A bargain at twice the speed：

Contents:

Intoduction

PILOT OVERVIEW

Eligible Cases

Duty Counsel System

Structure of the Expedited Procedures:

Investigation

Review for Prosecution

Trial

Voluntariness

Sentencing/ Non-custodial measures

The Annual Report

Intoduction

Following the 2013 abolition of re-education through labor (RTL) – the notorious administrative punishment system that allowed Chinese police to unilaterally elect to incarcerate offenders for up to 4 years- many have questioned what might replace it. What new systems or procedures might arise to address the thousands of low level-level offenders previously put in RTL each year, and will those systems be as susceptible to abuse as RTL infamously was? A massive ongoing pilot project on plea bargaining is one important part of the answer to these questions; streamlining court procedures for minor criminal offences, and emphasizing mediation and the use of non-custodial or semi-custodial community corrections measures. A report on the progress of these efforts has recently been released; giving some insight into what is likely to become a major component of the Chinese criminal justice system.

Before considering the pilots, however, it needs to be said that looking for a ‘replacement’ for RTL is in some ways asking the wrong question. First, by the time of its abolition, RTL was already a shadow of its former self. At one point，the system had housed some 300,000 detainees, but by 2012 this was down to about 60,000, most of who would complete their terms before abolition took effect. There are many explanations for this rapid decline, but one major factor was the rise of another administrative punishment system – compulsory drug treatment centers (强制戒毒所). These were often housed in the very same facilities as RTL centers and reclassified an increasingly large percentage of the former RTL population while still giving police almost total control over who was sentenced. In 2012, drug offenders in these facilities were said to number around 200,000, and, post-RTL, the number for 2015  has been put at around 250,000.  Following the abolition of RTL, many of the former combined drug rehab/RTL centers were able to simply adjust their names, and then carry on doing what had already become the majority of their work. In a very real sense, RTL was being replaced before, not after, its abolition.

Of course, RTL was despised in part because so many of those in it, such as petitioners, dissidents and other ‘undesirables’ should never have been involved with law enforcement at all. Questions about the possible emergence of a ‘New RTL’  reflect understandable vigilance against new tools of police abuse or new ways to incapacitate and isolate such people with minimal procedure and fuss. The fear is that police, after decades of reliance on RTL, will simply reinvent RTL by another name; and reports of  extra-legal ‘irregular petitioning detention centers”, “legal education centers” and other such variations , show that this fear is sadly not without basis.

Every coercive law enforcement mechanism, especially detention, runs the risk of abuse, and when there is a lack of transparency and adequate channels for challenging state action, abuse becomes a given. This is true whether the system is considered administrative or criminal, and regardless of the systems’ statutory basis. After the abolition of RTL, the question should not just be how to find and stop new sites for abuse, but how to create procedures that minimize the risk of injustice whenever state power is exercised to punish citizens.

Reforms to the Criminal Procedure Law in 2012, while still far from fully implemented, have greatly increased procedural protections for those accused of crimes. These protections, however, do not extend to the administrative punishment systems where misconduct is viewed as ‘violations’ rather than ‘crimes’.  The administrative punishment systems that remain today still allow for years of detention for drug users, prostitution offenses (收容教育), or certain juvenile offenders (收容教养), and also for lighter punishments under the Administrative Security Punishments Law (治安管理惩罚法), without a court hearing.

In part to remedy this situation and to narrow the gap between the administrative and criminal punishment tracks, as the abolition of RTL approached,  the Supreme People’s Court and Supreme People’s Procuratorate jointly issued a number of judicial interpretations lowering the threshold of criminality for several offenses, effectively bringing more conduct on to the criminal path: [ See e.g. interpretations on theft (抢夺)，provocation/picking quarrels (寻衅滋事)，blackmail and extortion (敲诈勒索)  and burglary (盗窃). ] Putting aside questions raised by some scholars of whether this quasi-legislative move is appropriate judicial action, it does bring more cases into the courts, where they will be heard under the protections of the Criminal Procedure Law (CPL).

The resulting higher caseloads and increased procedural complexity of the improved criminal procedures, however, will inevitably create an increased drain on judicial resources, and this is where the new pilot projects come in. The CPL already features an abridged  ‘summary procedure’ used where the defendant admits guilt and there are few points of contention for trial, but the new ‘expedited procedure’ goes much further, essentially instituting a system of plea bargaining where most of the trial can be waived and a lighter sentence given if the defendant has no objections to a specific sentencing recommendation put forward by the prosecution. Such a system, however, envisions a reduced role of the courts in most trials, and finding a balance between judicial efficiency and procedural protections is going to be the core issue moving forward.

PILOT OVERVIEW

The new expedited procedures are not yet codified, but the current pilot projects were directly authorized by the Standing Committee of the National People’s Congress, to be carried out by the Supreme People’s Court (SPC) and Supreme People’s Procuratorate (SPP), and expressly call for future statutory amendments adopting successful experiences of the pilots. The “Authorization”, passed on June 26^th, 2014 calls for the SPC and SPP to develop and initiate a two-year pilot project in eighteen cities (see Table 1), but leaves the formulation of specific procedures to the SPC and SPP. The pilots officially began on August 26, 2014, with the issuance of Joint Pilot Measures by the SPC and SPP, together with the Ministry of Public Security and Ministry of Justice (the “Joint Measures”), and already include 183 basic-level courts and procuratorates.

Eligible Cases

The NPC Authorization provided clear but broad requirements for when the expedited procedures might be invoked, allowing their use only when:

• The facts are clear and the evidence is sufficient– [This is largely a restatement of the standard for both indictment and conviction, so any viable criminal case should meet this standard].
• The defendant voluntarily admits the crime
• The parties have no disagreement on the applicable law
• The sentence might be less than one year imprisonment, short term detention (拘役), controlled release （管制） or a fine alone.

The Joint Measures for pilot implementation go significantly beyond this list by adding further conditions for initiating the expedited procedures, and also listing express prohibitions for when they must not be used. This strategy and most of the substance of the additional requirements closely parallels the requirements for using the Summary Procedures already codified in the Criminal Procedure Law.

In addition to the Authorizations’ requirements mentioned above, the Measures require that:

• The defendant both admit the crime and have no objections to the alleged facts [following summary procedures at CPL 208(2)
• The defendant agrees to accept the prosecutors’ sentencing recommendation– this is the critical component in transforming the expedited procedures from a simple ‘fast-track’ into a plea bargaining mechanism
• The defendant agrees to using the expedited procedures – [following summary procedures at CPL 208 (3), although here ‘agree’ 同意 is used rather than have no objections’ 没有意义’] Other rules discussed below require the courts to verify that the defendant understands what rights he is forfeiting by using the simplified procedures.

Under article 2  of the Joint Measures, the expedited procedures must NOT be used:

1. Where the criminal suspect or defendant is a juvenile, is blind, deaf, or mute or is a mentally ill person who still has criminal capacity [following summary procedures at CPL 209(1)]
2. Where any of the criminal suspect or defendants In a jointly committed crime has objections to the alleged facts, charges or sentencing recommendation. [following summary procedures at 209 (3)]
3. Where the criminal suspect or defendant admits guilt, but upon review it is found that no crime has occurred or the defender makes a not-guilty plea.
4. Where a defendant has no objections to the sentencing recommendation, but upon review the recommendation is found to be improper;
5. Where  a criminal suspect or defendant has not reached a mediation or settlement agreement on compensation for damages, restoration of original conditions, apology or other matters with the victims their legal representatives or near;
6. Where the criminal suspect or defendant has violated conditions of a compulsory measures, seriously affecting the normal criminal trial activity;
7. Where criminal suspects or defendants have statutory aggravating circumstances such as recidivism or corruption of minors;
8. Where application of expedited procedures is otherwise inappropriate. [following summary procedures, at 209 (4)]

Of the prohibitions above, item number five (5), requiring that the offender have reached a mediation or settlement agreement with the victims, is conspicuous in that it creates a new affirmative condition for use of the procedures rather than truly providing a limit on their use. This requirement is likely added to ensure that victims are also satisfied with the use of the expedited procedures, although their consent is not specifically required.  As will be discussed later, use of the expedited procedures is incentivized by offering reduced sentences, and it is possible that some victims would object to this practice as ‘making a deal with the devil’ in which the State grants a lower sentence in exchange for being saved the burden of a full trial and proving guilt. Police, Prosecutors and courts are urged to encourage mediation and restitution in the  pilot implementation regulations, but this is a burdensome requirement that might greatly reduce use of the procedures.

It is also worth noting that one prohibition on the use of summary procedures was not imported from the CPL- a limit on the use of the procedures in cases of major social importance.

Scope of possible charges

The Authorization also provides an open-ended list of seven offenses for which the expedited procedures might appropriately be used. Four additional types of offense have been added in the Joint Measures in a list that is expanded, but seems to be exclusive.[ See Box 2.]

Duty Counsel System

One of the most groundbreaking innovations of these procedures is that they provide for the creation of a ‘duty counsel system’ providing rapid legal assistance to those whose cases might be on the expedited procedures track. The Duty counsel system includes setting up a pool of legal aid attorneys who will be stationed in courts and detention centers, ready to work with suspects and defendants.

The Joint Measures do not give much detail on this system, only calling for its establishment and saying that where suspects and defendants apply for legal aid, the duty counselor ‘shall’ [应当] be assigned to provide it. There is no requirement that the person requesting legal aid actually be eligible for legal aid under any law, and it is possible that this was meant as an extension of services to a larger group, so that the lawyer might explore and encourage the option of accepting the expedited procedures (i.e. plea bargaining) with them. As many criminal defendants in China still lack any representation, even an initial consultation with qualified counsel could prove invaluable even beyond the choice to use the expedited procedures.

Specific implementation measures for a pilot site in Nanjing (the “Nanjing Measures”),  provide further information into the use of duty counsel there.  Under those rules, once a case has been selected for use of the expedited procedures, a duty counselor shall be appointed to provide legal assistance to suspects or defendants who have not already retained counsel. Within three business days of being appointed or retained as counsel in an expedited procedure case, the lawyer shall both meet with the client and complete their reading of the case file; although it is unclear what will happen should they fail to, or be prevented from doing so.

In areas where there are a substantial number of cases using the expedited procedures, the Nanjing Measures suggest that a duty counselor be present at the court and detention center on all business days, and in areas where such cases are less common, this might be reduced, but availability should not be less than two days a week. The courts and detention centers are expected to provide viable working space and facilities for the duty counselors to do their work, and funding is to come from the local government legal aid funds at that level.

The scope of the legal assistance to be offered by duty counsel isn’t entirely clear from the various pilot materials available. The role is consistently phrased as one of giving ‘legal assistance’ rather than ‘providing a defense’ or ‘serve as defender’ , and this suggests that the duty counselors may have a more limited role than full defense counsel. It is clear that they will be able to meet with suspects or defendants and to access the case file, but whether they will also meet with procurators or appear at trial on the client’s behalf  is not clear.

Structure of the Expedited Procedures:

Compared with the Summary Procedures [CPL Articles 208-215], which emphasize shortened court proceedings; the expedited procedures have a greater impact at early phases of the criminal process.

Investigation

The Joint Measures provide that public security organs may recommend that the procuratorate follow expedited procedures[JM 5], but the Nanjing measures suggest even greater changes on police practice. Under those measures, if the police request that the procuratorate approve formal arrest in cases eligible for the expedited procedures, they shall also give a written recommendation to the procuratorate to apply the expedited procedures.  Should the procuratorate agree that the conditions for using the procedures are met, they will decide whether to approve arrest within 5 days (down from 7 for normal cases) and notify the public security organs to complete investigation within 15 days [NJ 15].

Review for Prosecution

When a case within the scope of application for expedited procedures is transferred for review for prosecution, the Joint Measures hold that procurators should now ‘usually’ make a decision on whether to indict within 8 days of accepting the case [JM 8]. This is greatly reduced from the base period of one month review under the ordinary procedures [CPL 169]. Again, the Nanjing Measures provide further detail saying that when the public security organs have recommended the expedited procedures, procuratorate personnel shall be put on the case the same day it is accepted, and the decision to indict shall be made within 8 business days of receiving the recommendation, or within 8 days of the procuratorate’s own decision to use the expedited procedures if there was no such recommendation [NJ 23].

The prosecutors must also develop a sentencing recommendation and meet with criminal suspects to see if they accept the recommendation and the use of expedited procedures. If the suspects concede their criminal acts as charged, and have no objections to both the sentencing recommendation and use of expedited procedures, the procuratorate will have them sign a written acknowledgment, to be transferred to the court along with the indictment, which may be simplified [JM 6, 8].

There are no specific procedures or comments on how this conversation between prosecutors and suspects should go, but this is clearly the key phase of the system where any ‘plea bargaining’ will occur. There is no mention, for example, whether appointed or retained counsel, including duty counsel, are permitted to attend this meeting. A criminal defendant will have difficulty evaluating his options and negotiating with the prosecution without informed professional legal assistance on hand.

The extent of actual ‘bargaining’ that will be possible is, in any event, unknown.  In a system where trials end in conviction 99.9% of the time, and sentencing is likely to follow government guideline ranges, there is little to be gained by refusing a sentencing recommendation.  This might not seem like such a large problem – just speeding up the inevitable in the most minor of cases, and with the possibility of leniency at that- until one realizes that the same ‘inevitable’ path would present itself to the guilty and innocent alike.

Evidence from abroad, including the U.S. ‘s robust plea bargaining regimen, highlights the danger of innocent persons pleading guilty to offenses they haven’t committed when it seems like the better of two bad options. China’s recent criminal procedure reforms have emphasized preventing wrongful convictions through mechanisms such as excluding coerced confessions, and the policy of making in-court proceedings the focal point of criminal trials to ensure that an impartial court hears and decides all cases. The greatest concern in the new pilots, however is that a plea bargaining system runs the risk of almost entirely sidestepping the court and these new procedures, to put control in the hands of the prosecution.

Trial

As with the Summary Procedures, the most prominent changes are still at the courthouse, where expedited trials should be completed within a mere 7 days of the case being accepted (down from 2-3 months for most criminal cases and 20 days in the Summary Procedures). A number of modifications are made to ensure that this tight timeframe is feasible, including trial conducted by a single judge rather than China’s commonly used three-person bench. The indictment will be read in summary form, and verification of basic information can be taken care of more quickly, or even consolidated across several cases. Most critically, there will be no opportunity for courtroom investigation and debate, the trial phases in which facts and evidence are explored and examined at court, although the defendant will still have the right to make a final statement. This is a major deviation from even the Summary Procedures, where investigation and debate are still permitted at the discretion of the court, as in the ordinary procedures.

For the convenience of judges and the collection of data, standardized form judgments shall be used in expedited procedures cases.

Voluntariness

Because consenting to the use of expedited procedures waives the right to a full trial, it is essential that this only happens where the defendant knowingly and voluntarily decides to do so. While access to duty counsel is the best method for ensuring that defendants understand their situation, the pilot methods also put in other procedural safeguards to try and ensure that the decision is informed. These include  both the courts and procuratorates informing the defendant and his counsel in writing of the decision and all relevant information at several stages throughout the process, as well as obtaining a written acknowledgment signed by defendants before trial.

At court, the Joint Measures specifically require the judge to question the defendant and other parties about their decision to determine if they are voluntary [JM 11]. At any point where it is discovered that the procedures should not be used, including the defendant having not freely agreed to use of the expedited procedures, the case will instead be handled under either the summary or regular procedures [JM 14]. This includes situations mentioned in the basic requirements for use of the procedures- such as where a suspect has admitted the crime, but then begins to argue facts, or has consented to a sentencing recommendation that is improper, or simply changes their mind.

Sentencing/ Non-custodial measures

As mentioned above, the courts are authorized to give lenient sentences when the expedited procedures are used [JM 13]. This not only incentivizes use of the procedures, but may also reflect that many of the requirements for use of the expedited procedures are already commonly invoked mitigating factors, such as showing repentance and returning unlawful gains to gain the forgiveness of the victims. Remember, the procedures may not be used where there are statutory aggravating factors—likely to avoid the appearance of the expedited procedures ever assisting serious perpetrators avoid responsibility.

The Nanjing Measures are a bit more specific about what reduction in penalty may be given. They allow that courts may give (approve) a sentence that is an additional 20% below the sentence arrived at using the National Sentencing Guidelines‘ and their local equivalents’ formulas for adjusting a crime-specific bases sentence. [NM 34].  The final sentence must not, however, go below the statutory penalty range for the offense, unless there are circumstances specifically legislated to allow for such a reduction (减刑情节). This means that where a sentence at the low end of the range is already expected, there is less motivation for defendants to consent to using the expedited procedures and forfeiting their right to a full trial- unless they fear reprisal by the prosecution should they insist on a trial.

Beyond leniency, the pilots also emphasize the use of non-custodial measures when possible. Even pre-trial, the Joint Measures provide that use of release on guarantee and residential surveillance should be the norm, rather than formal arrest and continued incarceration [JM 3]. This is critical, because in Chinese criminal procedure the investigation period can itself be quite long, sometimes resulting in a suspect having been detained longer than they might have ultimately served for the offense. They are entitled to compensation for this lost time in some situations, but if finally found guilty and given a non-custodial suspended sentence, they will get none.

Non-custodial community corrections measures are also set to play a larger role, with police, prosecutors, and courts all asked to request that an initial assessment of the appropriateness of community corrections be conducted whenever a suspect or defendant might be given a suspended sentence or controlled release as a punishment. Community Corrections is a system that has developed rapidly since 2003, with supporting legislation said to be forthcoming. There is not a single clear model for community corrections, but instead the term is used to refer to a variety of control and rehabilitation measures applied to those outside of corrections facilities, be they out on parole, the probation-like suspended sentence system, or under supervision obligations of ‘controlled release’ penalties. Sanctions can include participation in job education/placement, legal education, electronic monitoring, and halfway houses, with wide variation in the extent to which freedom is limited. Programs are generally operated by some combination of legal administrative professionals, social workers, and members of local residents or village committees.

Like the expedited procedures themselves, community corrections is a system that will require much hard work to make it succeed. There can be great potential in releasing offenders into a healing supervised community setting, but as a coercive measure, there is also great risk that they will become an additional and unnecessary restriction on those who should be more completely released. [For more detail on history and practice of CC see Community Corrections in China: Development and Challenges.]

The Annual Report

To understand the potential impact of the expedited procedure, the chart below summarizes many of the numbers available in the mid-term pilot project report by the SPC and the SPP.

The numbers are largely self-explanatory, but few initial thoughts:

• It can be seen that in pilot areas, legal aid has been used in a great number of cases than ultimately applied the expedited procedures- this could show that legal aid is being provided broadly to help defendants explore their options but not always guiding towards the expedited procedures, or could be due to cases not being appropriate for other reasons.
• The use of non-custodial pretrial measures and sentencing are both substantially lower than for the Summary Procedures, but perhaps not as much lower as they should be. While we know nothing about the specific cases involved, the summary procedures can be applied to almost all offenses except those that might be punished by life imprisonment or death. One would expect the average punishment, and the provenance of pre-trial detention, to be higher for this group to account for the more serious offenders.

PART II of this report will conduct a separate evaluation of the actual implementation of the expedited procedure pilots based on additional data sources.