Making sense of life without parole in China
| Author | Su Jiang,Tobias Smith |
| DOI | 10.1177/1462474517739848 |
| Date | 01 January 2019 |
| Published date | 01 January 2019 |
| Subject Matter | Articles |
Punishment & Society
Making sense of life
2019, Vol. 21(1) 70–88
! The Author(s) 2017
without parole in China
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DOI: 10.1177/1462474517739848
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Tobias Smith
Berkeley Law School, USA
Su Jiang
Peking University Law School, China
Abstract
In 2015, the People’s Republic of China introduced the sentence of lifelong imprison-
ment for a single, non-violent crime: corruption. Although life without the possibility of
parole statutes were increasingly common in the US and across the world by the late
20th century, this is the first such statute ever introduced in China. While introducing
the new punishment for corruption, China, the world’s leading executioner, retained
the death penalty for corruption as well. This study examines the reasons for China’s
adoption of life without the possibility of parole and situates China in global debates
about the punitive turn and capital punishment. It also provides insights for understand-
ing how the adoption of life without the possibility of parole fits into a wider constel-
lation of penal practices.
Keywords
capital punishment, China, life without parole, penal reform
In the late 20th century, the whole-life sentence of imprisonment, often referred to
as life without the possibility of parole (“LWOP”), was introduced in many juris-
dictions, most notably throughout the US. Globally, its adoption has not been
even, with some countries moving to restrict the practice as others adopt it.
In 2015, the People’s Republic of China introduced LWOP for the first time in
its history. Why China, the world’s leading executioner, introduced the whole-life
Corresponding author:
Tobias Smith, Berkeley Law School, USA.
Email: tobiasjsmith@berkeley.edu
Smith and Jiang
71
sentence at this time remains an open question. Rather than adopting the punish-
ment for a class of offenses, LWOP in China applies to only one crime: corruption
and bribery (hereafter “corruption”). Although the procedure for amending the
Criminal Law in China provides for a period of public comment, the legislature
circumvented the public comment process in adopting the new sentence. China’s
LWOP statute is a curious midnight addition to China’s Criminal Law.
Solving the puzzle of China’s 2015 introduction of LWOP under the popular
political radar for the single crime of corruption has stakes for resolving broader
theoretical questions in punishment and society scholarship. One established nar-
rative of LWOP’s emergence in the US, as well as the rise of LWOP in other
nations, frames it as an alternative to the death penalty (Penal Reform
International, 2015)—a next-most-punitive alternative to capital punishment.
But empirical evidence of the relationship between the death penalty and LWOP
is not so clear-cut (Nellis, 2017: 24; Seeds, n.p.). China is the world’s leading state
executioner, and kills on a scale that sets it apart globally, prompting an ongoing
debate about the cause of China’s death penalty exceptionalism (Johnson and
Zimring, 2009: 225). And yet China also reportedly began to significantly curtail
its use of capital punishment about a decade before LWOP was adopted.
Policy-makers used other sentencing alternatives—notably the suspended death
sentence—to reduce the execution rate. China has now introduced LWOP for
corruption without removing the death penalty for that crime. LWOP is not avail-
able for any of the other 45 other capital crimes in China, complicating a narrative
of LWOP as downward substitution for capital punishment.
A second established narrative is that LWOP is a sign of the so-called punitive
turn, a penal shift towards tough-on-crime policy, harsh sentences and incapaci-
tation that typified US criminal justice in the late 20th century (Simon and Sparks,
2013: 11). In this narrative, LWOP signals an increase in penal severity. Scholars
have debated the significance of the punitive turn beyond the US and investigated
how a policy of penal punitivity may diffuse across borders in an era of globali-
zation (e.g. Cavadino and Dignan, 2006; Frank et al., 2010; Garland, 2013: 479;
Wacquant, 2009). But China has embraced LWOP amid a “lenient turn,” a period
in which the tough-on-crime ethos of “Strike Hard” campaigns is largely exhausted
(Li, 2015: 321).
Does the adoption of LWOP presage death penalty abolition in China? Is
LWOP better understood as a vehicle for enhancing rather than mitigating
penal severity? Or does it mean something else? Gaining a better account of the
adoption of LWOP in China has the potential to advance broader explanations of
the substitution and net widening dialectics of penal reform policies in places that
have retained both the death penalty and LWOP, as well as to offer lessons and
insights where LWOP adoption is considered in the future. In presenting China’s
2015 enactment of LWOP, this paper advances understanding of the relational
dynamics between death penalty abolition, mass incarceration, penal transforma-
tion and policy development that apply not only to China, but more broadly to
current conceptions about US and global penality.
72
Punishment & Society 21(1)
For the first time in both Western and Chinese scholarship, three empirical
sources on LWOP in China are drawn together and analyzed in this paper: legis-
lative documents, Chinese-language secondary materials and three published cases
of lifelong imprisonment in China handed down by the time of writing. Part I
begins by situating China within the context of LWOP around the world and
particularly in the US. Part II hones in on the Chinese case, providing background
on China’s penal system and then describing the particular legal features of
China’s LWOP statute. Through a synthetic empirical treatment, including the
three published LWOP cases to date, Part III explains the puzzle of LWOP in
China and offers comparative insights based on divergences globally and with the
US case. The Conclusion discusses implications and broader stakes for punishment
and society scholarship.
LWOP around the world and in the US
It has been estimated that 20% of countries have formal LWOP statutes on the
books (USF, 2012: 25). Despite its prevalence, a definitive and comprehensive
account of LWOP around the globe has not yet been published. The paucity of
reliable international research on LWOP is striking given the growing interest in
transnational carceral trends and penal diffusion (Cavadino and Dignan, 2006;
Frank et al., 2010; Grattet et al., 1998; Wacquant, 2009). Yet, writing such an
account about LWOP is a challenge. One obstacle to the undertaking is that
unlike, for example, capital punishment, where the unit of analysis is clear, iden-
tifying jurisdictions that maintain LWOP statutes can be tricky. In addition to
jurisdictions with formal LWOP penalties, researchers must consider a heteroge-
neous range of very long sentences that may be functionally indistinguishable from
LWOP; these sentences include indeterminate life sentences in jurisdictions with no
meaningful opportunity for release, “virtual life” sentences for a term of years that
exceeds a natural lifespan, and various forms of preventative detention (Van Zyl
Smit and Appleton, 2016).
A global account of LWOP must also make sense of competing historical and
contemporary currents at the national and regional level. As some countries like
China have moved to adopt LWOP, other jurisdictions have moved to curb or ban
the practice. Europe is a case in point. Portugal, for example, has had a prohibition
on life imprisonment since 1884, while other states such as Spain and Hungary
seem intent on maintaining or expanding long-term or whole-life sentences.
Meanwhile, in a series of recent rulings, the European Court of Human Rights
moved to limit LWOP throughout Europe, finding that prisoners have a “right to
hope” (Van Zyl Smit and Appleton, 2016).
While there is no apparent global norm around LWOP, the cases of Europe and
to a lesser extent Latin America (Lorca, 2016) suggest regional trends. In the case
of China, Asia lacks a strong regional judicial superstructure like the European
Court of Human Rights, but there are nonetheless reasons to consider the region
as a unit. For example, one narrative of LWOP is that it is introduced as a
Smith and Jiang
73
substitute for the death penalty; Asia remains ground zero for death penalty reten-
tion and annual executions worldwide (Johnson and Zimring, 2009). As a region,
Asia contains a slightly lower percentage of countries with LWOP than the world
average (USF, 2012: 29). However, since the correlation between LWOP and the
death penalty, while asserted, remains theoretically and empirically underexplored,
it is unclear what to make of these twin facts. In the case of China, neither region
nor retention of the death penalty is sufficient to explain the recent adoption of
LWOP. This fact is particularly clear in light of the case of Taiwan, China’s closest
cultural neighbor. Because of the two countries’ entwined politics and history,
Taiwan is sometimes used as a control for understanding changes in China.
Taiwan, which retains the death penalty, has not adopted LWOP. Taiwan’s
former president Ma Ying-jeou stated forcefully that Taiwan was not considering
replacing the death penalty with LWOP. Ma questioned whether LWOP sentences
were preferable to capital punishment from a human rights perspective
(Taipei Times, 2016).
If a regional view does not shed light on this analysis, it may be fruitful to
consider a case that initially...
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