Death is too high a price for Wu to pay
The death sentence handed last month to businesswoman Wu Ying for fraud has prompted a rare unanimous plea for mercy from the mainland public, and rarer still, some rational discussions on the use of capital punishment.
If the public's concerns are heeded, this could perhaps also provide impetus for a bolder change to death sentence reviews in the upcoming amendment of the Criminal Procedure Law.
The 29-year-old Wu, who started her own hair salon at the age of 15 and went on to become the billionaire owner of Bense Holding Group in Zhejiang, was arrested in 2007 and convicted in 2009 for illegally collecting public funds worth up to 770 million yuan (HK$947.6 million) with the intention to defraud.
More recently, on January 18, the Zhejiang High Court upheld the death sentence, shooting down defence lawyers' arguments that Wu was only borrowing money for an overambitious business that ultimately failed. Now her life is in the hands of the Supreme People's Court, which will hold a final review of the death sentence soon.
Wu's case has drawn widespread sympathy from the mainland public for several reasons. Compared to most suspended death sentences imposed on corrupt officials in recent years, Wu's punishment seems unnecessarily harsh.
It is also a well-known fact that, due to policy restraints, it is very difficult for private mainland entrepreneurs to obtain loans from banks. The line between private borrowing and illegal fund-raising has become dangerously blurry.
But one fundamental question seems most disturbing to the public: why must someone die for committing an economic crime that did not physically harm others?
The authorities have taken various steps in recent years towards easing back on capital punishment, in line with international trends. One such step in February last year was cutting the list of crimes punishable by death to 55 from 68. Those trimmed off the list were mostly economic and non-violent crimes where the death penalty was rarely used.
The supreme court has also regained the final say on all death sentences, with a new review procedure introduced in 2007, adding an extra layer of judicial oversight before anyone is executed. Still, China ranks No1 in the world in terms of the number of crimes punishable by death and the number of annual executions - estimated in the thousands by some human rights groups. The actual figure remains a state secret.
The authorities have said their ultimate goal is to abolish capital punishment - but the process should be gradual. Their rationale for this is that the crime rate is still high, the country is still in an economic transition and the public still rely on the death penalty as a just punishment for certain crimes.
When the penal code was passed in 1979, there were 28 crimes punishable by death, and more than half were counter-revolutionary crimes. In the 1980s and 1990s, when combating crime was the authorities' top priority, more crimes were added to the death list, including economic crimes such as forgery and fraud.
Last year's penal code amendment marked the first time that the list was shortened, and the consensus was to start with non-violent economic crimes. However, for unspecified reasons, fund-raising fraud was not included in the 13 crimes taken off the list.
Nevertheless, in Wu's case, there are several simple grounds on which the supreme court could stop her execution. First, the 11 so-called victims of the fraud were all friends and colleagues of Wu, making the transactions private - meaning the charge against her was too severe. Further, none of them complained about being defrauded. Wu was also operating her business and trying to repay loans up to the moment she was detained. Lawyers argue that this is, at most, a lesser crime of illegal fund collection or, more appropriately, a massive civil dispute.
Second, given the authorities' policy in recent years of reducing death sentences for economic crimes, Wu would be a test case to prove this commitment. Capital punishment is a final measure with no room for amends, and there are already doubts on whether fund-raising fraud should be punishable by death. Even if Wu is guilty and her penalty is right in the eyes of the law, why must she be immediately executed rather than given a two-year suspended sentence like many corrupt officials and even some killers?
There is also, of course, wide speculation that many local officials wanted Wu dead because while in detention she gave police the names of corrupt officials she had bribed. This raises more questions. Why is her co-operation not considered a sentence-mitigating factor? Who exactly are these officials she mentioned? And what happened to them? The secrecy surrounding this part of the trial has cast doubt on its fairness.
Beyond Wu's case, there is also one more thing authorities could do immediately to further limit use of the death sentence as the Criminal Procedure Law is due for revision in March. In the first proposed draft amendments, it was stipulated that when the supreme court reviewed a death penalty imposed by a lower court, a judge 'must' interview the defendants - a move welcomed by mainland's rights advocates. But in the second draft, the word 'must' was changed to 'may'.
This step backwards has baffled many, and it is certainly a departure from the path to reducing the number of death warrants - a path that authorities have already started to take, albeit slowly.