Death row inmates, organ donation and sentence reduction

Jiang Benhua, a death penalty defendant, is trying to have his sentence reduced by exploiting the ambiguities, vague formulations and catch-all clauses to be found in PRC judicial interpretations.

The document in question is the 1998 SPC Interpretation on some problems concerning legislation applicable to voluntary surrender and meritorious service [Interpretation on meritorious service] (最高人民法院关于处理自首和立功具体应用法律若干问题的解释).

On December 4, 2009, Jiang was found guilty by the Xi'an Intermediate People's Court of charges of robbery and murder (at least - the verdict is not available), receiving a death sentence. Jiang committed his first robbery in Xi'an on May 8, 2008 taking 200 yuan from a woman he attempted to rape and then stabbed in the lower abdomen. On May 10, he and an accomplice robbed a driver of 15 yuan and then killed him. Jiang carried out a third robbery (450 yuan) on May 11, with three accomplices.

Jiang handed himself in to the police in January 2009, as his crimes were discovered and a wanted order was issued. There would be some ground to obtain a sentence reduction by claiming that Jiang surrendered. Jiang and his lawyer have instead appealed the first instance judgement claiming that Jiang rendered meritorious service, and therefore he deserves a sentence reduction.

The meritorious service in question consists of Jiang's choice to donate his organs, should the Shaanxi Higher People's Court decide to uphold the first instance judgement. Art. 7, Interpretation on meritorious service, lists "other important contributions to the state and society, and other behaviours" as a form of meritorious service. So Jiang and his lawyer aptly chose to exploit its vagueness.

This claim yielded a paradox: I will donate my organs, and render meritorious service, if I will be executed. If I will get a suspended or life sentence, I won't be able to render meritorious service. The sentence reduction depends on my being dead, a condition that cannot exist if the court accepts my claim.

As it could be expected, the case elicited mixed reactions, mentioned in this article. A first question was whether death row inmates possess full civil capacity (完全民事能力). The answer is, obviously: YES.

Zuo Weimin (Sichuan University), framed the problem in terms of rights of death penalty defendants, stating that defendants have the right to choose to donate their organs, and recipients have the right to choose whether to accept them.

Geng Minren (Shaanxi Lawyers' Association) - echoed by Jia Yu (Xibei Zhengfa Daxue, Dean) stated that death penalty defendants are holders of all of their rights, with the exception of political rights, therefore they have the right to freely dispose of their organs.

An anonymous scholar at Zhengfa Daxue opposed the practice of transplanting organs from executed prisoners, calling for its abolition: "even if a death row inmate agrees, his organs should not be transplanted neither when he is dead, nor when he is still alive."

A second problem regarded the meaning of "other important contributions to the state and society, and other behaviours": does organ donation count as a contribution to society?

Fan Chongyi (Zhengfa Daxue) argued that organ donation does not fall within the scope of statutory mitigating circumstances, as meritorious service。

Bing Songren (Zhengfa Daxue), observed that there exists no precendent for such a decision, and besides organ donation is not listed as a form of meritorious service (of course! but the point here is the existence of a vague formulation).

Wang Zuofu (Zhengfa Daxue), suggested that a judicial interpretation be drafted and circulated to solicit opinions - and set an unambiguous standard.

As of today, the second instance verdict on Jiang Benhua is yet to be issued


最高人民法院 最高人民检察院 公安部 司法部 卫生部 民政部关于利用死刑罪犯尸体或尸体器官的暂行规定




















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