As of 2022, China—excluding Hong Kong and Macau—still had 46 legal provisions that carry the death penalty. Among countries that retain capital punishment, it had the largest number of capital offenses.
The immediate prompt for thinking about this again was the case in Feng County, Xuzhou, where a woman was reported to have given birth to eight children. The story opened a much larger question about trafficking in women. It also exposed something uncomfortable: some trafficked people, having escaped one miserable life, end up living better in the family that bought them and do not want to return to their original homes. This industry has always existed, whether or not it surfaces online. And whenever trafficking is discussed, a crowd inevitably demands the death penalty for traffickers. As someone trained in law, I used to oppose that demand. After all these years, I find myself wondering whether it might not be a solution after all.
The abolition debate is unavoidable in modern rule-of-law construction. The death penalty is one of the few 'absolute events' in social life. When a person is executed for a crime, everything about that offender and compensation ends there. But if an innocent person is executed because of a wrongful conviction, that execution is equally absolute. Even if the case is later overturned, the dead do not come back. The state can only look for the real culprit and execute someone else. In China's legal environment, once the defendant has been executed, the case is effectively closed, whether or not there is any possibility of exoneration. Hence the warning: when a government tries to deter crime by making punishment harsher, we should suspect it is covering up its inability to solve cases.
Capital punishment has deterrent force, but it must be divided into internal and external. Internal refers to citizens' restraint on their own behavior, closer to morality. Religion is an imperfect but precise example: it is an internal law, with narratives of life and death, sin and punishment, that can create a kind of death penalty in the believer's mind. This is not biological death but social, spiritual, or exclusion from the religious ultimate. External refers to the law's deterrent effect on citizens. If trials are truly fair, executing even for 'minor' offenses can create an absolute death-penalty concept in people's minds.
Relatively speaking, the death penalty does deter some crime, but how much no society has ever calculated. For criminologists, it does nothing for public security and may even backfire through disproportionate punishment. That is why trafficking cannot start with the death penalty. If trafficking alone gets death, what about rape, abuse, or intentional injury and homicide committed in the course of trafficking? Some say: if trafficking gets death, more people will be afraid to traffic. But what is the core of buying and selling? It is not the 'goods' first; it is demand first. Should buyers also get death? And if both buyer and seller are executed, where does the trafficked person go? Discussing this is like kicking a hornet's nest of gender politics on Weibo—no one wants to hear it, and if no one says it, it supposedly does not exist.
In short, disproportionate punishment is a black swan that any blanket death-penalty regime for a category of crime will inevitably produce. One appearance can lead to explosive growth. Of course, any discussion of retaining the death penalty must assume the government has investigative capacity and does not manufacture wrongful convictions. Otherwise absolute death penalty becomes a tool for covering up investigative incompetence.
Now why I think a blanket death penalty for certain categories may not be impossible.
Chinese people's understanding of law starts in large part from four words: murder must be paid with life. Since this is a shared cognitive point, internal restraint built from it is easier to construct. Often this moral understanding even breaks through the law itself. In practice this is common. Take the case of Jiang Ge's mother and Liu Xin. The law found that Liu Xin's negligent conduct caused Jiang Ge's accidental death, determined her responsibility, and set the price she must pay. But for Jiang Ge's mother and the many supporters online, that judgment was far from enough to offset the result of Jiang Ge's death. A completely unequal punishment appeared: the law thought Liu Xin's legal responsibility was 1, but Jiang Ge's mother, as the victim's family, thought 1 could not be exchanged for the pain of Jiang Ge's death, which was 10. If the gap between 1 and 10 cannot be filled by law, then the law is unreasonable, the law does not favor the weak, the law is a shield for the strong.
If there were a blanket death-penalty regime for a category of crime, the gap between 1 and 10 would not exist. Life for life may be the most perfect equivalent exchange outside law, in the moral realm. If it is not equal, then collective punishment or even extermination of nine clans follows. From this view, applying the death penalty to trafficking is not mainly to deter crime; it is more like a way to force 1 and 10 to be equal. Think of the trafficked women and the families who lost daughters—how great the pain must be. Only executing both buyer and seller could fill that pain. This is the perspective of the parties involved, and it is a favorite analogy on the Chinese-language internet: if your daughter were trafficked, wouldn't you want both the trafficker and the buyer executed?
Of course, a death-penalty provision for trafficking has its own unsolvable black swan. A daughter is voluntarily sold by her seller, then sold through a trafficker as broker, then bought by a buyer to live as a family member, and the trafficked person actually lives better in the buyer's home. How do you convict in this absurd but real scenario?
If you ask me, just execute them all. Everyone is guilty. The seller who sells a daughter is cruel; the broker who passes her on deserves death; the buyer is the chief culprit; the sold person lives too cheaply. Only when everyone is dead can the sacred innocence of 'murder must be paid with life' be preserved.
And then, thinking backward, this is probably why we still cannot abolish the death penalty.