A few days ago, the National People's Congress Standing Committee (NPCSC) revised the Organic Law of the People's Courts, and made it clear that from June 65438+ 10/day, 2007, all the power to approve death penalty cases was returned to the Supreme People's Court for unified exercise. By then, the 20-year history of authorizing local high courts to exercise the right to review some death penalty cases will end.
In addition, according to the requirements of the Supreme Court, all death penalty cases of second instance have been heard in court since July 1 2006. He Weifang, male, was born in 1960. He is a visiting scholar at Harvard Law School. He is currently a professor at Peking University Law School.
The unjust case of Nie Shubin, Henan Province, which was exposed last year, caused a sensation. There are many similar unjust, false and misjudged cases in previous years, such as Du case in Yunnan and She Xianglin case in Hubei. In addition, it is reported in Hunan that the person who was killed in that year was still alive after being executed in 17.
Can you avoid the wrong killing of the death penalty? How can we carefully judge everyone involved in the death penalty and not make that mistake again?
How to treat the death penalty cautiously has become the focus of national and even world attention. Should we understand the death penalty more deeply and ask a seemingly ultimate question-can the death penalty be abolished?
Many people think that this is a scholar's view, which is absolutely impossible. Let me demonstrate my point of view.
A
The death penalty is hard to deter passionate killing!
According to national statistics, more than 70% of the killings occurred between acquaintances. A beautiful girl was chased by a boy in Hangzhou, Zhejiang. The girl doesn't like the boy, so she doesn't get along with him. Boys killed girls in front of the canteen. What are the reasons why acquaintances kill each other? In fact, the reason often lies in the temporary passion, the passion to kill, and at this time there are things that are difficult to kill. Things like this can happen between strangers.
Many criminals have had similar experiences. When they recall their criminal experiences, they often say: At the moment of killing, their minds were blank and they knew nothing.
According to the information provided by Camus, a number of hanged prisoners were investigated in Britain in the early 20th century. Hanging in the most prosperous market, naturally there are many people watching. The visitors present asked the criminals who were about to be executed: "Have you ever seen the scene of hanging before?" 70% of people answered yes, and some people said they had seen it more than once. In other words, watching others get killed is not shocking to those who want to kill again in the future. They should kill and kill. Statistics of some countries that have abolished the death penalty show that the situation has not changed much before and after the abolition of the death penalty. Slovenia is a country along the Baltic Sea. After the abolition of the death penalty, the number of homicide cases actually decreased. gate of a lane
B
The death penalty encourages crime.
To give a simple example: most crimes of burglary are accompanied by murder; In the case of general economic crimes without the death penalty, it is often just to grab money and run away. But now robbery is the death penalty, and the big deal is a life, so it is a crazier crime.
During the "strike hard" period, rape was also punishable by death, and as a result, rape was accompanied by the killing of the rape target. Because is it not death? Some people say that killing one is enough, and killing two makes one. This is actually encouraging crime, encouraging more and more people to commit crimes not only once, but also many times, not only killing one person, but also killing more people. Therefore, to some extent, the death penalty not only can not curb crime, but may also stimulate more crimes.
C
Death row inmates also have personality and dignity.
Everyone begins the process of death arrival from birth. Death is almost equal to each of us, and we will all die in the future. Existentialism believes that the fear of death is the source of human creativity. Many of people's creations are related to their feelings of being reluctant to part with the world. However, the fear of natural death, no matter how great, is not comparable to the fear faced by people sentenced to death.
I read the record of a friend named Li Guiren. In his early years, he was a master of China Renmin University, studying modern and contemporary literature, and was almost sentenced to death. Because of his knowledge, the night before the execution in prison, he was assigned to do ideological work, which was particularly painful. On one occasion, one of the prisoners on death row accompanied by Li Guiren was a policeman. He was depressed the night before and couldn't control himself completely. How can you convince him of this situation? Had to tie him up. That look on his face is terrible.
Generally speaking, the death penalty procedure is very complicated. The court of first instance pronounced "death penalty", but not "immediate execution". The parties may also appeal to the High Court. Waiting for the outcome of the appeal is the most disturbing time. Criminals hope for a miracle and think it is unlikely to happen. They yearn for life, expectation and fear until the presiding judge tells you, "The appeal is rejected ..." This is a torture way.
D
Life is more important than money.
Economic crimes such as corruption and bribery belong to the category of wealth. Those people didn't play tricks on people's lives, didn't burn and rob them, they just wanted to take the money for themselves and get it by improper means. When the amount of economic crimes is huge, they are sentenced to death, which means that when we measure life and money together, our balance seems to be more inclined to money than life.
I think the best way is to deprive him of his property rights because they like money too much. Let them have no money all their lives, and they will suffer all their lives. Is it reasonable to take their lives?
Only by becoming a god can one resist temptation. Money is a good thing. Who doesn't need money? Some officials' children go abroad to study, and the money is covered by others. Who doesn't like good cars? The bigger the house, the smaller the car. Who doesn't like beauty? This is the result of human nature, and you have no other choice but to rely on a strong supervision mechanism. As long as there is a problem, it will be exposed and fixed on you, so that you dare not do bad things.
The system is not established in front, but it is only shocking behind. Although it can calm people's anger, it is useless in the long run. We should strengthen the system construction, instead of superstitious death penalty.
E
No matter how perfect the system is, it can't avoid manslaughter.
Mr She Xianglin from Hubei came to Beijing last year, and I had the opportunity to meet him. He stayed in prison for 1 1 year, during which his mother also died. Mr She Xianglin showed me his finger. One of his fingers was only half broken, and it was tortured. He said, "He Laoshi, I can't stand it. I won't keep you awake for days and nights, beating you, humiliating you and wanting to lie down. People's will is on the verge of collapse. What should you do? "
Montaigne, a French philosopher, said: "Extorting a confession by torture only examines a person's endurance, not the truth." Can bear not to tell the truth, can't bear to tell lies. This statement seems a bit excessive, but there are indeed many cases of extorting confessions by torture in reality. Some people did commit crimes. If you don't want to say it at first, just fight and say it as soon as you fight; Some people say it when they are dead. We do have many cases solved in this way, but we must see the risk of this way: people may be beaten to confess.
We should think deeply about how to curb extorting confessions by torture. However, as long as the death penalty is retained, there is no way to completely avoid making mistakes on the death penalty issue. The head is not much better than leek. You can be reborn after being cut, but you can't recover after being killed. This mistake is irreversible. So the best way is not to kill people.
F
Life imprisonment is also a very severe punishment.
In the United States, people have been sentenced to hundreds of years in prison, and they can't be released on parole, or they can be released on parole, but they can only be released on parole once every five years, and each parole shall not exceed five years, which means that this person will stay in prison for the rest of his life. On the surface, such life imprisonment seems to be lighter than the death penalty (because he can live), but according to Beccaria and other great thinkers, it is actually a heavy punishment to sentence a person to life imprisonment, which lies in the continuity of time rather than the temporary severity. The death penalty makes a person get rid of pain quickly, but it is actually very painful if he stays in prison all the time. There is no point in killing a criminal if he has no conscience at all; If he still has a little conscience, he can arouse his atonement mentality. Prison itself is a symbol of detention. Every time people pass by here, they know that there are a group of murderers in it, which will cause a more serious shock to society. We can even let them work, and the condemned prisoners compensate the society and the families of the victims through labor, so that the state can compensate the families of the victims with the labor value created by the condemned prisoners. Some family members feel that criminals must be killed, so they will get nothing. If the value created by the murderer is given to the families of the victims as long-term compensation, their hatred may be changed.
G
Abolishing the death penalty is the embodiment of civilized punishment.
From barbarism to civilization, the embodiment of punishment is from violence to education, from punishment to non-punishment.
The death penalty has aroused widespread concern. Anyway, as long as there is a mother in this world, such as Nie Shubin's mother, crying for a child who died unjustly, each of us will have no peace of mind.
Related reading 1
Use the death penalty with caution, but it cannot be abolished.
Xiao Yang, president of the Supreme People's Court, said that the current abolition of the death penalty is not in line with the national conditions, so it is impossible to abolish the death penalty at present. China's criminal law clearly stipulates that the death penalty should be retained, but it should be used cautiously to protect human rights.
At present, the crime rate in China is still very high, the people have high expectations for the death penalty to deter crime, and the support rate for retaining the death penalty is also very high. Therefore, retaining the death penalty does have its realistic rationality. However, we also see that the abolition of the death penalty is a worldwide trend. By 2004, 85 countries had abolished the death penalty, and at least 39 countries had not carried out the death penalty for 65,438+00 years or more. It can be said that gradually reducing the application of the death penalty and eventually abolishing it has been widely recognized by the world.
But we still have a long way to go to gradually reduce or even abolish the death penalty.
Related reading 2
The Procedural Cost of Death Penalty in the West
British scholar Hood once regarded the high cost of the death penalty system as one of the arguments for abolishing the death penalty in his book A Global Survey of the Death Penalty.
Indeed, in some western countries that still retain the death penalty, in order to ensure the quality of death penalty cases, the price they spend is almost amazing. Take the United States as an example, in order to prevent manslaughter, many relief procedures have been set up for death penalty cases, so that prisoners on death row will not be executed for a long time. In 2004, 59 prisoners executed in the United States spent an average of 1 1 year in prison. According to statistics, a prisoner on death row in Florida spends $24 million from being sentenced to death to being executed, while a prisoner on death row in Texas spends an average of $2.3 million a year, which is equivalent to the cost of holding three ordinary prisoners for 40 years. It can be seen that under such a cautious institutional arrangement, the death penalty far exceeds a bullet. Far from being the lowest cost penalty, it is definitely the highest cost.
Related reading 3
China will be established.
The largest criminal court in the world.
A Supreme Court judge who is participating in the training on the content of death penalty review said that up to now, the Supreme Court has selected three groups of judges, with a total number of more than 200. Together with the original 60 judges, the number of judges is close to 300. Since July this year, judges who have passed the selection have begun to receive intensive training from the Supreme Court. The Supreme Court will finally elect 500 judges to form five criminal courts. Once established, it will be the largest criminal court in the world.
As early as the right to review the death penalty was still in the motion stage, Beijing Silent Law Firm camped near the Supreme Court and hung up the signboard of "Death Penalty Research Center". There are many similar law firms. Lawyers are aware that after the right to review the death penalty is taken back, all death penalty cases in China will be reviewed in Beijing, and some criminals' families will also come to Beijing to fight for commutation, and the corresponding sources of cases will be greatly increased. Lawyers in many law firms want to change the previous practice of unwilling to represent the death penalty because of low profits and develop into characteristic projects.
interconnection
Decentralization process of death penalty approval power in China
1980 In February, the National People's Congress Standing Committee (NPCSC) decided that the Supreme Court could authorize the High Court to approve cases of serious crimes, such as murder, rape, robbery, explosion and arson, which should be sentenced to death.
198 1 in June, the National People's Congress Standing Committee (NPCSC) adopted a decision on the right to approve the death penalty, stipulating that during the period from 198 1 to 1983, people were guilty of murder, rape, robbery, explosion, arson, poisoning and destruction of traffic, electricity and other equipment. Or the intermediate people's court sentenced the death penalty in the first instance, but the defendant did not appeal. With the approval of the higher people's court, the higher people's court sentenced the death penalty, but the defendant did not appeal, which was not approved by the Supreme People's Court.
1983 In September, the National People's Congress Standing Committee (NPCSC) officially wrote the above-mentioned "decentralization plan" of the death penalty approval power into the newly revised Organization Law of the People's Court.
Starting from 199 1, the Supreme Court has successively delegated the power to approve the death penalty in drug trafficking cases to the high courts of Guangdong, Guangxi, Sichuan and other five provinces.
1In September 1997, the Supreme Court once again delegated the power to approve the death penalty in the form of a "notice".