Judicial Discretion and Death Penalty Reform in China: Drug Transportation and Homicide as Exemplars of Two Reform Paths

Abstract

This paper focuses on Chinese death penalty reform in relation to two common crimes for which the punishment of death is commonly applied in China: drug transportation and homicide. It looks at how the Supreme People’s Court (SPC) has led the way in reforming death sentencing in these areas by encouraging lower courts to use a ‘suspended’ death sentence rather than an ‘immediate execution’. SPC guidance mechanisms including guiding cases and sentencing guidelines are the conduit through which reform has been achieved. These mechanisms help to corral local discretionary powers to encourage judges to recognize case circumstances that attract mitigated punishment. These mechanisms therefore allow local judges to treat many homicide and drug transportation cases as intrinsically less socially harmful than other cases, while at the same time, preserving the status of homicide and drug transportation as capital offences.