Margaret K. Lewis. Death Penalty for Polluters: China’s Use of Criminal Law for Economic Ends. CFR "Asia Unbound"

August 1, 2013

Last month, an opinion piece in the Legal Daily called for China’s Environmental Protection Law to “grow teeth” by including clearer punishments that go beyond monetary fines. This followed a June joint interpretation by the Supreme People’s Court (SPC) and Supreme People’s Procuratorate (SPP) that details standards for handling criminal cases of environmental pollution. The explanation noted that in the most serious incidents of pollution, violators could be subject to the death penalty.

Simultaneously, the SPC and SPP issued a joint interpretation that provides guidance on “food-related criminal cases” following the 2011 inclusion of several new provisions in the Criminal Law. While the figures on the number of food-safety criminal cases are not publicly available, it was reported in China Daily that “[i]n 2012, cases concluded by the courts rose 224.62 percent compared with 2011 and 257.48 percent more suspects were convicted.”

Recent efforts further indicate an increased willingness by China to use criminal law against shady financial transactions. This spring, several bond fund managers were taken into custody “after speculation that the regulatory authorities, including the central bank, would carry out a massive investigation into illegal bond trading.” These investigations have been directly tied to Wang Qishan, the current head of the Party’s disciplinary apparatus who previously served in high-ranking posts covering economic matters. The state-run media has also reported an uptick in prosecutions for “illegal fundraising” because, as it was noted by Liu Wenxi, deputy director of the economic crime investigation bureau in the Ministry of Public Security, “[i]llegal fundraising severely disrupts the country’s economic and financial order, and harms the interests of the public, and we should resolutely crack down on such crimes.”

Although pollution, food safety, and financial markets do not at first glance appear to be connected, taken together, the Chinese government’s rhetoric suggests a more robust use of criminal law for economic ends. As explained in more detail in my paper, China’s instrumental use of criminal law is not new. However, recent developments indicate a possible turn to a sustained, sophisticated, and resolute response to economically detrimental activities, not the sporadic crackdowns that have thus far punctuated the decades of China’s rapid economic growth.

This is not to say that China does not care about the physical harm caused by pollution and tainted products. Instead, it merely posits that the harsh punishments are better understood as also serving the derivative goal of bolstering public confidence and, in turn, benefiting the economy. In light of widespread concerns about consumer products as exemplified by efforts to hand-import baby formula, sporadic prosecutions and assurances from government officials that the food safety situation is “overall stable and getting better” are unlikely to be sufficient to quell concerns: a more comprehensive response is needed. As Yanzhong noted in a recent blog, the lack of regulatory capacity in China today is a key problem with food safety. Criminal law presents an alternative means of addressing tainted consumer products until such time as the administrative and civil law systems are up to the task.

From a human rights perspective, China has far to go both with respect to implementing procedural protections in the newly revised Criminal Procedure Law and generally bringing other exercises of the state’s coercive powers in line with international norms. As Xi Jinping and his cohorts use criminal law to address activities that weaken the fabric of China’s future economic health, significant questions remain whether they will do so in a manner that even lives up to the standards that China has set for itself. If these human rights concerns can be addressed, perhaps it is not such a bad thing for China to lean on criminal law. While questioning whether the death penalty is ever an appropriate punishment, beyond economic implications, using severe punishments short of execution is understandable in light of increasing evidence that pollution is significantly reducing people’s lifespans. Even if a polluter’s intent is not to cause physical harm, perhaps it should be criminal homicide based on negligence or recklessness to end someone’s life prematurely as a result of pollution.

This article originally appeared in the Council on Foreign Relations blog “Asia Unbound” on August 1, 2013.