On The Application Of Death Penalty To Intentional Homicide

Intentional homicide is the crime that, among other crimes, frequently applies death penalty. Taking application of death penalty to intentional homicide as the topic for my doctor thesis, I'm aiming at pushing forward the legislative and judicial control on death penalty through this feasibility study on the restrictive use of death penalty for the crime.The paper is divided into three parts. Part one discusses the evolution of applying death penalty to intentional homicide; part two expounds on the application of death penalty to intentional homicide in new China; part three elaborates on the death penalty control of intentional homicide.Part one includes three chapters. Chapter I discusses the evolution of death penalty application to intentional homicide in ancient China. By researching into the legislation of death penalty application to intentional homicide in periods of slave society, of feudal society, of semi-feudal and semi-colonial society, and of Kuomintang's ruling, I discovered that a life for a life has been the principle of treating those who commit intentional homicide throughout the history of China, except a period called"Xiang Xing"punishment in remote ages during which no substantive punishment was given. Relevant punishments for intentional homicide, however, have been gradually lightened, and means of execution more and more civilized. For example, in the period of slave society, there were over 50 means of execution, e.g. boring a hole on the skull, pulling out ribs, burning to death, dismemberment and lingering death, shafts punishment, splitting into pieces by carriage, combined five cruel punishments, cutting down from the waist. In Qin dynasty (feudal China), however, there were over 20 means left. When it came to Tang dynasty, a period of full bloom in Chinese feudal society, there were only two left, which were to behead and to hang. In semi-feudal and semi-colonial period and during Kuomintang's ruling, under the influence of capitalist jurisprudence thoughts, criminal legislation began to adopt a modern legislative mode, and stipulations of intentional homicide started to be simplified. Chapter II discusses the evolution of death penalty application to intentional homicide in foreign countries in both ancient and modern times. Section one of Chapter II studies the application in ancient Babylonian Kingdom, ancient Roman Empire and early feudal society of Western Europe. Section two studies how to apply death penalty to intentional homicide accorded with the criminal law in the mediaeval Western Europe. Section three studies the application in early capitalist countries. Section four studies the application in modern foreign countries. Generally speaking, criminal punishments for intentional homicide, from time immemorial, were evolved from civil to cruel, then gradually lightened and civil, and finally abolished or not used. In Kingdoms of Larsa, Isin, Eshnunna so on, before ancient Babylonian Kingdom, and in feudal countries like the Frankish Kingdom in early Western Europe, punishments for intentional homicide were to compensate victims rather than death sentence. For instance, Article 41 of Lex Salica of Frankish Kingdom stipulates that"those who killed a free Frankish person or anyone who abided by Salica laws shall, being proved, pay 8000 silver coins in fines, which equals 200 gold coins". Even those who killed the earl were merely punished by a fine, as stipulated in Article 54 of the said law that"if someone killed the earl, he or she shall pay 24000 silver coins in fines, which equals 600 gold coins". Both Hammurabi Code of ancient Babylonian Kingdom and the Twelve Tables of ancient Rome conformed to the principle of retaliation, and those who committed intentional homicide would be sentenced to death, the execution, however, was not very cruel. It is the feudal criminal law in the mediaeval Western Europe that prescribed the most inhumane ways of execution, which included to behead, to bury alive, and to burn to death and so on. Early capitalist countries, under the influence of enlightenment thoughts, started to adopt the principle of conviction in accordance with law, and punishments for intentional homicide began to be lightened and more civil. Up till now, some modern capitalist countries no longer gave death sentence to crime of intentional homicide. Chapter III expounds on the issue of death penalty abolishment. The paper concisely reviewed causes and developments of death penalty abolishment, and by refuting reasons of abolishing death penalty, it reached a conclusion that our country shall not abolish death penalty for intentional homicide, yet we should use it prudently. It's said in the paper that the murderers illegally deprive others of their lives; therefore their actions are contradicted to the idea that life was non-deprivable, and thus their own lives are no longer non-deprivable. Life is sacred, yet it would no longer be and people's safety would hardly be guaranteed if we couldn't deprive of the lives of those murderers who deprive other innocent people of their lives.Part two includes three chapters, Chapter IV, V and VI. Chapter IV discusses our criminal policy towards intentional homicide. Criminal policy, according to the paper, is a general plan formulated to control (or prevent) crimes in view of current situations of crimes of the nation. The paper systematically discusses three criminal policies that could be applied to intentional homicide, which are combined punishment with leniency, adequate punishment or severity without any impartiality and death sentence can not be given in uncertain cases. In order to carry out the criminal policy of combining punishment with leniency, we should be cautious about the distinction between guilty and innocence, making sure that the guilty shall be punished, and the innocent released; and that punishments shall be accorded with the crime, if it's a felony, it shall be given a heavy sentence; a misdemeanor, a light sentence. The essence of combining punishment with leniency is to treat crimes differently. On one hand, fight against crimes and uphold the authority of legal system; on the other hand, try to minimize social confrontation, turn negative factors into positive ones, and achieve the unity of legal results with social effects. The policy that death sentence can not be given in uncertain cases refers to the cases where either death penalty carrying out immediately or death sentence not carrying out immediately would fit. Those cases shall be concluded with a death sentence with a two-year suspension of execution, rather than death penalty carrying out immediately. Chapter V discusses the judicial practice of death penalty on intentional homicide in our country. The paper looks back on the history of death penalty application to intentional homicide in three different periods - after the establishment of New China, since the reform and opening up and in the current stage; and discusses characteristics of intentional homicide cases given death sentences in recent years; and analyzes the problems occurred in the death penalty application to intentional homicide cases. Consequently, the following characteristics are discovered: firstly, intentional homicide case with a death sentence takes up a large percent of the total death sentences in China; secondly, those death sentences rank first that result from the killing caused by disputes in marriage and in other civil matters; thirdly, a large percent of death sentences is jointly committed intentional homicide; fourthly, there is a trend of violence in intentional homicide with a death sentence. The problem is, while adjudicating intentional homicide cases, judges give more considerations to the public indignation, and hence their favorite choice is death sentence. Chapter VI discusses principles and standards of death sentence application to intentional homicide. It is regarded that those principles shall be followed, e.g. cracking down first on key areas, dismissing thoughts as retaliation, setting reasonable limitations, and attaching great importance to circumstances of a crime and so on. The paper goes on to investigate the standards of death sentence application to intentional homicide, of death penalty carrying out immediately and of death sentence with a two-year suspension of execution. It is said in the paper that the standards of death penalty application to intentional homicide are that crimes committed shall be extremely serious, which shall be understood both subjectively and objectively. It means, objectively speaking, the criminal actions and consequences shall be extremely serious, and it imposes great danger to the society; and subjectively speaking, criminals are of great subjective malice of the mind and personal danger. The paper also considers that the standard of giving death penalty carrying out immediately is that the crime is so serious that no sentence other than immediately-carrying-out death penalty shall fit. It is listed in the paper five circumstances which death penalty sentences shall be given. The standard of applying death sentence with a two-year suspension of execution is that the crime is serious, yet there is no necessity to execute criminals immediately. Six circumstances are listed in the paper where there is no necessity to execute immediately.Part three includes two chapters - Chapter VII and VIII. Chapter VII elaborates the theoretic basis of controlling death penalty application to intentional homicide cases. It is pointed out in the paper that criminal judges should understand and act accordingly the following judicial views on no over-punishment; on a cautious approach to death penalty; on respecting and protecting human rights; and on handling relations between public opinion and applying death penalty in accordance with law . It is emphasized in the paper that unless relying not on death penalty could we minimize death penalty application in practice. Criminal judges should use death penalty cautiously, and be fully aware of the limitations and drawbacks of death sentences, and, in accordance with conditions, apply it cautiously and restrictively. Chapter VIII elaborates, from legislative, judicial and procedural aspects, means to control death penalty application to intentional homicide cases. In the aspect of legislation, the paper says that there are three flaws on regulating intentional homicide in the current criminal law, which are over simplified stipulations of facts of a crime, very large extent for discretionary action of sentencing, and taking death penalty as the first choice. It is suggested that besides stipulations of basic facts and punishments of a crime, the law should prescribe specific circumstances of when to give aggravated or alleviated punishments, narrow the extent for discretionary action of sentencing, and not adopt a legislative approach of taking death penalty as the first choice. In addition, it shall be considered as aggravated circumstances for intentional homicide and shall apply the most severe punishment when before, after or during intentional homicide, the defendant also commits crimes of rape, robbery, kidnapping, skyjacking and abducting and selling women and children. Death penalty shall not be sentenced to those who commit the said crimes without murder. The advantages are not only reducing crimes that apply death penalty on the whole, but also minimizing the occurrence of murder in the said crime. After contemplation, the author is attempted to give the following article for intentional homicide in the criminal law:Article X Crime of Intentional HomicideWhoever intentionally commits homicide shall be sentenced to life-long imprisonment or fixed-term imprisonment of not less than 10 years. When one of the following circumstances occurs, the person who intentionally commits homicide shall be sentenced to fixed-term imprisonment of not less than 3 years but not more than 10 years:(1) killing people out of righteous indignation;(2) killing people due to the victim's serious fault;(3) killing people according to the victim's will;(4) killing family members for righteousness, or killing evildoers for the people;(5) killing own infant in water; or(6) there are other mitigated circumstances.When one of the following circumstances occurs, the person who intentionally commits homicide shall be sentenced to death or life-long imprisonment:(1) killing people with malice aforethought or hiring people to kill;(2) killing people by especially cruel means or out of especially malicious intent;(3) killing more than two people;(4) the victim is under the special protection by law;(5) killing people in order to commit or cover up other crimes; or(6) there are other especially serious circumstances.In the aspect of jurisdiction, the paper brings forward that we should tighten the control on death penalty in three aspects. Firstly, strengthen evidential examination, making sure that death penalty shall not be applied in cases where there are doubts and the evidence is insufficient, and where the evidence are inconsistent, and where confession is extorted by torture. Secondly, fully utilize the circumstances of lighter or mitigated punishments. No matter how serious the crime is, provided that there are circumstances for lighter or mitigated punishments, death penalty shall not be applied. Thirdly, encourage the application of death sentence with a two-year suspension of execution. The crime is extremely serious and is conformed to conditions of applying death penalty though, provided that there is a possibility, death sentence with a two-year suspension of execution shall be applied rather than immediate execution.In the aspect of procedure, it is viewed to tighten the control on death penalty application in six aspects. Firstly, raise standards for approval and authentication for intentional homicide cases, heightening the standard from today's"the facts of a case are clear, the evidence is reliable and sufficient and without reasonable doubt", to"the facts of a case are clear, the evidence is reliable and sufficient and with absolute assurance". Secondly, eliminate the acceptance of evidence obtained through unlawful means to guarantee that illegally obtained evidence, especially those extorted by torture, shall not be accepted in deciding a case. Thirdly, establish the rules of eliminating the acceptance of hearsay evidence, which means witnesses, expert witnesses and on-the-spot investigators shall appear before court and be subject to cross-examination. Fourthly, abolish the system of requesting instructions of a case and the system of providing guidance for case adjudication, and not allow the court at a higher level to intrude into the adjudication of a case by a lower level court. Fifthly, enhance and highlight the powers and functions of the collegiate penal, and every member of the penal should read materials in the case. Sixthly, reduce and eventually abolish the system of deciding cases by adjudication committee through discussion. The paper deems that it is unscientific and unreasonable that members of adjudication committee, who do not read materials in the case and not adjudicate cases, decide the adjudication results. It is proved in practice that unjust and wrong cases are likely to arise when cases are decided by the adjudication committee. More than ten major unjust and wrong cases in recently years were decided by the adjudication committee. Therefore, the paper holds that the system of cases being decided through discussion by the adjudication committee should be abolished to reinforce the responsibilities of the collegiate penal. Lastly, the paper encourages establishing a system of prohibiting adverse retrials. It means when criminals were under-punished and cases were in effect, they shall not be retried.