Deadly justice without mercy in East Asia?

ABSTRACT

This article explores executive clemency in death penalty cases in China, Taiwan and Japan. All three neighbouring legal jurisdictions are notable for frequently passing death sentences and executing prisoners over the past several decades without the executive branch of government granting individualised pardon or commutation to any death row prisoner since at least 1975, if not earlier. This highly unusual feature of all three nations’ death penalty practice suggests a policy puzzle. The authors’ case study comparison of these three East Asian jurisdictions reveals two common explanatory features. First is the availability of alternative post-appellate procedures to mitigate punishment in cases undeserving of death, and to limit execution totals for policy reasons. Second is the inability of condemned prisoners to directly access the ultimate clemency decision-maker by petition, unlike in most death penalty retentionist jurisdictions. The authors conclude by making several policy recommendations on this basis.

KEYWORDS:

• Death penalty
• clemency
• pardon
• China
• Taiwan
• Japan

Statutes and Constitutions

Act to Implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights 2009 (Republic of China)

Amnesty Law 1980 (Republic of China)

Code of Criminal Procedure (Japan) 1948

Constitution of El Salvador 1983

Constitution of Guatemala 1985

Constitution of Japan 1946

Constitution of the People’s Republic of China 1954

Constitution of the People’s Republic of China 1975

Constitution of the People’s Republic of China 1978

Constitution of the People’s Republic of China 1982

Constitution of the Republic of China 1947

Criminal Commutation Act 1971 (Republic of China)

Criminal Commutation Act 1975 (Republic of China)

Criminal Commutation Act 1988 (Republic of China)

Criminal Commutation Act 1991 (Republic of China)

Criminal Commutation Act 2007 (Republic of China)

Criminal Law 1979 (People’s Republic of China)

Criminal Law 1997 (People’s Republic of China)

Criminal Procedure Law 1979 (People’s Republic of China)

Law Concerning the Enforcement of Sentences, the Granting of Clemency, etc 1952 (Japan)

Offenders Prevention and Rehabilitation Act 1949 (Japan)

Offenders Rehabilitation Act 2007 (Japan)

Ordinance for the Enforcement of the Pardon Act 1947 (Japan)

Pardon Act 1947 (Japan)

International Instruments

International Covenant on Civil and Political Rights (16 December 1966)

International Covenant on Economic, Social and Cultural Rights (16 December 1966)

Second Optional Protocol to the International Covenant on Civil and Political Rights (15 December 1989)

Notes

1. “Pardon” refers here to the prisoner being released altogether, sometimes accompanied by a declaration of innocence and the restoration of civil rights. “Commutation” refers to the death sentence being reduced to a lesser punishment, typically life imprisonment or a long determinate sentence (Van Zyl Smit & Appleton, 2019, p. 260). Clemency of either type is usually sought following the exhaustion of judicial appeals.

2. Clemency has also been granted by authoritarian leaders to boost their own legitimacy in the eyes of domestic constituents and foreign governments. Granting clemency in a selected number of capital cases provides an autocratic demonstration of the power over life and death (Sebba, 1977b).

3. Article 6(4) reads: “Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.” The content of the ICCPR’s “right to seek” clemency has recently been interpreted by the UN Human Rights Committee in General Comment 36, adopted on 30 October 2018 (Human Rights Committee, 2018, p. 12). Fulfiling the right now requires that requests be “meaningfully considered”, alongside: certainty about the processes followed and the substantive criteria applied; a right for individuals sentenced to death to initiate pardon or commutation procedures and to make representations about their personal or other relevant circumstances; a right to be informed in advance when the request will be considered; and a right to be informed promptly about the outcome of the procedure.

4. See Hood and Hoyle (2015); Fermín Ramírez v Guatemala (2005), pp. 109; Schabas (2002).

5. See Argys and Mocan (2004) and Heise (2003) on the methodology for calculating a retentionist jurisdiction’s clemency “rate”.

6. Although the number of retentionist countries reporting annual clemency figures is small in comparison to the overall number of states reporting executions, Amnesty International’s annual death penalty reports support the contention that most retentionists fall within the “medium” band (e.g., Amnesty International, 1989, 2010, 2013, 2016), at least for countries with clemency rates higher than zero percent and lower than 100%. Heise’s (2003) research on clemency in retentionist US states suggests likewise.

7. Some jurisdictions impose moratoriums not by profligate executive clemency, but instead by leaving prisoners languishing indefinitely on death row indefinitely, until their death via natural causes (Garrett, 2017a).

8. Constitution of Guatemala 1985, art 171(g); Constitution of El Salvador 1983, art 131(26). Both nations are now classified as “abolitionist for ordinary crimes only” by Amnesty International, as each retain the death penalty for military offences only (Amnesty International, 2020, p. 55).

9. Bilateral clemency refers to clemency granted in response to a prisoner’s written petition, or a petition submitted by a lawyer or family relative. Unilateral clemency is clemency granted by an executive authority without, or regardless of, a request.

10. Singapore’s clemency rate in death penalty cases is less than one percent since 1975 (Pascoe, 2014; Pascoe, 2019a). Florida has not granted clemency in a death penalty case since 1983, whereas Texas has granted only three commutations since 1976, despite hundreds of executions since (Death Penalty Information Center, 2019a). The President of Belarus, Alexander Lukashenko, has only granted one commutation since coming to power in 1994, authorising more than 400 executions over the same period (Belarus Feed, Belarus Court Files First Death Penalty in 2019, 2019). The President of Botswana has only granted clemency once since independence in 1966, yet the number of prisoners executed is approximately one per year, less than the aforementioned jurisdictions (Tsebe v Minister of Home Affairs; Phale v Minister of Home Affairs, 2012; Death Penalty Worldwide, 2019; Death Penalty Information Center, 2019b).

11. Several scholars have wrestled with the idea of an “ideal clemency rate” in capital cases. See, for example, Heise (2015) and Perry (2017).

12. To shed light on the clemency decision-making process and reasoning in death penalty cases, which is rarely revealed by primary and secondary written sources (Acker et al., 2010; O’Donnell, 2017), the authors conducted 22 “elite” interviews in Tokyo and Taipei between December 2019 and January 2020, meeting with capital defence lawyers, civil servants, current and former politicians, NGO staff and academics. The identities of all interviewees cited have been anonymised, in line with ethical stipulations. The authors did not conduct interviews in the PRC, due to a) the abundance of existing academic literature on “special amnesty” and “general amnesty” laws and practices throughout the history of the PRC (e.g. Y.S. Chen, 2010; Ding, 2016; Gan, 2009; Hong, 2009; Jiao, 2019; Xiong, 2020; Xu, 2009), and b) the likely inaccessibility of government interviewees, given the PRC’s authoritarian political system.

13. See Appendix for recent annualised data.

14. The NPCSC exercises the legislative power of the National People’s Congress in between Congress sessions. Article 80 of the Constitution of the People’s Republic of China 1982 creates a constitutional executive clemency power, exercisable by the president as head of state, though the effective political decision-maker on “special amnesty” is a legislative body, via the current art 67(18) (Xu, 2009).

15. Criminal Law 1997 (PRC), art 65; Criminal Law 1979 (PRC), art 61–62; Criminal Procedure Law 1979 (PRC), art 15(3).

16. General Amnesty typically refers to a group amnesty for a specified offence, from a specified region or in relation to particular events. Unlike Special Amnesty, it can also be granted before conviction (Xu, 2009; Jiao, 2019).

17. The PRC signed the ICCPR in 1998 but has not yet ratified it, despite previous promises to do so (Human Rights Watch, 2013). See note 3 on the precise requirements of art 6(4).

18. One recent example is the death sentence imposed on Wu Ying, formerly the sixth-richest woman in China, for fraud. In March 2012, Chinese Premier Wen Jiabao urged the Supreme People’s Court to “handle her case carefully”, widely interpreted as a call to reject the death penalty with immediate execution and to return the case to the Zhejiang Higher People’s Court for resentencing (Wong, 2012). Wu Ying was subsequently resentenced to the suspended death penalty, which in March 2018 was commuted to 25 years’ imprisonment (Sina News, Wu ying huo jianxing you wuqi jian wei you qi tuxing 25 nian [Wu Ying’s sentence reduced from life to 25 years’ imprisonment], 2018). In lower-profile cases, the PRC’s Central Political and Legal Affairs Commission (and its precursors) may have been the institutional mechanism through which the CCP influenced the decisions of the criminal courts to achieve lenient outcomes. See generally Y. Li (2014) and Foreign Broadcast Information Service (1992).

19. The “cash for clemency” controversy involved a similar concern, in which murder convicts were pressured to pay compensation to victims’ families to avoid death sentences (Johnson & Miao, 2016, p. 311; Xu, 2009).

20. Any one of the “Ten Unforgivable Crimes”/“Ten Abominations” could be the subject of a broader amnesty, but could never be wholly pardoned through forgiveness (McKnight, 1981). More recently, Qing Dynasty authorities also excluded some crimes from pardon (ibid).

21. See Appendix.

22. Zhao (2005) and Zhang (2005) also note the strong similarities between the death penalty system of imperial China and the suspended death sentence’s operation in the PRC.

23. The precise definition of good behaviour during the first two years in prison has changed over time. Compare Criminal Law 1979 (PRC), s 43, 46 (hard labour during imprisonment; “true repentance”; not resisting reform “in a flagrant manner”) and Criminal Law 1997 (PRC), s 50 (not intentionally committing a crime).

24. Criminal Law 1979 (PRC) art 61–62. One study of death sentences in Chinese courts between 1979 and 2005 revealed that 81.5% involved the death sentence “with immediate execution” whereas 18.5% involved the suspended death sentence (Trevaskes, 2012). Under Mao Zedong, about 25% of all death sentences were suspended for two years (Y.L. Li, 2013). Assuming that the vast majority of suspended death sentences are eventually reduced to sentences of imprisonment, these figures fall within the presumptive “medium” rate of commutation for finalised death sentences (see notes 5–6).

25. See notes 3, 17.

26. ibid; assuming that the “right to seek” clemency in death penalty cases has not attained customary international law status, due to inconsistent state practice.

27. Furthermore, the Executive Yuan Council (Cabinet) reviews bills for amnesty before these are passed by the Legislative Yuan (legislature) (Constitution of the Republic of China 1947, art 58).

28. Amnesty Law 1980 (ROC), s 6; Death Penalty Project (2014); Interview with Taiwanese Civil Servant, 6 January 2020; Interview with Taiwanese Cabinet Minister, 14 January 2020.

29. See K.P. Su (2018) for a detailed account of Taiwan’s death penalty practice during the martial law era.

30. See Appendix.

31. H.W. Liu (2014) cites unconfirmed reports suggesting that, in addition to the Huang Xiao-xian case, President Chiang Kai-shek also granted clemency to two death row prisoners convicted of treason in 1965. S. Chen (2016a) and China Times, 1947 nian Xingxian yilai Quanguo xing te she jian xing gong qi ci [Seven Times of National Special Pardons and Commutations of Sentence since the Adoption of Constitutionalism in 1947] (2016) also mention further examples of individual pardons benefiting non-capital prisoners under Chiang (justified by the prisoners’ prior national service), and under President Lee Teng-hui after 1990. President Chen Shui-bian issued pardons three times between 2000 and 2008 to free non-capital prisoners (see Tsai, 2007; S. Chen, 2016a; Shih et al., 2018), most famously to Su Ping-kun, on innocence grounds, in 2000. Su was sentenced to a 15-year term for robbery and attempted murder in 1986. His conviction was eventually overturned in 2018. The two most recent presidents of the ROC, Ma Ying-jeou and Tsai Ing-wen, have not used constitutional clemency powers in any case, capital or non-capital (Interview with Taiwanese Civil Servant, 6 January 2020; Interview with Taiwanese Civil Servant #2, 6 January 2020; Interview with Taiwanese Criminal Defence Lawyers, 9 January 2020).

32. Criminal Commutation Act 1971 (ROC); Criminal Commutation Act 1975 (ROC); Criminal Commutation Act 1988 (ROC); Criminal Commutation Act 1991 (ROC); Criminal Commutation Act 2007 (ROC). The 1971 amnesty was passed to celebrate the 60^th anniversary of the ROC’s founding, whereas the 1975 amnesty honoured the life of President Chiang Kai-Shek, who died that year. One interviewee speculated that Taiwan’s regular general amnesties began in 1971 as a show of benevolence, given President Chiang’s declining health (Interview with Taiwanese Law Professor, 3 January 2020). The 1971, 1975 and 1988 amnesties, although approved by the Legislative Yuan, were likely first ordered by the political executive, given the state’s authoritarian posture at the time (Interview with Taiwanese Cabinet Minister, 14 January 2020; Interview with Taiwanese Law Professor #2, 6 January 2020). See note 27 on the attendant decision-making process.

33. Criminal Commutation Act 2007 (ROC), s 2–3.

34. Interview with Taiwanese Law Professor, 3 January 2020; Interview with Taiwanese Civil Servant, 6 January 2020; Interview with Taiwanese Law Professor #3, 8 January 2020.

35. Act to Implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights 2009 (ROC). Taiwan signed the ICCPR as a member state of the United Nations in 1967, but did not ratify. See further Shope (2012).

36. Corroborated by Interview with Taiwanese Civil Servant, 6 January 2020; Interview with Taiwanese Cabinet Minister, 14 January 2020; Interview with Taiwanese Criminal Defence Lawyers, 9 January 2020; Interview with Taiwanese Law Professor #4, 13 January 2020. These interviewees asserted that petitions from prisoners were typically redirected, without being read, to the Ministry of Justice for investigation, as permitted by art 6 of the Amnesty Law 1980 (ROC).

37. ibid; Interview with Taiwanese NGO Staff, 7 January 2020. A contrary view was expressed by another interviewee, who stated that Presidents Chen Shui-bian and Tsai Ing-wen likely read individual petitions for clemency personally (Interview with Taiwanese Law Professor #3, 8 January 2020).

38. Re Shen Ci-wu and others (2017), corroborated by Interview with Taiwanese Cabinet Minister, 14 January 2020; Interview with Taiwanese NGO Staff, 7 January 2020. See also Chen Yi-long v Ma Ying-jeou (2014).

39. Re Wang X Qin (2010); Death Penalty Project (2014).

40. Corroborated by Interview with Taiwanese Civil Servant, 6 January 2020; Interview with Taiwanese Civil Servant #2, 6 January 2020; Interview with Taiwanese Law Professor #3, 8 January 2020. The latter interviewee stated that for Taiwanese presidents, failing to publicly respond to petitions is the safest political option. Under the ICCPR, prisoners who apply for commutation or pardon now possess a “right to be informed promptly about the outcome of the procedure” (Human Rights Committee, 2018, p. 12).

41. FIDH and Taiwan Alliance to End the Death Penalty (2006); Interview with Taiwanese Prosecutor, 13 January 2020; Interview with Taiwanese Criminal Defence Lawyers, 9 January 2020; Interview with Taiwanese Law Professor #4, 13 January 2020. In an echo of a common Japanese practice (see note 49), FIDH and Taiwan Alliance to End the Death Penalty, (2006) mention one case sent between the Supreme Court and the High Court for retrial 18 times. Furthermore, other than the typical judicial options, the prisoner also has the ability to petition the Control Yuan (supervisory government branch) to investigate the case, or to launch a constitutional interpretation in the Constitutional Court (Yeh, 2009).

42. These percentages combine such totals for each of the years 2000 to 2009, rather than by following the progress of individual cases through the system.

43. Corroborated by Interview with Taiwanese Civil Servant, 6 January 2020.

44. Note 3.

45. See Koshi (1970) and Rehabilitation Bureau, Ministry of Justice, Japan (2015) for more explicit detail on the differences between these forms of leniency.

46. Pardon Act 1947 (Japan), s 3–4; Rehabilitation Bureau, Ministry of Justice, Japan (2015).

47. See further Appendix.

48. See Code of Criminal Procedure 1948 (Japan), s 435–453; Murakami and Murata v Japan (1975). Other possible criteria may justify a retrial, including forged evidence or false testimony, or the conviction of a judge, prosecutor or police officer for “an offence pertaining to his duties in connection with the case”.

49. Death row prisoners are entitled to apply more than once with new evidence. In one notorious case, a death row prisoner had applied for retrial 18 times and for clemency five times over 30 years (Shimizu, 2003). However, the theoretical availability of an infinite number of retrials and clemency applications has also had an adverse consequence for prisoners. To prevent endless appeals, prosecutors within the Ministry of Justice no longer give advance notice of executions (Johnson & Zimring, 2009a). Defence lawyers must therefore “guess” when to file further appeals to postpone execution (Johnson, 2006, p. 254).

50. Code of Criminal Procedure 1948 (Japan), s 452.

51. Emphasis in original. See Death Penalty Project (2013) for more recent data.

52. The Japanese government seeks a series of continuous executions to maintain general deterrence and government authority and to satisfy public opinion (Johnson & Zimring, 2009b; Sato & Bacon, 2015).

53. See Pardon Act 1947 (Japan), s 12 and Ordinance for the Enforcement of the Pardon Act 1947 (Japan), s 1–2 for more detail on the precise procedures and documentary requirements for clemency applications by the intermediary.

54. Often the prisoner will employ an attorney. In theory, prison wardens can apply unilaterally without a prior request by a prisoner. But in practice, this does not occur, thereby exacerbating Japan’s “death row volunteer” problem (Interview with Japanese Capital Defence Lawyer #3, 13 December 2019; Interview with Japanese Capital Defence Lawyer and Former Civil Servant, 3 December 2019). As Johnson (2019) observes, up to a third of Japanese death row prisoners have abandoned their judicial appeals to speed up the execution process.

55. Ordinance for the Enforcement of the Pardon Act 1947 (Japan), s 1–2(2); Interview with Japanese Capital Defence Lawyer #3, 13 December 2019; Interview with Japanese Capital Defence Lawyer and Former Civil Servant, 3 December 2019.

56. See also Ordinance for the Enforcement of the Pardon Act 1947 (Japan), s 10(1); Offenders Rehabilitation Act 2007 (Japan), s 89.

57. See also Offenders Prevention and Rehabilitation Act 1949 (Japan), s 51.

58. Corroborated by Interview with Japanese Capital Defence Lawyer #2, 10 December 2019.

59. Interview with Japanese Criminology Professor, 2 December 2019; Interview with Former Japanese Cabinet Minister, 4 December 2019. See, for example, Kyodo News (Japan mulls amnesty in honor of Emperor Naruhito’s enthronement, 2019); The Asahi Shimbun (Amnesties for criminals set to mark Naruhito’s enthronement, 2019). Nonetheless, these obstacles have not prevented the National Offenders Rehabilitation Commission from recommending executive leniency for rehabilitated prisoners in numerous cases involving lesser punishments, mostly involving the restoration of civil rights, elimination of fines and the remission of the remaining sentence for existing parolees. See Shikita and Tsuchiya (1992) for a detailed list to 1988 and Ozawa (2018) for more recent data on executive action in non-capital cases from 2013 to 2017.

60. The practice of granting general amnesties to celebrate important national events, to benefit political allies and to promote respect for the monarchy continues, albeit not for prisoners sentenced to death. During this article’s drafting, the Japanese Cabinet approved a general pardon to offenders convicted of relatively mild offences, to celebrate the enthronement of Emperor Naruhito on 22 October 2019 (Wada, 2019; The Japan Times, Are government pardons still relevant?, 2019; Jones, 2019). See Ministry of Justice, Japan (1997) for a full list of general pardons from 1945 to 1993.

61. Prison wardens have several incentives not to recommend clemency, including their career progression, lack of institutional precedent, and anticipation of a negative response from the Commission (Interview with Japanese Criminology Professor, 2 December 2019; Interview with Former Japanese Cabinet Minister, 4 December 2019; Interview with Japanese Capital Defence Lawyer and Former Civil Servant, 3 December 2019).

62. Several interviewees asserted that the Cabinet’s order operates only as a “rubber stamp” for the decision by the Commission, based on recent practice (e.g., Interview with Former Japanese Cabinet Minister, 4 December 2019; Interview with Japanese Capital Defence Lawyer and Former Civil Servant, 3 December 2019; Interview with Japanese Civil Servant #2, 6 December 2019). However, this assertion remains untested, as the Commission has invariably refused to make positive recommendations (Interview with Japanese Capital Defence Lawyer and Former Civil Servant, 3 December 2019; Interview with Japanese Criminology Professor, 2 December 2019). It is plausible that the Cabinet might refuse to grant clemency in a death penalty case following a positive recommendation by the Commission, given the unique political repercussions of commuting a death sentence.

63. Interview with Japanese Capital Defence Lawyer #3, 13 December 2019.

64. See Appendix for recent figures.

65. Interestingly, several politicians from both Taiwan and Japan supported the adoption of the PRC’s suspended death penalty model during the 1990s, 2000s and 2010s. However, such a proposal has never become the official policy of any political party, nor has the Legislative Yuan or the National Diet, respectively, voted on it (Smith & Pascoe, forthcoming).

66. See note 14.

67. See note 62.

68. Interview with Japanese Capital Defence Lawyer #3, 13 December 2019; Interview with Japanese Civil Servant #2, 6 December 2019.

69. See further notes 3, 9. For further discussion, and examples of model clemency systems for these jurisdictions, see Xu (2009), R. Liu (2013), and Xiong (2020) on the PRC, the Death Penalty Project (2014) on Taiwan, and Furuhata (2019) on Japan.

70. By the end of 2018, 46 of the 54 United Nations member states classified as death penalty retentionist by Amnesty International were state parties to the Covenant (85%) (Amnesty International, 2019). This total excludes Taiwan, as a non-member of the United Nations.

71. See UN ECOSOC (1984) on death penalty safeguards.

72. Huang Xiao-xian, 1957. However, see also note 31.

73. Kenjiro Ishii, June 1975.

Additional information

Funding

This work was supported by the Research Grants Council of the Hong Kong Special Administrative Region, China [Project No. CityU 9048110].

Notes on contributors

Daniel Pascoe

Daniel Pascoe, Associate Professor of Law, researches crime and punishment in comparative perspective. He is the author of Last Chance for Life: Clemency in Southeast Asian Death Penalty Cases (OUP 2019) and is co-editor (with Andrew Novak) of Executive Clemency: Comparative and Empirical Perspectives (Routledge 2020).

Andrew Novak

Andrew Novak, Assistant Professor of Criminology, Law and Society, is a specialist in international and comparative law. He is the author of six monographs and is the co-editor (with Daniel Pascoe) of Executive Clemency: Comparative and Empirical Perspectives (Routledge 2020).