On Due Process Of Death Penalty

Originally, due process could be traced to the idea of natural justice in English law. As a legal jargon, it first appeared in the Great Charter in 1215. When it was introduced to America by English colonists, due process has evolved from pure procedural due process to combination of procedural due process and substantive due process. But generally speaking, due process still mainly refers to procedural due process. After World Warâ…¡, the contents of due process are explicitly stipulated in most countries' law and relevant law documents of United Nations.The due process of death penalty refers to sets of methods, measures and steps explicitly stipulated by statutes according to the requirements of fundamental justice in order to prevent effectively procedural subjects and litigant participants from willfully exercising the judicial power and litigant rights in capital cases. Its concrete content is different in different periods and different countries. Nevertheless, relevant law documents of United Nations have been acknowledged and accepted by most countries, which some procedural contents in them embody sufficiently the rationale of fundamental justice of due process and thus become important parts of due process. The contents of the due process of death penalty include the contents of the due process as follows: 1. the doctrine against torture, cruel, inhuman or insulting punishment or treatment; 2. the doctrine against willfully or illegal detention; 3. the doctrine of presumption of innocence; 4. the doctrine of independent, public, fair, timely judgement; 5. the doctrine of defense; 6. the doctrine of the right to appeal the judgment to a higher court; 7. the doctrine of the right to be compensated in the event he has been sentenced by a final judgment through a miscarriage of justice; 8. the doctrine of non bis in idem. But besides these contents, due process of death penalty has some special contents as follows: 1. special standard of proof; 2. special doctrine of appeal; 3. special doctrine of receiving adequate legal aids; 4. special doctrine of seeking pardon, or commutation of sentence, and so on.Death penalty deprives of human's life. Life is the most fundamental right of a person. We should use death penalty cautiously because of the irreversibility of life. In substantial issues, we ought to reduce misjudged cases of death penalty. As for the procedure, we should strive for the due process of death penalty. Anyone who in possession of power may abuse his power. Persons who have judicial power and litigant rights such as judicial personnel, witness, appraiser and defender may easily abuse their power and rights during the application of death penalty. Theirs random judicial behaviors may do harm to the objectivity of evidences and facts, and lastly result in misuse of death penalty. Through various kinds of procedural design, due process of death penalty can effectively reduce random behaviors in the application of death penalty.Nearly all contents of due process of death penalty have been manifested in our statues. But there is a gap between the procedure of death penalty provided in our statues and the contents of the due process of death penalty no matter in what aspects, which mainly displays in following several aspects: 1. the torture and cruel, inhuman and insulting treatments can not be prohibited absolutely; 2. the phenomenon of willfully and illegal custody is rather serious; 3. the doctrine of presumption of innocence is not completely established; 4. the doctrine of independent, public, fair, timely judgment is not adequately fulfilled; 5. people facing death penalty can not get full and effective defense easily; 6. standard of proof of death penalty has not yet achieved the standard of clear and convincing evidence leaving no room for an alternative explanation of the facts; 7. appeal after death penalty trial of first instance is not mandatory; 8. the doctrine of non bis in idem is not sufficient fulfilled; 9. the scope of criminal compensation is too narrow; 10. the system of commutation and general pardon has not yet been established, the system of special pardon has not been activated. Just for this, it is necessary to perfect the ten aspects mentioned above in our country.