On July 22nd, 2011, the whole world was shocked by the back-to-back atrocities in Norway at the hands of one man—a bombing in Norway’s capital, Olso, and the subsequent mass shooting at a summer camp on the island of Utoeya on Lake Tyri, just north of Olso, less than two hours later. While the European and world media reacted with astonishment at the tragedy, the subsequent legal proceedings for culprit Anders Behring Breivik caused many countries to reflect on the morality and necessity of the death penalty. Absent capital punishment, Breivik’s 21-year imprisonment seems a feeble penance for the 77 casualties he caused—the greatest death toll on Norwegian soil since the Second World War. What many viewed as a judicial travesty triggered a clamor for the restoration of the death penalty among the Norwegian public (80 percent were in favor of Breivik’s execution); we should bear in mind their cries for proper restitution while exploring our own path for death penalty reform in China.

 

 

Since the abolition of the death penalty was first proposed in 1764 by the Italian jurist Cesare, Marquis of Beccaria-Bonesana, the debate has continued indefatigably until the present day. With the evolution of social concepts and thinking on human rights in the wake of the European Enlightenment, an increasing number of countries in the world have declared the abolition of the death penalty; one could even say this has become a “global trend.” The atrocities in Norway, however, have generated a cry for its return, prompting newspaper headlines.

 

Some countries have, in fact, abolished the death penalty only to reintroduce it later. The All Russian Constituent Assembly, convened shortly after the 1917 October Revolution, abolished the death penalty, but the Soviet Union later re-implemented it with Article 58 of the RFSFR Penal Code. Before 1950, it was abolished and reinstated two more times. Poland declared a moratorium on the death penalty in order to join the EU in 1997, but when he became president in 2005, Lech Aleksander Kaczyński (unsuccessfully) proposed the reintroduction of the death penalty for homicide. In addition, Nepal, Papua New Guinea, Zambia also abolished the death penalty before restoring it for certain crimes. To a certain extent, the call for its restoration seems to indicate that abolition rarely has popular support, and observing other countries’ vacillation between repeal and reimplementation can have significant value for our own practice and reform of the death penalty.

 

Having been sparked by the Norway atrocities, the controversial issue of whether to restore the death penalty has spread to many countries where it is no longer practiced, prompting a countertrend of the restoration of capital punishment. In our own reflections, we must contemplate the extent to which the abolition of the death penalty is advanced or civilized, bearing in mind the sudden clamors to restore it in countries that have ceased executing their worst criminals.

 

The call for restoration is indicative of the death penalty’s enduring role in public opinion, and indirectly suggests the absence thereof in the legislative or judicial processes of the countries which have seemingly prematurely ended it. It remains to be seen whether and to what extent the countries which have already abolished the death penalty can serve as a model for those who still retain it.

 

In fact, a closer look at the historical circumstances behind many specific instances of abolition reveals that it has often been the product of particularly powerful actors or exceptional circumstances where abolition of capital punishment seems to be an artificial, man-made reality, rather than a reflection of the overall trajectory of social evolution or a natural outcome in the evolution of jurisprudence.

 

As such, although certain countries have witnessed the abolition of the death penalty, their examples are not sufficiently ideal or archetypical to show that abolition is an epitomic milestone in the progress of civilization and respect for human rights.Rigid adherence to a program of abolition simply from bowing to the pressure of international trends without considering what is most beneficial for domestic rule of law is the moral equivalent of an ostrich burying its head in the sand to achieve safety. Therefore, if we are to observe the repeal of the death penalty in other countries to inform our own policy, we cannot simply consider the number of countries who no longer execute their criminals, but rather must examine causes and consequences of abolition in these countries; it is necessary to understand the political, socio-economic, and cultural underpinnings of abolition in these countries, the process by which the death penalty was abolished, and outcome vis-à-vis rule of law and social equilibrium.

 

Legislative and judicial reform of the death penalty should stem from empirical research rather than the indiscriminate imitation of other countries. Indeed, in the teleology of humankind, the death penalty, as a cruel deprivation of a criminal’s life, will one day become the artifact of a more savage civilization. The moratorium of the death penalty, however, should come as the natural fruit of social progress whereby execution as a deterrent to crime and means of societal restitution becomes vestigial. The weakness of the Norwegian penal system revealed that the abolition of the death penalty leaves citizens feeling indignant and disenfranchised when faced with serious violence and terrorist attacks. Abolition’s negative effects on social stability certainly merit our attention.

 

Repeal of the death penalty in China should follow steady, workable steps, and the ultimate decision cannot be made hastily. In fact, among the Chinese scholarship, only a minority has proposed immediate abolition while the vast majority believes that the death penalty should be reserved, but strictly controlled before finally being abolished. Considering the current social state, the momentum of our legal tradition and the continuingly high crime rate which will remain high for a long time, we cannot imitate other countries blindly; instead, it is necessary to embark on the steady path of slowly abolishing the death penalty while studying and weighing the situation on the assumption of its retention.

 

 

The Chinese version appeared in Chinese Social Sciences Today, No.223.Sept 15, 2011.

 

Translated by Jiang Hong