[author]WU Yuhao
[content]
Yuhao Wu
Assistant professor of Peking University Law School
1. Introduction
The deterrent effect of the capital punishment has been at the centre of the debate on the retention or abolition of the capital punishment. Among them, the retentionist side firmly believes that the capital punishment has an effective deterrent effect. China's existing judicial documents also explicitly cite "the correct use of the capital punishment as a penal instrument to combat serious criminal offences and effectively curb the momentum of rampant and spreading criminal activities" as an important reason for retaining the capital punishment. On the other hand, the abolitionist side is sceptical about the deterrent effect of the capital punishment. For example, a scholar in the United States argues: "Criminals are not economists, and the calculation of risk is not carried out in their minds according to a rational method that we can perceive. To assume that any range of penalties, including or excluding the capital punishment, will affect his behaviour is to ignore the very nature of the human being with whom we must cope".
However, the debate in the existing literature on "whether the capital punishment has a deterrent effect" remains at the level of conceptual deduction and logical assumptions. In fact, the argument as to whether the capital punishment has a deterrent effect should be a question of fact that needs to be tested by empirical research. In the absence of relevant empirical material, purely theoretical extrapolations will not lead to convincing conclusions.
Of course, there are objective and external reasons for this situation, one of which is that the number of executions in China has not yet been made public, and the lack of factual information, which is an important variable, has obviously hindered in-depth empirical research on the capital punishment. However, on the one hand, as discussed below, even in the United States, where capital punishment data are fully publicised, there are the same methodological and theoretical difficulties in verifying whether the capital punishment has a deterrent effect; on the other hand, even in the absence of data on capital punishment executions, changes in China's relevant capital punishment policies can likewise provide methodological support for overcoming the obstacles involved in carrying out empirical research on whether the capital punishment has a deterrent effect. This paper will take this as a clue to explore the question of whether the capital punishment has a deterrent effect in China.
It is worth noting that, while the deterrent effect of the capital punishment is central to the debate on its abolition, it is only relevant to utilitarian considerations of the capital punishment, and if viewed in isolation, does not constitute a sufficient condition for its abolition. For example, even if it is recognised that the capital punishment has a deterrent effect on potential offenders, this does not mean that it must be retained in legislation, and other disadvantages of the capital punishment, such as inhumanity and the lack of possibility of redress, can also be sufficient grounds for abolition. Of course, this kind of content is beyond the scope of this paper for the time being.
This paper first discusses the controversy over whether the capital punishment has deterrent effect and the difficulties to be overcome in verifying its deterrent effect from both theoretical and empirical studies, then it analyses the link between the restriction of China's capital punishment policy and the phenomenon of macro-crime by taking the retrieval of the right to review the capital punishment, which is an important change in the history of China's criminal policy, as an entry point, and finally the relevant empirical findings will be explained using criminological theories.
2. The controversy over whether the capital punishment is a deterrent and the challenge of validation
2.1 A long history of theoretical debate
In the history of the development of human society, the activation of the right to the capital punishment has for a long time been an important means for rulers to demonstrate the deterrent power of punishment. In criminal legislation, the offences covered by the capital punishment and the methods of execution are quite extensive. For example, in the Laws of Qin, there are 12 types of execution methods: "razing the three clans, beheading, killing the corpse, lording over the head, splitting the head of the car, inflicting the five punishments, abandoning the city, clansmen, decapitating the waist, tearing off limbs, disembowelling the body, and throwing up thistles". （夷三族、斩、戮尸、枭首、车裂、具五刑、弃市、族、腰斩、磔、体解、蒺藜）The Code of Hammurabi of the 18th century B.C.E. also used the capital punishment and physical punishment as the main methods of execution, and the capital punishment was applied not only to the crime of murder, but also to the crimes of witchcraft, false accusation, theft, adultery, and so on. At the same time, in terms of the method of execution of the capital punishment, until the modern era, countries around the world generally used public execution, and the execution of the capital punishment became a way of popularising the law among citizens. Rulers made the cruelty of the capital punishment public with a view to deterring potential offenders.
It should be said that the long-standing belief of rulers in the deterrent effect of the capital punishment as an important tool in the management of crime has deep cultural and theoretical roots. In the history of legal thought in China, Guan Zhong, as the founder of the Legalists, had a particularly profound influence on the views of human nature on later generations of Legalists. According to Guan Zhong, human nature or human feelings are universal, and "no one wants to benefit but harms". Therefore, in the configuration of punishment, the monarch should make full use of this human nature, the capital punishment as a means of deterrence and control of human ministers, to manipulate the power of life and death in the palm of the hand, that is, "the right law is straight, the crime is not pardoned, the killing will be believed, the people are fearful and afraid.--punish the offence to punish, kill the forbidden to vibrate". Guanzhong based on the nature of human beings to avoid harm and deduce the criminal policy advice directly affect the later criminal legislation. According to the Book of Han - Criminal Law Zhi, when Shang Yang was assisting Duke Xiao of Qin in legislating, he advocated that only heavy penalties could curb crime, and thus the types of capital punishment should be greatly increased. "To carry out punishment, weigh the lesser ones; if the lesser ones are not born, then the heavier ones have no way to arrive." "To prohibit adultery and stop excesses, there is nothing like heavy punishment." Since then, although the rulers, to a certain extent influenced by the Confucian ideology of benevolence and governance, have carried out reforms in the penal system of leniency, the criminal policy concept that the capital punishment has the strongest deterrent effect has never been fundamentally shaken.
However, our country also has a long history of questioning the deterrent effect of the capital punishment. One of the most popular is the saying that "people do not fear death, so why should they fear death". In today's academic terminology, this means that for those who commit serious crimes, death is the expected outcome, and because the capital punishment does not increase the expected cost of their crimes, it does not deter crime. Indeed, this view has also been demonstrated in important historical events. For example, during the uprising of Chen Sheng and Wu Guang, the harsh capital punishment policy of the Qin Dynasty did not deter crime; on the contrary, in the face of the expectation that "all those who fail to meet the deadline will be beheaded", Chen Sheng and Wu Guang responded by saying, "Now that the capital punishment is also a capital punishment, and so is the plan of the country, is it possible to wait for the capital punishment and die for the country?" From this, we can see that the deterrent effect of the capital punishment has not played the expected role.
The deterrent effect of the capital punishment has been further systematically discussed since modern times, along with the rise of Enlightenment thinking. Among others, the Italian criminalist Beccaria challenged the idea that the capital punishment was a deterrent after comparing it with life imprisonment. He states, "It is not the intensity of the penalty that has a greater effect on the human mind, but its continuity." And the spectacle of executing a death row inmate, as gruesome as it is, is only temporary. In fact, "in the eyes of most people, capital punishment has become a show, and, in some cases, it is viewed with a sense of indignant pity -- rather than the wholesome awe that the law hopes to evoke." Thus, the capital punishment does not produce the desired deterrent effect. The English jurist Bianchin also opposed the blind fetishisation of the deterrent effect of the capital punishment. He pointed out that what really works on the mind is the imagination about punishment, and that in fact punishment does nothing more than arouse that imagination. The capital punishment is an exemplary punishment for most people, and it is not as harsh as it appears to be for the murderous types who commit the most brutal crimes. Indeed, for these people, the capital punishment helps them to end a painful and dishonourable life in a speedy manner. The capital punishment is therefore far less of a deterrent than a long term sentence of liberty.
Of course, there are commentators who still believe in the irreplaceable deterrent effect of the capital punishment. The British philosopher Mill, for example, pointed out that no other punishment has left such a deep imprint on the human imagination as the capital punishment. In comparison to the capital punishment, any punishment is lenient, since only the capital punishment necessarily aggravates human suffering. The capital punishment therefore had an undeniable deterrent effect.
2.2 Results of the empirical evidence of divergent opinions
However, as noted above, whether the capital punishment is a deterrent should fundamentally be a matter of factual rather than value judgement. Many of the theories mentioned above, although they provide a view of the deterrent effect of the capital punishment in the form of logical reasoning, still contain many unproven factual assumptions. One obvious problem is that social scientists themselves do not have insight into what is really going on in the mind of the perpetrator when deciding whether or not to commit a criminal act, and therefore do not know with certainty the extent to which the penalty actually works in deterring crime. Thus, without empirical research information, the discussion of the deterrent effect of the capital punishment will lack a solid foundation.
In modern times, the literature on the systematic study of whether the capital punishment has a deterrent effect, using statistical methods and criminological theories, has focused mainly on the United States. This is due, on the one hand, to the high level of transparency of crime and criminal justice data in the United States and, on the other hand, to the special context of the capital punishment system in the United States. Specifically, in 1972, the United States Federal Supreme Court, in Furman v. Georgia, held that the capital punishment was an exceptionally cruel punishment and therefore violated the Eighth Amendment to the United States Constitution. At the same time, in the 10 years prior to that judgement, state courts in the United States had been afraid to impose the capital punishment for fear that it would be unconstitutional. As a result, from the late 1960s to the mid-1970s, not a single execution was carried out in the United States. In 1976, the United States Supreme Court overturned the 1972 decision that the capital punishment was unconstitutional in another judgement, Gregg v. Georgia. In that judgement, the United States Supreme Court changed and made clear its position that the imposition and application of the capital punishment does not violate the Eighth Amendment to the United States Constitution, as long as it complies with due process. Since then, the capital punishment has once again been applied in the United States. From 1976 to 2010, a total of 1,234 people were executed in the United States. In terms of space, the legislative status of the capital punishment is not the same in each state of the United States, as each state has relatively independent legislative power. From 1976 to 2010, 10 states did not apply the capital punishment, 29 states have always permitted its application, and 11 states have undergone corresponding legislative changes, with some abolishing the capital punishment and some choosing to apply it again during this period.
The above intricate institutional background provides a certain convenience for the empirical research on whether the capital punishment has a deterrent effect to be carried out with the United States as the sample for analysis. By combing through the relevant literature, it can be found that American scholars have studied whether the capital punishment has a deterrent effect mainly from the following two aspects. (1) Comparing the states that allow the application of the capital punishment with those that do not, to determine whether there is a significant difference between the two different types of states in terms of the value and development trend of the murder crime rate, and applying the relevant statistical methods to determine whether this difference is caused by the capital punishment system. (2) To analyse the relationship between changes in capital punishment policy and murder rates in the country as a whole or in a particular state against the backdrop of a time series, in order to determine whether the murder rate decreases or increases after the application or abolition of the capital punishment, and thus to analyse whether the capital punishment has a deterrent effect. Of course, in order to overcome the problems of "omitted variables" and "reverse causation" that will be mentioned below, and under the influence of statistics and econometrics, many literatures adopt different empirical research designs, however, according to these different research ideas and model settings, the conclusions are also very different. However, according to these different research ideas and model setups, the conclusions reached are also very different.
Among them, the American scholars Jerzy Vakhsh and Rubin, using data on the murder rate at the county level in the United States as the explanatory variable and the number of executions in that year as the explanatory variable, concluded that in the United States, each execution of the capital punishment would reduce the number of murder offences by an average of 18.
The conclusions of the study by Jerzy Vakhsh and Rubin caused a major reaction in the American criminological community. However, some scholars immediately pointed out the problems involved. The American scholars Donohue and Wolfers pointed out by repeating the empirical research methodology: "The existing evidence that the capital punishment has a deterrent effect is so fragile that the slightest change in the statistical model can lead to completely opposite conclusions, and therefore those annual fluctuations in the murder rate are most likely to be caused by other factors rather than as a result of the deterrent of the capital punishment. " After applying more rigorous econometric analysis, American scholars such as Kovar state that "the relevant statistical results prove that the capital punishment does not deter potential offenders from committing murder. Policymakers should stop assuming that the capital punishment is a deterrent to murder and use more rational and effective ways to deter crime."
It follows that even in the United States, where crime and criminal execution data are fully publicly available, the deterrent effect of the capital punishment remains in a position where it cannot be fully proven. However, this cannot be directly used to judge whether the capital punishment has a deterrent effect in China. On the one hand, there are significant differences between the two countries in terms of cultural traditions, social environments, and public acceptance; on the other hand, there are also obvious differences between the two countries in terms of how the capital punishment is applied and carried out. In the United States, the capital punishment is only applied to murder offences with aggravating circumstances, so the discussion on whether the capital punishment in the United States has a deterrent effect is narrowed down to the core issue of "whether the capital punishment can deter murder offences". In China, however, at this stage, the capital punishment is applied to a wider range of offences, and a considerable part of the capital punishment can be applied to non-violent crimes, so the scope of whether the capital punishment has a deterrent effect is greatly expanded. At the same time, the U.S. capital punishment execution process is also significantly different from the execution process in China. In the United States, the imposition of the capital punishment does not mean that the death sentence will be carried out immediately, in which the convicted offender will be placed on a capital punishment execution waiting list, waiting for an executive officer to sign the execution order, which is a rather long and uncertain process. Empirical data show that only about 15 per cent of death row inmates are eventually executed. Many offenders have their natural lives ended before execution. It is this uncertainty that makes it impossible to find out whether the capital punishment has a deterrent effect. In contrast, however, since death sentences that are reviewed and passed in this country have the certainty of being executed within a short period of time, this part of the problem encountered in the relevant studies in the United States is not encountered in the relevant studies in this country.
As a matter of fact, as early as the 1990s, some scholars in China concluded that the capital punishment had no deterrent effect after studying the relationship between the expansion of the application of the capital punishment and the crime rate during the "Strike" period. The reasons for this were: (1) the proportion of homicide, assault, rape and aggravated burglary (all of which carry the capital punishment as the legal maximum) in the total number of criminal cases has not declined since the beginning of the "crackdown" in 1983, but rather has been on an upward trend, from 13.2 per cent in 1982 to 29.4 per cent in 1987, more than double the proportion in the total number of criminal cases. This has more than doubled. (2) Murder cases, which carry a high percentage of death sentences, had nearly doubled by 1989 compared with 1982; and rape crimes had even increased by 23 per cent in 1984 after the "crackdown". (3) The momentum of the rapid increase in serious criminal offences has not been curbed. Compared with the number of criminal cases filed in 1982, in the eight years (1984-1991) since the beginning of the "crackdown" in 1983, homicides have increased by an average of 30 per cent per year, rapes by nearly 20 per cent per year, injuries by 35 per cent per year, robberies by 80 per cent per year, and serious thefts by three times per year. aggravated burglary by a factor of three per year. Of course, this conclusion is still based on a simple description of the data and is not supported by rigorous statistical methods.
2.3 Two major difficulties in validation
Unlike experiments in the natural sciences, where variables are controlled, the study of the deterrent effect of the capital punishment in the social sciences is based on the observation of pre-existing social phenomena. As a result, a problem of "counterfactual thinking" about causality arises, which affects the reliability of the conclusions. For example, after a region increases the application of the capital punishment, the crime rate still shows an obvious increase. As the abovementioned study by Chinese scholars on the crime rate during the "crackdown" period concluded, the capital punishment does not have a corresponding deterrent effect. However, a counterfactual counterargument is that if the application of the capital punishment had not been increased, the crime rate in the region would have risen even more, and therefore the above conclusion is not entirely reliable. Another example is that the crime rate in a given area is affected by a variety of factors such as social norms, the criminal justice system, the level of the economy, etc., and the capital punishment policy is only one of the very small factors that may affect crime, so in comparing area A (which applies the capital punishment) with area B (which does not), even if the crime rate in area A is lower than the crime rate in area B, it is not a certainty that the capital punishment has a deterrent effect because the difference in crime rates is likely to be due to other factors such as the capital punishment and the fact that the capital punishment is applied in area A (which does not). The difference in crime rates may well be the result of other factors. In fact, the "counterfactual thinking" causation problem described above is widely found in quantitative research in the social sciences, and is particularly evident in research on whether the capital punishment has a deterrent effect. In examining whether the capital punishment is a deterrent, there is a general consensus among United States academics that the following two major issues need to be addressed.
2.3.1. Reverse causation problems
In studying whether the capital punishment has a deterrent effect, scholars usually focus on whether the capital punishment affects the crime rate, and therefore naturally take the severity of the penalty as the cause and changes in the crime rate as the effect. In reality, however, crime and punishment should be a process of mutual causation, and in the face of rising crime rates, the public and the judiciary will inevitably respond with a corresponding change in the application of penal power. It is this reverse causation that makes it difficult to verify the deterrent effect of penalties. For example, in a region, based on some external reasons, the number of homicides in a certain period of time rose, at this time the public and the judicial organs are in favour of the implementation of more severe criminal sanctions for the region. This reverse causation process is reflected in the "Strike Hard" policy of the 1980s in China. As a result, the empirical data show that the crime rate and the number of death sentences have increased simultaneously over a long period of time. However, this does not simply negate the proposition that the capital punishment has a deterrent effect. Because the rise in crime rates is caused by other factors, and the expansion of the application of the capital punishment is a social response to crime rates, the true deterrent effect of the capital punishment, if it exists at all, is obscured by this causal relationship.
2.3.2. The problem of missing variables
In statistics in the social sciences, we often use regression analysis to determine whether there is a significant quantitative relationship between two variables, and thus whether the explanatory variable causes the explained variable to occur. However, in the process of statistical analyses, if a factor that is closely related to the existence of both the explanatory variable and the explained variable is omitted, then the statistical conclusions drawn may be significantly biased.
Statistical problems arising from omitted variables abound in empirical research on the deterrent effect of the capital punishment. In real-world settings, many variables are associated with both the capital punishment and crime rates. While it may appear that the deterrent effect of the capital punishment affects crime, other third-party factors are actually exerting an influence. For example, while more executions are carried out in a particular region and crime rates fall, the fact is that more executions are carried out at the same time that the region is investing more in criminal justice and increasing the length of prison sentences. Thus, fluctuations in crime rates that appear to be caused by the deterrent effect of the capital punishment are in fact likely to be caused by other third-party variables, leading to biased conclusions.
The above problems are not specific to the deterrent effect of the capital punishment, but they have always prevented the social sciences from drawing reliable and convincing conclusions about the deterrent effect of the capital punishment. In fact, the only solution to the above problem is to resort to the experimental method in the natural sciences, that is, to randomly assign different areas or time periods, and, all other factors being equal, set them up as experimental and control groups, where the capital punishment is retained in the experimental group and not applied in the control group, so as to observe the difference in the crime rates of the two groups. Of course, such an approach cannot and should not be used in the social sciences. Nevertheless, this line of thinking has, to some extent, encouraged social scientists to settle for a "quasi-experimental design" approach to studying the causality of social phenomena.
"Quasi-experimental design" refers to an empirical research method that does not randomly assign experimental and control groups, but makes causal inferences by observing the relevant performance of subjects in different situations using already existing exogenous stimuli and controlling extraneous variables as much as possible. The key to a quasi-experimental design to study whether the capital punishment has a deterrent effect is to select an exogenous variable in society that is not related to the crime rate but has a direct impact on the implementation of the capital punishment as the implementation and control conditions of the experiment. At the same time, an appropriate statistical model is used to control for other factors that may affect the crime rate, and under this premise, a conclusion is drawn as to whether the capital punishment has a deterrent effect by observing whether there is a significant change in the crime rate in the presence or absence of this variable. The most critical aspect of this process is the selection of exogenous variables, which need to fulfil two conditions: (1) they are not directly related to the crime rate, and (2) they directly affect the application of the capital punishment.
3. Quasi-experimental design research methodology and interpretation of results
3.1 Recovery of the right to review the capital punishment as an exogenous variable
For the time being, it is not possible to judge the deterrent effect of the capital punishment by examining the quantitative relationship between the number of death sentences and the crime rate, as the exact number of death sentences and executions has not yet been fully disclosed in our country. However, in the process of the development of the rule of law in China, there are also widely known policy changes affecting the number of executions, namely, the delegation and withdrawal of the right to review the capital punishment.
As early as 1954, the Organic Law of the People's Courts of the People's Republic of China (hereinafter referred to as the Organic Law of the People's Courts) stipulated that the Higher People's Courts would approve the final judgements on the capital punishment handed down by the Intermediate People's Courts, and death sentences handed down by the Basic People's Courts or the Intermediate People's Courts where the parties concerned had not appealed, and that the Supreme People's Courts would approve the final death sentences handed down by the Higher People's Courts. This established the blueprint for a system in which the final decision on the capital punishment is vested in the Supreme People's Court. Although this system was suspended for a time during the Cultural Revolution, article 199 of the Criminal Procedure Law of the People's Republic of China (hereinafter referred to as the Criminal Procedure Law) and the Organic Law of the People's Courts, adopted by the Fifth National People's Congress at its second session in July 1979, once again explicitly stipulate that, except for cases in which the capital punishment is imposed by the Supreme People's Court, it shall be imposed by the Supreme People's Court. Supreme People's Court, shall be reported to the Supreme People's Court for approval.
However, the right to review the capital punishment was decentralised in the 1980s as a result of a decision by the Central Committee of the Communist Party of China.On 12 February 1980, the 13th meeting of the Standing Committee of the Fifth National People's Congress made a decision that the Supreme People's Court could authorise the Higher People's Courts of provinces, autonomous regions and municipalities directly under the Central Government to approve the capital punishment in cases in which the capital punishment was to be imposed for such serious crimes as homicide, rape, robbery, arson and other crimes committed in 1980, as well as in the following cases. The Supreme People's Court then authorised the Higher People's Courts of provinces, autonomous regions and municipalities directly under the Central Government to approve such cases. Subsequently, on 18 March 1980, the Supreme People's Court, in accordance with the decision of the Standing Committee of the National People's Congress, issued a notification of that delegation.
In 1983, with the beginning of the "Strike Hard", the Standing Committee of the National People's Congress once again decided to delegate some of the power to review death sentences, and the period of delegation became "when necessary" and no longer had a specific time limit. 2 September 1983 The Standing Committee of the National People's Congress adopted the Decision on Amending the Organic Law of the People's Courts of the People's Republic of China, amending the original article 13 of the Organic Law of the People's Courts to read: "capital punishment cases, except those decided by the Supreme People's Court, shall be reported to the Supreme People's Court for approval. In cases of homicide, rape, robbery, bombing and other cases in which the capital punishment is imposed for seriously endangering public safety and social order, the Supreme People's Court may, when necessary, authorise the Higher People's Courts of provinces, autonomous regions and municipalities directly under the Central Government to exercise this power". Subsequently, as drug crimes became more prevalent, the Supreme People's Court, on 6 June 1991, 18 August 1993, 19 August 1993 and 23 June 1997, respectively, authorised the Higher People's Courts of six provinces and autonomous regions, namely, Yunnan, Guangdong, Guangxi, Sichuan, Gansu and Guizhou, to exercise the power of approval in cases of capital punishment for drug crimes.
On 17 March 1996, the draft revision of the Criminal Procedure Law was adopted by the National People's Congress. Article 199 of the Law provides that "the capital punishment shall be approved by the Supreme People's Court". However, on 26 September 1997, the Supreme People's Court issued a Circular on the Authorisation of Higher People's Courts and PLA Military Courts to Approve Certain capital punishment Cases, which maintained the original pattern of dividing the review of death sentences between the central and local levels. The Circular stipulates that local higher people's courts have the power to review death sentences "for offences stipulated in chapters II, IV, V, VI (except drug offences), VII and X of the Criminal Law". Since then, the pattern of decentralisation of capital punishment review has continued until late 2006.
It can be seen that, since the early 1980s, China has experienced a process of decentralisation of some of its capital punishment review powers to the local level over a period of more than 20 years, and that this decentralisation has been characterised by regional variations (mainly in the review of the capital punishment for drug offences). According to the relevant historical documents, only six provinces and autonomous regions in China have had the power to review the capital punishment for drug offences, while the rest of the provinces, autonomous regions and municipalities directly under the central government still need to report to the Supreme People's Court for review of capital punishment cases for drug offences. This fact will serve as an important institutional background for the empirical research described below.
Along with the deepening of the rule of law in China and reflection on the policy of over-expansion of the capital punishment, the delegation of the right to review the capital punishment has been increasingly questioned. The withdrawal of the right to review the capital punishment has gradually been put on the agenda of judicial reform; on 31 October 2006, the 24th meeting of the Standing Committee of the 10th National People's Congress adopted the Decision on Amending the Organic Law of the People's Courts of the People's Republic of China, amending article 13 of the Organic Law of the People's Courts to read as follows: "Capital punishment shall be submitted for approval to the Supreme People's Court, except for those cases which are to be judged by the Supreme People's Court in accordance with the law". Article 13 of the Organic Law of the People's Courts was amended to read: "The capital punishment, except in cases where it is imposed by the Supreme People's Court in accordance with law, shall be reported to the Supreme People's Court for approval. The Decision came into force on 1 January 2007, and has been in force ever since. Henceforth, the power to review death sentences has been fully transferred to the Supreme People's Court.
The withdrawal of the right to review the capital punishment has had a far-reaching impact on China's capital punishment system: on the one hand, procedurally speaking, it means that the capital punishment is subject to an additional layer of institutional oversight and review procedures prior to its final execution, thus effectively reducing the chances of wrongful convictions; on the other hand, the withdrawal of the right to review the capital punishment has dramatically reduced the number of death sentences that are actually carried out in China. It has been reported that, in 2007 alone, the first year of the withdrawal of the right to review the capital punishment, the number of cases disapproved on the grounds that the original judgement was not clear, that there was insufficient evidence, that the sentence was inappropriate, or that the procedure was in violation of the law, accounted for about 15 per cent of the capital punishment cases that had been finalised by the review process. However, the reduction in the number of death sentences as a result of the withdrawal of the power to review death sentences was far less than that percentage. As a result of oversight from above, local people's courts tend to be more conservative in hearing capital punishment cases, so that many cases in which the capital punishment might previously have been pronounced are no longer so because of the withdrawal of the power to review death sentences. Relevant foreign sources estimate that in 2007, after the withdrawal of the right to review the capital punishment, the number of death sentences in China decreased by 30 per cent compared with 2006. This figure is also confirmed by domestic data: after the withdrawal of the right to review the capital punishment, the number of capital punishment cases in many provinces fell by more than one third, and in some provinces even by nearly half.
Therefore, the information available already makes it abundantly clear that the event of the withdrawal of the power of review of the capital punishment has had a direct and significant reducing effect on the number of executions in the country. In other words, more procedural control over the capital punishment means fewer executions in our country. This fact facilitates the "quasi-experimental design" of empirical research. On the one hand, it divides the historical implementation of the capital punishment policy in China into two phases: an expansionary phase (before the retraction of the right to review the capital punishment) and a restrictive phase (after the retraction of the right to review the capital punishment). Intuition tells us that if the capital punishment has a clear deterrent effect, the crime rate in the former phase should be significantly lower than in the latter. On the other hand, due to regional differences in the previous delegation of capital punishment review powers, some places (the six provinces and autonomous regions with the power to review capital punishment for drug offences) have greater power to review capital punishment, while others (the remaining provinces, autonomous regions, and municipalities directly under the central government) have only general power to review capital punishment. Following the above line of thought, it is clear that in these places with greater power to review the capital punishment, the capital punishment will be more easily applied. Therefore, after the power to review the capital punishment has been withdrawn, the reduction in the number of death sentences should also be greater for these provinces and autonomous regions. Intuition again tells us that if the capital punishment has a significant deterrent effect, then the crime rate in these provinces and autonomous regions will also produce larger fluctuations. These two propositions constitute the main logic of the empirical research in this paper.
It is worth stressing that, on the basis of the available evidence, the intrinsic motivation for the withdrawal of the right to review the capital punishment is primarily the need for the process of rule of law in the country and the need for the State to respect and safeguard the values of human rights. As such, it does not have an obvious relationship with the governance of crime per se. This proposition is also important in that it constitutes the factual basis for the retraction of the right to review the capital punishment as a statistically "exogenous variable", thus avoiding the problem of reverse causation mentioned above. Otherwise, if the reduction of the capital punishment is a natural response to the crime rate, then the fact that the capital punishment and crime have fallen in tandem does not effectively validate the conclusion that the capital punishment is a deterrent, since crime is the cause and the capital punishment is the effect.
The core idea of the empirical research in this paper is to verify whether the capital punishment has a deterrent effect by asking whether a statistically significant increase in the crime rate will follow when an external factor causes the actual number of death sentences to be drastically reduced. Among them, the crime rate is the explanatory variable, while the policy change affecting the capital punishment is the explanatory variable, in which an important precondition is that the statistical calibre of the explanatory variable as the crime rate needs to be unified. Based on the fact that China's current criminal law has been in force since 1997, and that there are significant differences in the delineation of the crime circle relative to the 1979 criminal law, this paper uniformly selects the relevant data from 1997 onwards as the object of study to ensure that the changes in the crime rate do not result in significant changes due to legislative factors.
In terms of research methodology, this paper takes the overall crime rate time series data of the whole country as the object of research, and uses statistics to study whether the crime rate produces significant changes after the power of capital punishment review is withdrawn. Of course, the disadvantage of this research method is that it cannot fully control other factors affecting crime. Therefore, this paper next chooses the crime rate data of each province, autonomous region and municipality directly under the central government for panel data regression, and adds multiple linear regressions of other methods affecting the crime rate, so as to strip the influence of the capital punishment from it, thus further verifying whether the capital punishment has a deterrent effect.
3.2 Time series studies
The China Law Yearbook is the most authoritative and comprehensive yearbook in the legal field in China. Since its inception in 1987, the Yearbook has usually published relevant data on the public security and judicial sectors for the previous year in the Statistics section. In the section on Public Security Organs, the "Statistical Tables on the Classification of Criminal Cases by Public Security Organs of the Nation" publishes the number of criminal cases filed nationwide in each category. This official data can be used as an important reference data for the study of crimes in China. Therefore, this paper selects intentional homicide and robbery, two typical offences closely related to the deterrent effect of the capital punishment, as the objects of time series research. According to the provisions of China's current criminal law, the maximum sentence for the above two offences is the capital punishment. Before 2007, the final decision on the capital punishment in these two types of cases was exercised by the local Higher People's Courts; after 2007, the power to review the capital punishment in these two types of cases was uniformly transferred to the Supreme People's Court.
3.2.1 Changes in the time series of intentional homicide cases
In retentionist countries, intentional homicide is usually the first offence for which the capital punishment is applied. In our country, intentional homicide is also the only offence for which the capital punishment is the first applicable penalty. In the cultural identity of the public, the concept of "paying for one's life by killing others" has a wide influence. Therefore, in the context of this paper, the normal reasoning that the capital punishment has an effective deterrent effect is that when the power of review of the capital punishment is withdrawn, the procedure for applying the capital punishment becomes stricter, and the number of executions decreases significantly, thus leading to a weakening of the deterrent effect of the capital punishment, and accordingly, the number of intentional homicide cases will rise. However, the results obtained from the empirical study are just the opposite. This paper selects the number of homicide cases counted by public security organs from 1997 to 2015 and makes the following chart 1.
As can be seen from chart 1 below, until 2005, the number of intentional homicide cases in China remained at a high level of around 25,000 per year. However, after the withdrawal of the right to review the capital punishment in 2007, the number of intentional homicide cases in China not only did not increase, but also decreased significantly. After 2008, the number of cases remained below 15,000 per year. In order to better portray this trend in statistical language, this paper uses the local weighted regression scatter smoothing method in the statistical software R language to portray the time trend of intentional homicide cases, and from the direction of the line, it can also be clearly seen that the downward trend of intentional homicide cases after the retrieval of the right to review the capital punishment.
Therefore, strict procedural control over the capital punishment would significantly reduce the number of executions, rather than lowering the expected cost of crime for potential offenders and thus causing a rise in the number of related crimes, as some have assumed. On the contrary, an expansive capital punishment policy does not serve as an effective deterrent to crime, as evidenced by the fact that the number of intentional homicide cases remained at a high level until 2007, when the country devolved the power of review of the capital punishment to the local high courts.
3.2.2 Changes in the time series of robbery cases
According to article 263 of the 1997 Criminal Law of the People's Republic of China (hereinafter referred to as the Criminal Law), the maximum penalty for the offence of robbery can reach the capital punishment after the eight aggravating circumstances of robbery have been satisfied. According to the theory of criminal law and the principle of universal adjudication in judicial practice, a person who commits homicide for the purpose of obtaining property is convicted and punished for the offence of robbery. Such cases, however, are often those in which the capital punishment is applied at a high rate. Therefore, the deterrent effect of the capital punishment should be able to radiate to robbery cases. In addition, unlike the above-mentioned intentional homicide cases in which there are a large number of cases of "killing in anger" or "revenge killing", the violent acts in the crime of robbery are often committed by the perpetrator for the motive of making profit. Therefore, according to common intuition, the deterrent effect of the capital punishment should be greater.
However, similar to the results found in intentional homicide cases mentioned above, the number of capital punishment cases decreased after the power to review the capital punishment was withdrawn in 2007, and the number of robbery cases has also shown a steady decline since 2009. In contrast to the high trend from 2000 to 2005, when the number of cases remained above 300,000 per year, the number of robbery cases has remained below 150,000 per year in recent years. It is thus clear that the law that the policy of expanding the application of the capital punishment is able to deter crime is also not reflected in violent crime motivated by profit.
Thus, as can be seen from the empirical results of the two offences mentioned above, after the Supreme People's Court withdrew its power to review death sentences and reduced the number of death sentences, not only did the number of "heinous cases" not rise, but it was also significantly lower than it had been when the capital punishment was being applied in a more expansive manner. In other words, the policy of restricting the application of the capital punishment has led to a decrease in the number of offences, an unexpected result for those who hold the view that the capital punishment is a deterrent.It may be argued that the decline in the number of related offences after 2007 may have been influenced by third-party factors, one of the most likely being an improvement in the overall security environment in society, and that therefore, even if there had been no change in the country's capital punishment policy, the number of intentional homicides and robberies would have declined, if not even more so. This is also the "omitted variable" problem often encountered in studies of the deterrent effect of the capital punishment, as mentioned above.
However, the relevant empirical data do not support the above view. In fact, in terms of the overall number of offences, the number of criminal cases filed in China has been on an upward trend from 1,613,629 in 1997 to 4,807,517 in 2007 to 7,174,037 in 2015. In terms of individual offences, theft, for example, which is largely unaffected by the deterrent effect of the capital punishment, rose from 3,268,670 in 2007 to 4,875,561 in 2015. This shows that the above "theory of improvement of social security" is not tenable.
In summary, the results of the time-series study show that, against the backdrop of the number of common crimes remaining at a high level and the reduction in the number of death sentences as a result of the withdrawal of the power of review of the capital punishment, the number of "heinous cases" for which the capital punishment was thought to provide a deterrent has not risen, but rather has shown a significant downward trend. Thus, the argument that the capital punishment can deter serious crimes does not hold water.
3.3 Panel data regression
Panel data, in short, is a mixture of time series and cross-sectional data, which refers to the sample data composed of taking multiple cross-sections on the time series and selecting a certain number of sample observations on these cross-sections at the same time. In this paper, the object of my research is the change of crime rate in 31 provincial administrative regions of China for 18 years from 1997 to 2014, and in this way, I explore the relationship between crime rate and capital punishment policy. Among them, 18 years is the time series of the panel data, and the sum of the crime rate data for each of the 31 provincial administrative regions in China respectively constitutes a number of different cross-sections. Since the panel data has both time and individual dimensions, the inherent differences of different individuals can be controlled by fixed model effects in the multiple linear regression, thus ensuring that different provincial administrative regions can be compared with each other.
Every year, the China Procurator's Yearbook publishes reports on the work of the people's procuratorates of China's 31 provinces, autonomous regions and municipalities directly under the Central Government, and there are two figures in those reports that are directly related to the crime rate: the number of persons approved for arrest by all procuratorates of all types of criminal cases in that year in that province, autonomous region or municipality directly under the Central Government and the number of persons who have instituted criminal prosecutions. The latter figure is higher than the former because it takes into account the fact that a proportion of defendants in misdemeanour cases are not arrested prior to prosecution. Since this paper examines the relationship between the capital punishment policy and the crime rate, and since misdemeanours are generally outside the scope of the deterrent effect of the capital punishment, the number of arrests of all types of criminal cases approved by the procuratorates of all provinces, autonomous regions and municipalities directly under the Central Government each year has been chosen as the basis for calculating the crime rate.
In doing so, this paper needs to test two hypotheses: (1) Whether, on the whole, the crime rate in each province, autonomous region, or municipality directly under the central government will change statistically in response to changes in capital punishment policy. Specifically, when the power of capital punishment review was transferred to the Supreme People's Court, whether provinces, autonomous regions, and municipalities directly under the central government would see an increase in crime rates as a result of a decrease in the number of executions. (2) Since there were differences in the authority to review the capital punishment among provinces, autonomous regions, and municipalities directly under the central government prior to 2007, with six provinces and autonomous regions, namely Yunnan, Guangdong, Sichuan, Guangxi, Gansu, and Guizhou, having the authority to review the capital punishment for drug offences, while the rest of the provinces, autonomous regions, and municipalities directly under the central government did not, if the capital punishment has a deterrent effect, then, on the one hand, having a greater authority to review the capital punishment should be able to effectively curb that offence. Therefore, if the capital punishment has a deterrent effect, then, on the one hand, having greater authority to review death sentences should be an effective deterrent to crime in that province or autonomous region; on the other hand, when the authority to review death sentences was unanimously withdrawn in 2007, the change in the crime rate in those provinces or autonomous regions should be greater than the change in the crime rate in the rest.
3.3.1. Econometric modelling and variable selection
The econometric model in this paper is a multivariate linear regression based on panel data with the equation shown below.
Offence rate it = α + β* right to review the capital punishment for ordinary offences it + γ* right to review the capital punishment for drug offences it + provincial administrative area fixed effects model p + matrix of control variables itδ + εit
Specifically, this panel data regression is divided into the following sections.
(1) Explained Variables
On the left side of the equation is the explanatory variable, i.e. the crime rate. As mentioned above, this paper chooses "the number of persons approved for arrest in various types of criminal cases" as the basis for calculating the crime rate. At the same time, the author extracted the population base of each province, autonomous region and municipality directly under the central government from the China Statistical Yearbook, and used it as the denominator to calculate the annual crime rate of each province, autonomous region and municipality directly under the central government according to the "rate of approved arrests per 10,000 people".
The subscript "it" reflects the characteristics of the panel data, which means the crime rate data of province, autonomous region and municipality directly under the central government in year t. As mentioned above, due to the promulgation of the Criminal Law in 1997, which led to a significant change in the crime circle, in order to make the statistical calibre of the crime rate data uniform, the value of t is taken in the range between 1997 and 2014. Therefore, regarding the crime rate, this paper can get a total of 31 provinces, autonomous regions and municipalities directly under the central government multiplied by 18 years for a total of 558 observations.
(2) Explanatory variables
Since the issue to be discussed in this paper is the relationship between the capital punishment policy and the crime rate, the first two variables on the right side of the equation are the explanatory variables, both of which are portrayed as binary dummy variables. Among them, the right to review the capital punishment for ordinary crimes refers to whether or not each local Higher People's Court had the right to review the capital punishment for ordinary crimes in the year in question, according to the two documents issued by the Supreme People's Court, "Circular on the Authorisation of the Higher People's Courts and the Military Courts of the People's Liberation Army to Approve Some of the capital punishment Cases", and "Decision of the Supreme People's Court on the Relevant Issues Concerning Unified Exercise of the Right to Exercise the Right of Approval of the capital punishment Cases", which the Supreme People's Court discussed and adopted. For this variable, all provinces, autonomous regions and municipalities directly under the central government had a value of 1 between 1997 and 2006, indicating that they all had the power to review capital punishment cases in the process and consequently had an expansive capital punishment policy. Between 2007 and 2014, however, the variable was uniformly zero, indicating that the right to review the capital punishment for ordinary crimes was withdrawn and the capital punishment policy was curtailed. Therefore, linking the explained variable and this explanatory variable, the significance of the coefficient β is to reveal the impact of the right to review the capital punishment for ordinary crimes on the crime rate. For example, if β is a statistically significant negative number α, then it implies that the crime rate decreases when provinces, autonomous regions, and municipalities have the right to review ordinary capital punishment α. Conversely, if β is a statistically significant positive number, then it implies that the expansionary capital punishment policy does not lead to a decrease in the crime rate, but rather an increase in the crime rate. If β is not significant, then it implies that a capital punishment policy for ordinary offences does not have a significant effect on the crime rate.
In addition, between 1991 and 1997, the Supreme People's Court granted the Higher People's Courts of six provinces and autonomous regions, namely Yunnan, Guangdong, Sichuan, Guangxi, Gansu and Guizhou, the power to approve the capital punishment for drug offences, which was withdrawn along with the power to approve the capital punishment for other ordinary offences in 2007. Thus, between 1997 and 2006, the variable for the power to approve drug offences in these six provinces/autonomous regions had a value of 1. By 2007, when this power was withdrawn, the variable had a value of 0. For those provinces/autonomous regions/central municipalities directly under the central government that have not been granted the power to approve drug offences, the value of the variable was always 0. This variable attempts to portray the historical This variable seeks to portray the impact of the capital punishment policy on the crime rate in China throughout history, with geographical differences in drug offences. In this regard, the author has always adhered to the concept of the "double-difference model", i.e. the first difference is to calculate the difference in crime rates between those provinces, autonomous regions, and municipalities directly under the central government that have been granted the right to review the capital punishment for drug-related offences, and those that have not been granted the right to review the capital punishment from the very beginning, before and after 2007; and the second difference is to compare the difference in crime rates between the above mentioned provinces, autonomous regions, and municipalities directly under the central government that have been granted the capital punishment for drug-related offences. The second difference compares the changes in the crime rates of the two different types of provinces, autonomous regions and municipalities. The significance of the coefficient γ is precisely the result of the second difference, which, in plain language, is whether the crime rates of those provinces and autonomous regions that had been granted the right to review the capital punishment for drug offences fluctuated statistically more after the right to review the capital punishment was withdrawn, relative to those that had not been granted the right to review the capital punishment. The specific interpretation of this is consistent with the β coefficient described above, i.e. if γ is a significant negative number, it implies that having the power to approve the capital punishment for drug offences leads to a decrease in crime rates; conversely, there is no evidence that an expansive capital punishment policy for drug offences is effective in curbing crime.
(3) Control variables
China is a vast country, and there are significant differences in economic levels, demographics, and judicial administration between provinces, autonomous regions, and municipalities directly under the central government; to make crime rates comparable between provinces, autonomous regions, and municipalities directly under the central government, and to strip the capital punishment from other factors affecting crime, it is necessary to include relevant control variables in the equation.
As mentioned above, there are a variety of factors other than the capital punishment policy that exert an influence on the crime rate. With the help of relevant data from the China Statistical Yearbook, the author has selected the following socio-economic variables that are widely recognised as likely to affect the crime rate to form a matrix of control variables, with each variable unit similarly labelled it, which depicts the specific situation of province, autonomous region and municipality directly under the central government of province i in year t. The following are among them: (1) Population. These include: (1) Population. In this paper, we select the population base of 15 to 65 years old as a proportion of the total population. This part of the population is the young and middle-aged population, which is the high prevalence of both aggressors and victims. (2) Education level. In this paper, three variables are selected, illiteracy as a proportion of the population over 15 years of age, having a high school education as a proportion of the population over 15 years of age, and the number of people with a college degree or higher as a proportion of the population over 15 years of age. (3) Economic status. This paper also chooses three variables, namely, disposable income per capita of urban residents, disposable income per capita of rural residents, and unemployment rate.
3.3.2. Interpretation of results
The results of the panel data regression are shown in the table below:
It should be noted here that the regression coefficients are labelled with one star when the p-value of the bilateral test is less than 0.1, two stars when the p-value of the bilateral test is less than 0.05, and three stars when the p-value of the bilateral test is less than 0.01. The significance of the R2 is the weight of the explained variable in the fluctuations that are explained by the explanatory variables.
The table above shows that the regression coefficients for the two variables of the power to review the capital punishment for ordinary offences and the power to review the capital punishment for drug offences are both positive coefficients and have p-values much greater than 0.1. The resulting policy interpretation is that, from the available evidence, the devolution of the power to review the capital punishment for either ordinary or drug offences, and the expansionary capital punishment policies associated with it, do not lead to a statistically significant decrease in the crime rates of the provinces, autonomous regions, and municipalities directly under the jurisdiction of the government, municipalities with statistically significant decreases in crime rates. In short, the policy of expansion of the capital punishment has not had the effect of deterring crime.
On the contrary, among the control variables, we find some that are significantly correlated with the crime rate. Among them, there is a significant positive correlation between the share of the population aged 15 to 65 and the crime rate. This implies that an increase in the share of young adults to a certain level leads to an increase in the crime rate. Such a result is also consistent with our intuition. In addition, there is a significant negative correlation between the disposable income of urban residents and the crime rate. This means that a rise in the income of urban residents in a certain area will lead to a fall in the crime rate in that area. This result is also in line with the intuition that "a granary is well-stocked and knows the proprieties". On the contrary, there is a significant positive correlation between the disposable income of rural residents and the crime rate. This means that when the income of rural residents rises, the crime rate in the area will rise. This phenomenon needs to be further explained by relevant theories.
In any case, however, as far as the relationship between capital punishment policy and crime rates is concerned, the results of the multiple linear regressions indicate that our historically expansive capital punishment policy has not led to a reduction in crime rates, and the proposition that the capital punishment is a deterrent is once again in reasonable doubt.
3.4 Summary
From the results of the above empirical research in both time series and panel regression, the following conclusions can be drawn: firstly, at the macro level, against the backdrop of the withdrawal of the right to review the capital punishment and the reduction in the number of death sentences, the number of the two types of heinous criminal cases that were thought to rely on the capital punishment as a deterrent did not increase, but rather tended to decline. Second, at the micro level, the crime rate data for each province, autonomous region and municipality directly under the central government are not affected by the expansion and contraction of the capital punishment policy, i.e., none of them have produced statistically significant fluctuations. At the same time, after controlling for relevant variables, the more expansive capital punishment policy in some provinces and autonomous regions by granting them the right to review the capital punishment for drug offences did not affect their crime rates differently from those of other provinces, autonomous regions and municipalities directly under the central government. On the contrary, factors other than penal policy, such as population weight and income level, have a significant impact on crime rates. Thus, the idea that the capital punishment is an effective deterrent is equally questionable in the social context of the country.
4. The removal of the deterrent effect of the capital punishment
The concept of "disenchantment" was originally proposed by the German scholar Max Weber. He believed that in the process of "demystifying" things, a rational understanding of society was more valuable than mere religious belief. Nowadays, the term is often used in the social sciences to describe the demystification and rationalisation of certain concepts in modern society. In the context of this paper, the term "demystification" more aptly expresses the process of discovery of the deterrent effect of the capital punishment. From the very beginning of human society, people seemed to have a religious belief in the deterrent effect of the capital punishment. It was believed that taking away a person's life meant taking away everything, and that any potential offender would be deterred by such a harsh penalty. Therefore, the imposition of more death sentences to curb crime became an important tool that rulers relied on to maintain social order. However, as mentioned above, neither the results of the research on the deterrent effect of the capital punishment in the United States, which has been accumulated for decades, nor the empirical conclusions drawn from the interaction between the retraction of the right to review the capital punishment and the rate of crime in China can provide a convincing conclusion that the capital punishment has a deterrent effect. Therefore, in modern society, where scientific rationality is gradually shining, the primitive and irrational notion that the capital punishment has a deterrent effect should be completely discarded. In fact, the deterrence theory of modern criminology has provided a convincing explanation as to why the capital punishment, the harshest of all penalties, does not have a deterrent effect.
4.1 A large number of offenders are not rational human beings
Any theory that stresses the effective deterrent effect of penalties is based on the fact that offenders make rational calculations of the benefits and costs of crime in the course of committing a crime, and that increasing the severity of penalties raises the cost of committing a crime to the offender, which in turn can effectively deter crime. However, in the many offences involving the capital punishment, the assumption that the offender is a rational person is difficult to establish. On the one hand, there are a large number of "crimes of passion" among the many crimes that deprive victims of their lives. As these offenders commit intentional homicide, arson and other acts, the instantaneous outburst of emotion makes it impossible for them to care about the consequences of the penalty they may suffer, so the capital punishment is bound to fail to achieve the effect of curbing crime. On the other hand, there are other criminals who commit crimes without being controlled by their emotions, but modern criminologists generally agree that a large number of criminals who commit vicious acts of violence have psychological and physiological deficiencies that are different from those of ordinary members of society. This is reflected in the criminal behaviour of these offenders on the social evaluation of the consequences of their actions, lack of foresight or even numbness or lack of social expectations of the ability to sense. Therefore, it is equally difficult to expect the capital punishment to deter such offenders. As some scholars have observed: "Offenders are not economists, and the calculation of risk does not take place in their minds in a way that we can perceive as rational. To assume that any range of penalties, including or excluding the capital punishment, will affect his behaviour is to ignore the very nature of the human being with whom we have to cope."
4.2 Gap between subjective perception of punishment and objective state of execution of punishment
Even in the face of rational offenders, the deterrent effect of the capital punishment requires extremely stringent conditions. One of the recurring theses in modern criminology is that it is the subjective perception of the penalty, rather than the objective state of execution of the penalty by the State, that is important in influencing the offender's expectation of the cost of the offence, and that there is often an unbridgeable gap between the two because of the particularities of the criminal population.
Specifically, offenders are not legal persons, and most are unlikely to keep a permanent eye on national legislative developments and the state of enforcement of penalties, much less use them as an important reference for weighing the pros and cons of committing an offence on their own. The empirical study of a large number of robbers by the American scholar Cook shows that the source of information on the possible penal treatment of the offender is very limited, and is based only on his own experience in committing the offence and a small amount of empirical information from his peers. Therefore, unless it can be demonstrated that changes in the State's penal policy can have a direct effect on the limited sources of information mentioned above, and thus affect the subjective penal perception of the offender, the deterrent effect of the penalty is necessarily limited.
However, this process is precisely what cannot be achieved in modern society during the execution of the capital punishment. This is because, with the exception of a small number of social cases, a large number of capital punishment cases are in a state of obscurity from judgement to execution. As a result, an objectively harsh capital punishment policy simply cannot influence the subjective perception of the penalty by potential offenders, and those who believe that the execution of a large number of death sentences will curb crime are clearly ignoring the real source of information that influences the decision-making of offenders about their criminal behaviour.
4.3 The determining factor in the deterrent effect of the capital punishment is its marginal, rather than absolute, cost to the offender
An oft-repeated proposition about the deterrent effect of the capital punishment is that when life becomes the cost of committing a crime, people will inevitably abstain from committing it. Thus, an important basis for the deterrent effect of the capital punishment is the high value of an individual's life. However, it is an important fact that the capital punishment is not a choice between an ordinary person and a person who has suffered the pain of being deprived of life; it is merely a choice between the offender being sentenced to a long term of free imprisonment or even life imprisonment in the future, or having his life ended for a short period of time. The deterrent effect of the capital punishment is therefore predicated on the premise that the capital punishment has a significantly higher deterrent level than the most severe non-life sentences, and is thus able to effectively influence the behavioural decisions of potential offenders. To argue that the capital punishment is a deterrent simply on the basis of the value of the deprivation of the price of life, which is the absolute cost of the capital punishment, clearly ignores the holistic nature of the penal system and the substitutability of different penalties.
However, whether the capital punishment has a significant marginal deterrent effect relative to non-life sentences is itself highly questionable. Penal economists generally agree that the marginal costs of punishment are diminishing. Specifically, the most obvious cost of punishment to the offender arises at the point at which the penal power is unleashed. At that point, the penalty isolates the offender from normal society, disrupts his or her previous social relationships, and discriminates against him or her by his or her social peers, and most people refrain from committing offences for this reason. However, after the activation of the right to punishment, the deterrent effect on the offender decreases with the increase in the severity of the unitary penalty. In the case of a choice between the capital punishment and the maximum penalty, the impact of the penalty on the offender is even more minimal. For example, the probability of an offender deciding to commit a crime when he or she may face life imprisonment for his or her actions, and then abandoning the offence as soon as the potential penalty becomes the capital punishment, is extremely low in the real world.
4.4 The three-dimensionality of the deterrent effect of penalties is such that they are not as effective as they are severe.
Another important theory about the deterrent effect of punishment is that it is determined by a number of variables in the execution of the penalty, of which the severity of the penalty is only one aspect, and that in the absence of the other factors, the severity of the penalty simply does not work. In fact, this issue was already mentioned in the time of Beccaria. For example, in "Certainty and Necessity of Punishment", Beccaria mentioned that "the strongest binding force for crime is not the severity of punishment, but its necessity, which requires that the judicial officer be scrupulous in his duties, and the judge unselfish and conscientious, which can be a useful beauty only under the conditions of leniency and the rule of law" (p. 3). All this can be a useful virtue only under conditions of leniency and the rule of law". In his discussion on the "promptness of punishment", Beccaria again refers to the fact that "the more prompt and timely the punishment of crime, the more just and effective it will be ------ The shorter the interval between crime and punishment, the more prominent and continuous in the minds of the people will be the link between the two concepts of crime and punishment. The more prominent and continuous the link between the two concepts of crime and punishment in the minds of men the more prominent and continuous the link between the two concepts of crime and punishment. ------ It is only by the compactness of the link between crime and punishment that the linked concepts of punishment can be counted upon to awaken at once the grosser minds from the tempting and lucrative picture of crime".
It can be seen that in Beccaria's theoretical construct, apart from the severity of the penalty, two important factors affecting the deterrent effect of the penalty are the certainty and timeliness of the penalty. If an offender expects that the likelihood of his or her offence being detected is low, or believes that he or she is unlikely to be subjected to criminal sanction within a short period of time, then even if the penalty is severe, it is unlikely to have an effective deterrent effect on potential offenders. In reality, however, the capital punishment, the most severe means, is often cited as the only source of deterrence, apparently ignoring the fact that the deterrent effect of punishment is the result of a combination of different factors in multiple dimensions.
4.5 The hard-to-ignore "brutalisation effect"
The deterrent effect of the capital punishment is accompanied by what is often referred to in criminology as the "brutalising effect" of the capital punishment. Specifically, because the capital punishment is an act by which the state executes a citizen, such public, legalised violence can lead to several outcomes: (1) it can desensitise citizens to violence itself, making them reluctant to intervene in mediating and dealing with the violence of others; (2) it conveys to citizens the notion that it is acceptable to exact harsh revenge on others for their past misdeeds; (3) it can have a mimicry effect, making potential offenders believe that since the state can execute them, the capital punishment has a "brutalising effect". 3) It creates a mimicry effect, causing potential offenders to believe that since the state can execute its enemies, it is not too bad for me to do the same. Thus, contrary to the deterrent effect of the capital punishment, the "brutalising effect" of the capital punishment is likely to lead to an increase in crime.
Indeed, in the United States, there is also considerable evidence that the capital punishment has the effect of causing an increase in crime rates. For example, the American scholars Bowers and Pierce found that executions in California and Pennsylvania had the same crime-promoting effect. They found that each execution led to a murder rate two to three times higher in the following month than in the same period before. They concluded that there are people in society who already have an object of revenge in mind and are always ready to kill, and that the execution and the media coverage leading up to it sends the message that "homoerotic vengeance is right," and therefore leads these people to carry out their criminal intent. The message conveyed to them by the capital punishment and the media reports prior to the execution was that "homophobic revenge is right", thus directly leading them to carry out their criminal intent.
From this, we can see that the "brutalising effect" of the capital punishment is a proposition that we cannot ignore, and its contribution to crime may well exceed the weak deterrent effect of the capital punishment itself. To a certain extent, this also explains why the number of vicious criminal cases in China has decreased after the power of reviewing the capital punishment was withdrawn and the number of executions was reduced.
To sum up, China's historical experience and relevant criminological theories have proved that the capital punishment does not have the effective deterrent effect on crime that was envisaged in the past, and that some of its negative effects may even make its expanded application counterproductive. "Retaining the capital punishment but strictly controlling and prudently applying it" is China's criminal policy at this stage, and the withdrawal of the right to review the capital punishment is an important step on the road to strict control of the capital punishment in China. This is not only of far-reaching significance for the implementation of the policy of ruling the country according to the law and respecting and safeguarding human rights, but also in terms of crime control, the change in policy has not resulted in any unfavourable consequences. Henceforth, we should dispel the myth of the utilitarian utility of the capital punishment, with a view to travelling further down the road towards its reduction and even abolition.