Body Count Politics: Quantification, Secrecy, and Capital Punishment in China, Tobias Smith
Punishment can be discretionary and unpredictable, but it can also be counted and measured with technology and, in Foucault's term, governmen- tality. The frequency of capital punishment, for instance, is a sensitive matter in China, which executes a higher number of convicted criminals than any other country on earth.
Amid international criticisms, China centralized its death penalty review from the provincial high courts to the Supreme People's Court (SPC) in 2007. Drawing on seventy-three interviews with insiders of China's death penalty system and the analysis of capital cases, Tobias Smith shows how the shallow secrecy of capital punishment data is maintained in the judicial bureaucracy.China's continued resistance to international calls for disclosure of death penalty data stands in tension with its domestic policy of rapid capital punishÂment reform in the twenty-first century. The biggest reform took place in 2007, when the SPC reestablished central review of all death penalty deciÂsions. The central review process provides that every death sentence handed down at trial by a provincial High Court undergoes a final, independent, substantive review in Beijing that can take months or years to complete. Each case is assigned to one of five criminal divisions of the court based on a combination of geography and case type. A collegial panel of three judges from the assigned division manages each case. Apresiding judge on the panel reviews the full case record, conducts a final interview with the condemned, collects supplementary evidence, and, reportedly, sometimes even travels to the scene of the crime to clear up gaps in the record. The panel provides a recommendation to the head of the court division, who in turn submits a decision to the head of the SPC, who issues the final death warrant.
Death penalty reform has had a significant impact on capital punishment in China.
In a rare formal admission, the SPC reported that, in the year that it reinstituted central review, death sentences declined by 30 percent. Despite a lack of aggregated indicator data, recent estimates by both international and Chinese experts suggest that, while China remains the world's leading execuÂtioner state in absolute numbers, executions have dropped precipitously since 2007. The estimated decline in executions accompanies a raft of qualitative changes to death penalty law and procedure, including reduction in the number of capital-eligible offenses, heightened due process in capital cases, increased legal representation for capital-eligible defendants, and expanded guiding jurisprudence on capital sentencing.The reasons for the reform are overdetermined. Certainly, international condemnation may have played a role directly (by raising pressure on central leadership) and indirectly (by increasing awareness about the issue among judicial elites). But China's leaders also faced domestic pressures. China's “strike hard” state crime control policy expedited conviction and execution and removed SPC oversight of provincial court verdicts in capital cases. By the 2000s, national leaders became concerned that they lacked control over the lower courts, while Chinese citizens were shocked by the revelations of wrongful conviction and even wrongful execution. While China's central leadership can weather protracted international criticism, domestic challenges to state legitimacy and stability - such as mistrust of court power or a lack of central oversight over local court actors - represent a more significant existential threat.
In the midst of claims that China has made a “turn against the law,” death penalty reform is not an exceptional instance of a pivot to legal liberalism. Rather, death penalty reform fits with the flexible repertoire of seemingly democratic initiatives that authoritarian regimes have deployed to maintain a hold on political power in the twenty-first century.
Authoritarian regimes such as China have been particularly adept at harnessing the power of courts. Empowered courts in authoritarian regimes can increase state legitimacy, attract foreign investment, deflect criticism of human rights abuses, promote dispute resolution, and channel local information to leaders. These benefits may incentivize authoritarian states to increase domestic transparency, accountability, and indicator culture through law and courts as means to an end of continual rule. Death penalty reform has served as a vehicle for many of these domestic governance goals by increasing central control over local courts and boosting court legitimacy and consistency.But the domestic governance advantages that the Chinese state enjoys through death penalty reform and the wider principles that animate reform pose a challenge to the imperative of secrecy over death penalty indicator data. Prior to 2007, the central government could plausibly argue that because death penalty review was decentralized - handled by the provincial courts - Beijing did not possess precise national data on capital punishment. In other words, China could claim it did not keep count. Now that death penalty review is consolidated under the SPC in Beijing, this claim no longer holds; annual data is nothing more than the record of the SPC death penalty review rulings. [...]
Not only has central review made the excuse of unavailable data untenable, it has also surely made the logistics of actual data secrecy harder to maintain. To facilitate death penalty reform, the SPC drastically expanded and centralÂized its legal infrastructure. The SPC moved its criminal court operations to a separate high-rise office building in downtown Beijing to accommodate this new work. Between 2005 and 2007, the court hired large cohorts of new judges to oversee death penalty review. Hundreds of judges and administrators now staff the death penalty review division. Since condemned defendants may also hire counsel to represent them on review as part of this new process, thousands of lawyers potentially visit the building every year.
The SPC established a single site in order to consolidate death penalty review. In the process, the SPC also consolidated national-level data as a work product.Centralization has thus produced a court environment of extreme contraÂdiction. Since all cases up for review carry capital sentences, the most basic descriptive statistic from this court - total caseload - is an indicator that China has designated as a top secret. Straightforward work products such as court dockets and decision logs are now repositories of national secrets. On the one hand, death penalty review promotes centralization and indicator culture and increases opportunities for transparency. On the other hand, death penalty review increases the amount of aggregate data that must therefore be kept under wraps. And without aggregate data - most importantly, a denominator - a whole host of other rates, proportions, and disparities are incalculable. Conversely, any rate, proportion, or disparity that might be used in conjuncÂtion with a tally to derive a total denominator must also become a secret. [...]
States maintain plenty of secrets, but not all state secrets are alike. In this article, I have shown that China's annual execution figure is a secret with certain particular characteristics: most notably, it is a shallow secret - one whose existence and rough dimensions are widely known to all parties. Despite international criticism, the Chinese government reaps multiple politÂical benefits from maintaining shallow secrecy over its death penalty data. It can engage in strategic doublespeak, sending different messages about its reliance on capital punishment to domestic and international listeners and crafting mixed signals through strategic opacity. And it can maintain policy flexibility, leaving open the possibility of quietly increasing executions without facing immediate global censure over a rising indicator. These benefits may encourage state leaders to continue a policy of shallow secrecy, even if maintaining secrecy produces tensions with other domestic policy objectives related to law.
China's death penalty statistics are not only shallow secrets; they are also legal secrets. And as China's leaders increasingly turn to legal reforms as strategies to improve social stability, government accountability, and state efficiency, maintaining shallow secrets in the legal domain becomes increasÂingly difficult. Unlike shallow secrets in other political areas - such as economic production, natural resources, or military capacity - shallow secrets in law stand in direct conflict with the values of legal transparency and judicial responsibility that China's state leaders want to deploy in domestic governÂance. While scholars of authoritarian legality traditionally dwell on the theorÂetical contradictions of illiberal legalism, the body count politics of death penalty secrecy pose a practical, rather than a conceptual, limit on China's ability to harness indicator culture and quantification for instrumental goals in the domestic legal sphere.
Death penalty secrecy poses a unique challenge to legal reform because it is an instance of secrecy about total court outputs. While secrets about individÂual cases are easy to keep, the example of China's capital punishment data makes clear that it is extremely difficult to maintain secrets about institutional statistics in a highly centralized, integrated bureaucratic legal system. Now that the SPC reviews all death penalty cases, national death penalty figures have become aggregated as a matter of course. Simple descriptive data - such as the number of cases on the docket for the death penalty review divisions of the Court - effectively become a top national secret. While death penalty secrecy is a national directive, the burden of implementing opacity falls on the courts, frontline institutions that must operationalize competing policy priorities.
Tracing the contours of secrecy shows the impossibility of disentangling the qualitative from the quantitative dimensions, as well as the politically meanÂingful aspects, of legal acts. Publishing a court case, retaining legal counsel, and notifying an individual that an execution has taken place do not appear to be numeric activities. But, in a centralized and uniform legal system, each of these actions is transformed into a data point that may be tallied to arrive at a total. So long as that total is a secret, any new uniform procedure becomes a threat to data secrecy, producing the potential to derive a denominator and, thus, a statistic of social and state significance.