Between Deference and Defiance: Courts and Penal Populism in Chinese Capital Cases

Bin Liang & Hong Lu (Eds.), China’s Death Penalty in Transition: Theory, Policy, Practice and Reform (Columbia University Press, Forthcoming)

13 Pages Posted: 14 May 2015 Last revised: 26 Sep 2016

See all articles by Fu Hualing

Fu Hualing

The University of Hong Kong - Faculty of Law

Date Written: May 1, 2015

Abstract

Public opinion matters in different regime types, and an authoritarian state like China is as deeply concerned with opinions of their citizens just as democracies do. Popular opinion as reflected in victims’ petition and sympathy in social media is an influential force for Chinese courts to reckon with in making decisions. In the end, death penalty decisions require the broad support of the society and cannot be left merely for judges to decide. This article has argued that the Chinese penal populism occurs in a different cultural context. The Chinese penal populism challenges principally the perceived abuse of power and addresses the issue of social inequality with the Chinese egalitarianism at the backdrop. This article also argues that what is passed in the name of public opinion in China is really the opinions taken by victims, defendants and their respective supporters who advocate for certain specific positions - either for lenience or harshness in sentencing and either pro or against the death penalty. Piercing the veils of public opinions in many sensational cases, one may quickly realize that public opinion may not be as spontaneous as it initially appears. Behind public agitation and outcry, victim families and their supporters actively mobilize and exploit the sympathy of the general public, tactically frame their tragedies, and aggressively “sell” a particular line with the explicit aim to bring public pressure to bear on decision-makers. There are professional middlemen for hire, who can fan public emotion and bring the case to a higher profile. The perfect storm would not have formed except through painstaking, persistent and aggressive organization of public opinion. The storm can then shape the political agenda and override the judicial decision-making process.

Keywords: penal populism, courts, victims' rights

Suggested Citation

Hualing, Fu, Between Deference and Defiance: Courts and Penal Populism in Chinese Capital Cases (May 1, 2015). Bin Liang & Hong Lu (Eds.), China’s Death Penalty in Transition: Theory, Policy, Practice and Reform (Columbia University Press, Forthcoming). Available at SSRN: https://ssrn.com/abstract=2601494

Fu Hualing (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://hub.hku.hk/rp/rp01245

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