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.
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