to the mixed parts of sentencing and conviction evidence; moreover, according to the new Code of Criminal Procedure, the standard of eliminating reasonable doubts is also applicable, while pure sentencing evidence employs the superior evidence standard. The term ‘superior evidence standard’ means ‘when a fact is of higher possibility in comparison with the other fact, the court should be convinced its existence and use it as the foundation of judgment’ (Chen, 2011). Using such a standard can not only encourage the collection of these pieces of sentencing evidence, but also provide the court with a practical course of action when two pieces of sentencing evidence contradict each other.