The Rights Practice Briefing Paper The SPC does not publish complete data on the number of cases it reviews or the number of executions it approves making it impossible to gain a proper understanding of the outcomes of the review process. It has been suggested that the SPC has overturned less than 10% of the higher court decisions on immediate execution with some suggesting the rate is as low as 3%.7 Research by Dui Hua looked at the length of time between trials, SPC review and execution and found it varied case by case. The shortest observed was 37 days from first instance trial to SPC review with the median being 370 days.8 Earlier research by Dui Hua showed that the average prisoner waits two months for execution following SPC approval 9 despite the Criminal Procedure Law (2018 Art. 262) stating that executions should be carried out by the lower court within seven days of receiving the order to execute from the SPC. Suspended Death Sentence In a capital case, if the immediate execution of the defendant “is not necessary” the court may impose a suspended death sentence (死缓). The death sentence is suspended for two years after which the court will decide whether to commute the sentence to life imprisonment or carry out the execution. Under the criminal law a suspended death sentence will normally be commuted to either life imprisonment or a fixed term imprisonment of 25 years provided that the prisoner has not committed any intentional crimes in the two-year period (CL.17 Art.50). The Ninth Amendment to the Criminal Law (2015) specified that prisoners with suspended death sentences would only be subject to executions if they committed an intentional crime in “heinous” circumstances. The 2018 revision to the CPL (Art. 261) similarly states that a suspended death sentence will be commuted when no intentional crime has been committed in the two-year period. The Eighth Amendment to the Criminal Law (2011) increased the minimum tariff for the suspended death sentence and life imprisonment. Prisoners who were given a suspended death sentence later commuted to life and then eligible for further commutation must now serve a minimum of 15 years. The Eighth Amendment also introduced the suspended death sentence with limited or restricted commutation. The revision was intended to address concerns that, in some cases, the suspended death sentence was too lenient while execution would have been too harsh. Under these new sentences a prisoner may not be released until after serving a minimum period of 20 or 25 years. The sentence may be used for those convicted of violent crimes as well as some recidivists (CL 2011 Art.50).10 This use of the suspended death sentence for murder, without the possibility of a sentence reduction, is cited approvingly in one of the Guiding Cases.11 Miao notes that drug offenders are not the main target for these restrictions on the use of parole although drug crime is understood to represent a large percentage of executions.12 The Ninth Amendment to the Criminal Law (2015) introduced a further restriction on the use of the suspended death sentence. This new sentence is a two-year suspension of execution without the possibility of any commutation. It is, Miao argues, a harsher sentence than Life Without Parole (LWOP) 7 Miao, Michelle. “Defining Death-eligible Murder in China” 2019. American Journal of Comparative Law Dui Hua “Observations in Death Penalty Cases in China” May 6, 2020. https://www.duihuahrjournal.org/2020/05/observations-in-death-penalty-cases-in.html 9 Dui Hua. “China’s Average ‘Death Row’ Prisoner Waits 2 Months for Execution.” 27 April 2016. https://www.duihuaresearch.org/2016/04/chinas-average-death-row-prisoner-waits.html 10 China Law Translate. China Criminal Law 2011 https://www.chinalawtranslate.com/en/criminal-law-of-the-prc-2011including-8th-amendment/ 11 Guiding Case No. 4: Wang Zhicai, An Intentional Homicide Case. Available in English from Stanford Law School China Guiding Cases Project. https://cgc.law.stanford.edu/guiding-cases/guiding-case-4/ 12 Miao 2016 footnote 18. See footnote 3 above. 8 4