Working Paper: A Plea for Greater Reform and Engagement:

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Although only added to the Law in late 2018, China’s new ‘Plea Leniency’ system already accounts for over 85% of its criminal cases.[1] The system, which encourages confessions in exchange for more lenient sentences, is one of several interconnected legal reforms that promise a host of improvements including universal access to defense counsel, reduced pre-trial detention, and more meaningful criminal trials. In practice, however, these same reforms have the potential to undermine the already limited protections afforded to China’s criminal defendants and risk encouraging false confessions. For foreigners invested in the evolution of Chinese Law, the emergence of the plea leniency system has an added importance – it was directly inspired by the U.S. plea bargaining system.

Before delving into the specifics of the new plea leniency system, this article considers how China adopts and adapts foreign legal models in its criminal justice reforms. Additional examples are raised to show the extent of this practice, and the reasons that such legal transplants have varying degrees of success. Details of the plea leniency system are then introduced and contrasted with American plea bargaining, highlighting challenges in implementation and offering suggestions for further reform. Finally, I make a plea of my own for continued engagement with China on legal reforms. Such engagement is essential not only to learn about and help improve rights protections in the criminal justice system of the world’s most populous country, but also to better understand the goals and ambitions of China’s government.

Background- Criminal Justice Reform in China

Perhaps contrary to expectations, criminal justice reform in China is actually relatively dynamic. Consider that the PRC’s first Criminal Procedure Law, the primary law governing the rights of the accused and limits on police power, was only implemented in 1979. In the just 40 years following, the courts have become unrecognizably more sophisticated. Trial judges, once military officers with little legal training, are now rigorously selected from among qualified candidates.[2] Criminal procedures have been continuously updated as the rapid rise of the plea leniency system demonstrates, and often by conducting complex regional pilot projects to evaluate promising reforms in action before enshrining them in law. The impact and value of these ongoing reforms in practice cannot be discounted. For example, in just the last 20 years, criminal trials resulting in lengthy jail terms of 3 years or more have decreased from being nearly half of all cases to less than a quarter.[3]

China’s criminal justice journey has only just begun, but the road has already been riddled with setbacks, with many bold reforms ultimately collapsing under the weight of pressures from politics, policing, and public opinion. The critical engagement of legal academics and lawyers, essential to achieving what gains have already been made, has too often been met with punishment. Yet, uneven as the progress has been, criminal justice in China is anything but static.

China looks abroad:

It should also be recognized that China regularly looks abroad for inspiration in its criminal justice reforms. Most fundamental issues of criminal justice, such as the desire to deter crime and to foster a sense of public security and confidence in law enforcement, are universal, and Chinese legislators have consistently been willing to look to foreign models rather than reinvent the wheel. This includes both studying foreign laws and a consideration of China’s own compliance with international law norms. Beyond purely academic research, Chinese scholars regularly travel overseas on study tours to better understand foreign legal systems in practice, and foreign experts have at times been able to directly participate or offer observations on ongoing reforms in China. The introduction of China’s 2018 Foreign NGO Law greatly limited opportunities for close involvement by most legally-minded foreign organizations, but even now academic and governmental exchanges continue.

China’s long-standing policy has been to learn from foreign models, but not to blindly embrace them.[4] This means that even as China adopts practices from abroad, it will try to adapt them to better suit the existing legal situation and broader social conditions to ensure their efficacy. This adaptation, along with the differing national conditions that make it necessary, can sometimes mean that the procedures ultimately implemented in China may take a radically different form than the foreign models that inspired them.

Consider for example China’s embrace of diversion programs for juvenile criminal offenders. ‘Juvenile diversion’ refers to alternatives to the formal justice system through which the law provides underage offenders an opportunity to avoid criminal prosecution if they successfully complete rehabilitative services during a probationary period. Programs of this nature have proven more effective than straight punishments at reducing recidivism for many minor offenders. In 2012, China’s Criminal Procedure Law was amended to allow prosecutors to implement a form of diversion known as ‘conditional non-prosecution’ (futiaojian buqisu)[5], but even today that system plays a relatively small role in the country’s juvenile justice practice with only some 11,000 offenders being ‘diverted’ in 2020, which was already a substantial increase from prior years.[6]

The failure of this type of diversion to gain traction in China can be traced to a number of systemic and national differences that weren’t fully considered in transplanting the system. First, diversion outside the justice system wasn’t a good conceptual fit in China’s legal system as most at-risk youth were already outside the criminal justice system. China’s age of criminal responsibility in 2012 was 14, but only for more serious offenses that would likely be unsuitable for diversion anyway.[7] Only youths 16 years or older could be held criminally liable for the non-violent offenses most likely to be diverted. Unlike the United States and other jurisdictions where minors below the local age of criminal responsibility are tried in quasi-criminal juvenile court proceedings, in China these young offenders were most often simply released to their parents. This means that for China’s youngest offenders to receive necessary services, they needed a way to be included in the system, not diverted out of it.

By making prosecutors the gatekeepers for juvenile diversion, services were limited to those offenders already in the criminal justice system. It also left the prosecutors responsible for identifying suitable services or placements that young offenders could be diverted to. In many jurisdictions outside of China, it is civil society that steps forward to create such programming, often with the support of government grants or funded through government procurement. In China, however, tight regulation has left civil society underdeveloped and with little capacity to provide such services. Only in wealthier areas such as Beijing and Shanghai, do well-established specialized juvenile prosecution teams have access to greater resources making them able to develop more innovative solutions such as public service in libraries, residential placements, or work placements in the businesses of philanthropic community members. Even where program options are available, however, diversion means substantial additional work for the prosecutors who will be responsible for supervision and follow-up visits throughout the minors’ probation, discouraging its use.

From the young offenders’ perspective, diversion programs are often viewed as more onerous than the outcome they might receive at trial, such as a suspended sentence –a type of probation where the primary requirement is to simply avoid further crime. If defendants and their families cannot be convinced that the rehabilitation services are actually beneficial to them, the only advantage of diversion is avoiding a conviction record. Unfortunately, this benefit was undermined by another positive reform adopted around the same time which requires the sealing of juvenile criminal records, leaving defendants with little reason to pursue diversion.

Examples like this show how legal transplants can fall flat or be transformed on entering the Chinese legal environment, but they don’t tell the whole story. Just as the adopted procedures themselves may take unexpected forms, they may also bring surprising benefits. The specific mechanism of ‘conditional non-prosecution’ may not have had immediate success as a form of juvenile diversion, but the underlying concept of providing rehabilitative services to young offenders is now firmly enshrined in law. Early efforts to provide such services highlighted the obstacles to implementation, and that experience is now guiding rehabilitative services for a broader range of juveniles. In the short term, prosecutors’ offices considering diversion began collaborating with social workers to assess suitable candidates and these social workers brought new perspectives with wider-reaching impact on juvenile justice practice.

 

The world looks at China

Ironically, while many in China are eager to learn about and from foreign law, efforts by foreigners to understand the Chinese system are often met with scorn outside of China. It’s not uncommon to be bluntly asked ‘does China even have law?’, or told that “the law in China is whatever the Party wants it to be.’ Yet, were Chinese law ‘whatever the party wants it to be,’ then understanding the enormous efforts put into these reforms should provide invaluable insight into what the party wants – at least as far as its criminal justice system is concerned. And if these reforms are all for show, we should be asking what audience that show is intended for, and what message it seeks to send.

Of course, what critics really mean to suggest is that Party authorities can capriciously intervene in every trial, undermining any value of understanding the law. Such cynicism isn’t hard to understand so long as there are still overtly political cases like that of the two Canadians, Michael Kovrig and Michael Spavor, held in isolated detention for over 2 years,[8] or high-profile forced confessions sometimes televised before trial.[9] The reality, however, is more complex, with interference in cases more likely to result from regional protectionism or corruption than the political direction of the national authorities.

Stopping improper case interference has actually been the focus of another series of recent reforms encouraging reporting and prosecution of officials who improperly meddle or pry into cases.[10] In 2020 alone, nearly 70,000 such cases were reported- an increase of 5.8 times that reported in the previous two years combined.[11] This illustrates the scope of the problem, but also gives hope that it might in time be more successfully addressed through the new reforms.

More importantly, through this reform and others, we gain insight into what the Party might want from its criminal justice system. First is control. The direct goal of the reform is identifying and weeding out those officials who act contrary to the national policy agenda supporting more independent trials and undermine its implementation. Control, however, is only a means to the greater goal of creating a system that is perceived as fair and legitimate domestically.

Xi Jinping is often quoted as saying that the people should be able to see that justice is served from every criminal case.[12] Corruption, rigged trials, and wrongful convictions undermine the credibility of the courts and thus the legitimacy of Party rule. When the courts are seen as unable to fairly and effectively resolve disputes, the people look elsewhere for solutions, often through more disruptive methods such as by petitioning at government offices or taking the law into their own hands. When people view the criminal justice and law enforcement system as arbitrary or biased against them, they feel oppressed- or give up on even trying to abide by the laws. Justice requires a fair and independent judiciary, but legitimate dispute resolution and criminal justice systems are also necessary for stable governance.

One should have no illusions about the current state of China’s criminal justice system. It is very much a work-in-progress and not a system one would want to find themselves in. But it would be equally foolish to ignore the ongoing and dynamic reforms that are underway. They are worth study both to understand their successes and setbacks, and for what they tell us about governance in China.

The Plea Leniency System

The plea leniency system, formally known as the ‘system of leniency for those who admit guilt and accept punishment’ (renzuirenfacongkuangzhidu) began as an unapologetic transplant of the US plea bargaining system. This relationship was ultimately downplayed, in part because the word ‘bargain’ suggested that the guilty were getting off easy, but also more importantly because fundamental differences in the two systems became increasingly apparent. Although the system is still quite new, it already accounts for the majority of criminal cases.

Plea Bargaining, American Style

Plea bargaining, familiar to many in the US from popular crime shows, involves negotiations between prosecutors and defendants and their attorneys in which defendants agree to plead guilty in exchange for a lesser charge, a lighter sentence, or other preferential treatment in resolving their case. Around 90-95% of criminal cases in the U.S. are resolved through plea bargaining so that even the Supreme Court has conceded that “…criminal justice today is for the most part a system of pleas, not a system of trials.” [13]

A guilty plea in the U.S. system is more than a confession or admission of guilt, it is a waiver of rights. A confession is only a piece of evidence that can be recanted or refuted, but a guilty plea waives Constitutional trial rights, including the 5th Amendment right against self-incrimination, the 6th Amendment rights to present a defense at trial by confronting witnesses and producing evidence, and the right to a trial by a jury. A guilty plea entered through a plea bargain usually also waives the right to appeal.

Due to the importance of these rights, the U.S. system is at pains to ensure that guilty pleas are entered knowingly and voluntarily. When defendants enter a guilty plea, judges will question them to confirm that they understand the charges against them and the potential consequences of the plea, including secondary consequences such as the impact a conviction might have on one’s immigration status. The defendants’ lawyers will have already discussed all of this with the defendant in helping them negotiate an acceptable plea agreement with the prosecutors, but through this questioning, the court creates a record of the defendant’s competence and willingness to waive their rights to trial, protecting the plea from most subsequent legal challenges.

There are a number of reasons for the US’s immense reliance on plea bargaining. First, it preserves judicial resources and efficiency. Trials in the U.S. can be lengthy and labor-intensive. Were every defendant to insist on a trial by jury, as is their right, the courts’ financial and human resources would be strained to the point of collapse. Plea bargaining allows the courts to reserve these resources for contested cases by quickly clearing cases with minimal factual and legal disagreement. In the same fashion, plea bargaining also allows the prosecution and defense to conserve their own resources by avoiding lengthy trials.

Perhaps more importantly, plea bargaining allows the prosecution and the defense to avoid the risk of an uncertain outcome at trial. By pleading guilty, defendants can limit the risk of harsher punishment and avoid the negative publicity from information potentially disclosed at trial. The prosecution avoids the risk of publicly losing a conviction after committing time and resources in preparation. Even though defendants waive their trial rights as part of a plea bargain, it is their right to demand a trial that gives them leverage to negotiate with the prosecution in reaching the plea agreement.

It likely comes as no surprise that the prosecutors have substantially more leverage in plea negotiations, leading to the major criticisms of plea bargaining. Prosecutors have vast discretion in how they prosecute crimes, including the choice of charges. This is not to say that they can ignore the facts, but they can choose what charges to bring based on what they are confident they are able to prove- choosing between say “drug possession with intent to sell”, versus the more serious offense of participation in a larger drug distribution conspiracy. This selection of charges is regularly part of the ‘bargain’, with prosecutors threatening to pursue heavier offenses if they are forced to go to trial. The strength of such threats is amplified by congressionally legislated statutory minimum sentences, guaranteeing that a conviction at trial for certain offenses will receive much higher penalties if charged.

Critics of plea bargaining complain that it shifts the focus of criminal proceedings from the impartial judge and trial to the prosecutor’s less restrained discretion. While the defendant always reserves the right to demand their day in court, they may face a de facto ‘trial penalty’ in the form of higher sentences if they do so, discouraging the exercise of their rights. There is, unfortunately, evidence that defendants do sometimes plead guilty even when they are factually innocent. Even among the death row inmates who have been exonerated by the Innocence project’s use of DNA evidence, some 10% had pleaded guilty. It’s safe to assume the percentage is even higher for lesser crimes.

China’s Plea LeniencyPlea Bargaining with Chinese Characteristics:

China’s new plea leniency system[14] shares many features with U.S. plea bargaining: it requires an admission of guilt before a trial judgment is finalized, sentences are reduced in response to the confession, and the court must approve it. It also shares several of the same concerns: the fear of involuntary or coerced confessions and wrongful convictions. It is even intended to have the same main goal: ensuring that judicial resources are reserved for the cases where facts and law are most in contention. But China’s criminal justice environment is not the US’s, and as with other legal transplants, the emerging system has become something uniquely Chinese.

Evolution of plea leniency: Simpler and simpler

After being shown a video of an American plea hearing, in which the judge questions the defendant about the facts of the case to ensure the plea is truthful and voluntary, a Chinese prosecutor responded by saying- “I thought you said that there was no trial in plea cases.’

The confusion is understandable as Chinese criminal trials have historically been little more than a forum for announcing the outcome of a lengthy pretrial investigation and review process. China does not have a jury system, and witnesses rarely appear in court. While judges will question the parties and have the final authority to confirm the facts of the case and address any objections, once indicted by the prosecution, a conviction is largely guaranteed. Like the US plea hearing, Chinese trials’ main function is to review and confirm what has already been established pretrial, and only rarely to challenge it.

Another reform, complementary to the plea leniency procedures, is China’s latest effort to make change this by making the criminal process more ‘trial-centered’ [15]but it has thus far not been as successful at enriching trial procedures as the plea leniency reform has been in avoiding them. This has led some to worry that the addition of further reduced procedures isn’t really conserving resources for more in-depth procedures in contested cases, so much as just simplifying an already overly-simple trial process.

Even before the advent of the plea leniency system, Chinese law applied fast-track abridged procedures where the defense conceded guilt. As early as 1996, the Criminal Procedure Law was amended to allow ‘summary procedures’ for minor criminal offenses punishable up to three-years. The summary procedures were exclusively a practical reform aimed at moving easy cases forward with less time spent reciting the facts and law in court. The defense position wasn’t really considered, and even the requirement that the defendant admit guilt was only added by the nation’s highest court in a later judicial interpretation. In 2003, these summary procedures were officially expanded to cover cases of all but the most serious offenses and rechristened the ‘simplified procedures’. The simplified procedures reduced the permissible trial times and allowed trial debate to be limited to only contested issues if the defense consented. In 2012, another amendment of the Criminal Procedure Law ultimately largely codified these new procedures.

The establishment of the plea leniency system began in 2014 with the introduction of an even further abridged process, known as the ‘expedited procedures’ (Sucai Chengxu) through a two year pilot project conducted in 18 cities across China. [16] Compared with earlier fast-track procedures, the expedited procedures emphasized quicker handling not only at trial, but faster police investigation and prosecutorial case review before trial as well. The entire process could be greatly minimized so long as the defendant admitted their guilt and accepted a sentencing recommendation put forward by the prosecution. Trial is almost entirely waived under these procedure, although the judges must still evaluate the voluntariness and legality of the defendant’s admission at court as in US plea hearings.

The expedited procedures pilot project proceeded cautiously, beginning with a narrowly limited scope of application to minimize the risk of injustice in imposing punishment without full process. Vulnerable populations, such as minors or the mentally impaired were entirely excluded to avoid the possibility of their being coerced, as they had been similarly excluded from the earlier simplified procedures. Moreover, the use of expedited procedures in the pilot was limited to 18 specified crimes, and even among these, only to the most minor offenses punishable by less than a year in prison. In addition to avoiding the appearance of injustice, the limit to minor crimes was meant to assure the public that more serious offenders were not somehow getting off easy as a result of the system. This concern can also be seen in other pilot rules such as the exclusion of any case with serious aggravating factors like corruption of minors through the offense, or for recidivists.

Because crime victims in China are considered a party to criminal cases and tend to be vocal in calling for heavier punishments, the pilot project rules even went so far as to require that the offender reach a settlement or compensation agreement with victims – ensuring that victims were satisfied before the expedited procedures could be applied. While victim/offender settlements are not unusual in China’s criminal procedure, this requirement seems to have greatly limited the number of cases in which the expedited procedures were applied. The majority of cases using expedited procedures during the pilots were drunk driving offenses, likely because there was no specific victim to consider. This requirement was later changed to require only reaching a settlement in any incidental civil lawsuits, although victim satisfaction remains an important consideration in sentencing.

A stated goal of the expedited procedures and the plea leniency system is reserving judicial resources for fuller trials in cases where the defendant denies the charges. The existence of earlier simplified procedures, however, raises the question of whether further simplification is necessary. Some have even asked if plea leniency should even be considered a new reform at all, or only a further extension and refinement of the existing law.

What would you say is new here, exactly?

Interestingly, a second two-year pilot project[17] beginning in 2016, following the initial expedited procedures pilot and first introducing the phrase ‘plea leniency system,’ nominally divorced the idea of leniency from the use of fast-track procedures. While rules for the new pilot fully incorporated the expedited procedures, plea leniency was said to be possible even when the ordinary trial procedures were used. This was likely to avoid the perception that prosecutors were making a ‘deal with the devil’ through which a lesser punishment was given simply in exchange for saving them the work of preparing for trial. Regardless, available data show that expedited procedures were still applied overwhelmingly in the pilot’s plea leniency cases (66%) with an additional 25% of cases handled through the simplified procedures. [18]

The idea of leniency for those who admit their crimes, is also hardly new to Chinese criminal justice. The early policy of “Leniency for those who confess, severity for those who resist” (坦白从宽,抗拒从严) remains familiar to many in China. That policy reflects China’s long-standing emphasis on confessions over other evidence, with ‘resist’ often being understood as simply a failure to confess. More recent reforms have tried to discourage reliance on confessions, requiring that they cannot be the sole basis of a conviction, and excluding coerced confessions.

A more modern policy slogan is ‘blending leniency and severity’. This slogan is intended to reflect that every case contains a mixture of factors calling for both more lenient and harsher treatment of a suspect, and that these diverse factors should be considered together. In practice, coming clean by truthfully recounting one’s crimes, demonstrating remorse or repentance, and seeking the victim’s forgiveness through settlement remain the most important factors for reducing sentences.[19] These are viewed as first steps towards the offenders’ redemption and rehabilitation, and such confessions and contrition have the added practical advantage of more definitively closing the case to future appeals or complaints from the victim.

Even the linkage of leniency to the use of abridged procedures isn’t really new to the plea leniency system. In 2003, for example a joint opinion of China’s highest court and prosecutors’ office held that leniency was appropriate where defendants did not object to the basic facts as alleged, voluntarily admitted guilt, and the simplified procedures were applied.[20] This is almost the same language that has now been codified for the plea leniency system and expedited procedures, again raising the question of what exactly is new in this round of reforms.

A plea but no bargain

What is most potentially new may be the aspect that is now most deliberately downplayed: the idea of a ‘bargain’ borrowed from the US system. Plea leniency and the use of expedited procedures require that the defendant not only confess, but also that they accept the sentencing recommendation put forward by the prosecution. This is the ‘accept punishment’ in the plea leniency system’s full name, the “system of leniency for those who admit guilt and accept punishment”.

Again however, the differences between the US and Chinese systems might make it difficult for this transplant to take root. As mentioned above, what little leverage US defendants have to ‘bargain’ with the prosecution comes from their right to demand a full trial and the uncertainty of the outcome of that trial. In China, by contrast, the prosecution is almost guaranteed to prevail at court, as there is no jury and the facts of the case are largely established during the police investigation and pretrial prosecutorial review. The prosecution seemingly has little reason to negotiate with the defendants, and defendants have little reason to reject any offer of leniency, as their choice is really only one of accepting punishment now or at trial.

The situation however, may not be as dire as it seems. The main complaint regarding the US system is that it shifts the center of criminal procedure from the courts to the prosecution. In China the prosecution has always been the center of criminal procedure (notwithstanding the ongoing efforts aiming to make the process trial-centered) so the impact of the plea leniency system should probably be evaluated in terms of pre-trial practice rather than trial. Consider that while the exoneration rate at trial is well less than 1%, the prosecution affirmatively decides not to prosecute some 5% of cases, and upwards of 20% of cases may be dropped without prosecution being approved. [21]

Once indicted, the verdict is a forgone conclusion, but during the investigation and prosecutor’s review for indictment, a confession is still something of a bargaining chip. Whether a defendant is able to use it as such, however, very much depends on their understanding their rights. The law is clear that police, prosecutors, and judges are all to inform suspects and defendants of their rights and of the consequences of a plea, but for their rights to be meaningfully exercised, they will need a lawyer to assist them. To address this need for counsel, China looked to yet another legal transplant, the U.K.’s duty solicitor system, which has again been radically transformed as it developed in Chinese practice.

Duty Lawyer System: A Lawyer walked through it

The new ‘duty lawyer system’ is the most ambitious of the reforms related to plea leniency. Chinese duty lawyers are legal aid lawyers stationed at or quickly available from detention centers, courts, and sometimes prosecutors’ offices and police stations, to provide assistance to all criminal defendants who do not have their own attorneys.[22] Unlike the duty solicitors in the UK, China’s duty lawyers do not provide full defense representation through trial, but are there to provide ‘legal assistance’ including basic legal information, advice on procedural options like plea leniency, and help in drafting applications such as for pretrial release on guarantee or for a legal aid defense attorney. In plea leniency cases, duty lawyers are to further comment on the prosecution’s sentencing recommendation and choice of abridged procedures, and be present when the accused signs a plea affidavit.

The underlying concern is that the duty lawyers are being used only as window dressing rather than as a meaningful procedural safeguard. The ultimate goal is to have defense attorneys participate in every criminal cases, but in plea leniency cases using abridged procedures, this will be limited to the duty lawyer’s involvement.[23] Under existing law, all suspects have the right to retain counsel, but the government is only required to provide a free criminal defense to vulnerable groups such as minors or persons with certain serious disabilities, and those facing life imprisonment or the death penalty. A draft of the forthcoming Legal Aid Law would expand this to include anyone tried under the full trial procedures, but still only provides access to a duty lawyer where abridged procedures are used, which is already the majority of criminal cases. Even this goal will be difficult to achieve given the shortage of trained lawyers in many areas of China.

Given that estimates put current representation rates for all criminal cases in China at between 14-30% nationally[24], even contact with a lawyer for something short of full representation is a welcome reform. It is likely to help defendants better understand basic information on their situation, such as how long they can be detained or the next steps in their case, and may help reduce abuse in detention just by virtue of having an outside pair of eyes on the detainee.

Unfortunately, the duty lawyer system was introduced piecemeal through the expedited procedure and plea leniency pilot measures as well as a series of official Opinions.[25] The initial result was considerable confusion among legal professionals as to what their role should entail. At one training for legal aid lawyers on the new system, participants were unable to even reach a consensus over whether the suspects they assisted as duty lawyers should be considered their clients, and thus what duties were owed them. In one instance a court even openly praised duty lawyers for their role in quickly persuading suspects to admit guilt, as if they were part of the law enforcement apparatus.

Informed by practice in the pilots under the evolving legal authority, some clarity has now been brought to the role of duty lawyers. As codified in the Criminal Procedure law, duty lawyers’ powers have been made essentially equal to those of retained counsel or public defenders pretrial, although they are also subject to the same limitations. Duty lawyers may not be present during interrogations, and when the case involves issues of national security or terrorism, they may be excluded from even meeting with clients. They are able to access the case file materials, but only after the police have completed their investigation and sent the file to the prosecution. They are not the suspects’ “defenders” and will not represent them at court.

Duty lawyers do have the right to meet with the authorities. The opportunity to be heard by investigators and prosecutors is important not only because it demonstrates that duty lawyers are more than a legal reference desk for the accused, but also because such an opportunity is where any level of ‘bargaining’ will happen in the plea leniency system. During the plea leniency pilot project, some local implementation rules had gone so far as to say that duty lawyers could negotiate (协商)[26] with the prosecution over sentencing recommendations, but the currently implemented rules only allow that prosecutors must ‘hear their opinions’ and include any written materials submitted in the case file.

One issue that has been less satisfactorily resolved involves the role of duty lawyers in the signing of plea agreements. When a suspect or defendant who has not retained their own defender signs an affidavit commemorating their admission of guilt and agreement to the sentencing recommendation, the duty lawyer is required to be present. While this measure seems intended to legitimize the agreement by protecting against coercion, lawyers have expressed discomfort with being drafted into the process, and the pilot project sites had varied greatly in how they addressed this requirement.

Some pilot project sites had required that duty lawyers not only be present, but should sign the affidavit as well, a requirement now included in the national laws. Lawyers were unclear whether their signature indicated endorsement. They argued that if they haven’t fully represented and counseled the accused, they can’t speak to the wisdom or voluntariness of the agreement and shouldn’t sign it. In addition to considering their professional obligations, many fear practical consequences if the accused ultimately proves factually innocent- such as being sued by the suspect or even criminally charged for encouraging false testimony.

If their role at the signing is solely to be an ‘authenticating witness’, as some of the pilot sites had expressly stated[27], and they bear no responsibility for the affidavit’s content, the lawyers’ questioned why this function needs to be performed by a lawyer at all. Yet another pilot site thought that the presence of a licensed attorney at the signing was so critical that they required duty lawyers’ to appear even when suspects was already represented by a defender who was not a lawyer. [28]

The most recent rules attempt to address lawyers’ concerns in different situations.[29] Where the duty lawyer has no concerns regarding either the voluntariness of the plea agreement or its content about the sentencing recommendation and use of abridged procedures, they must sign it. Where they do object to the content, they shall first confirm that the accused has voluntarily admitted guilt and accepted punishment, and only then sign, with the option of separately submitting a separate document noting their objections. Where suspects reject the duty lawyers’ assistance entirely and sign a statement to that effect, the duty lawyer is not required to sign the plea affidavit, but must still be present when the accused signs it.

While it is encouraging that the lawyers’ concerns have been addressed at all, this still leaves them in a hard place. The rules provide no clear process for duty lawyers who find that the admissions were not made voluntarily. It is asking a lot to have duty lawyers refuse to sign, effectively accusing the authorities of coercion. An even more likely scenario, however, is that duty lawyers would simply feel unable to determine whether a confession was knowing and voluntary. This, after all, is the intended role of the judge at court, and the duty lawyer lacks the judges’ stature and authority to reject the agreement and insist on full trial procedures to investigate more fully.

I once heard weak chicken broth criticized by saying that at best ‘a chicken had walked through it.’ Given the limitations on the duty lawyers, the worry is that far from achieving the promised universal access to defense counsel, the best we will be to say about most cases is that ‘a lawyer walked through it. To avoid such a situation it is essential to resolve these issues regarding the duty lawyers’ role. It is also critical to ensure that those working as duty lawyers are adequately selected, trained, and funded through means that guarantee their independence from the justice system. While the limited role of the duty lawyers might be understood as a temporary measure until a more complete defense can be universally provided, the fear is that this stopgap tactic will become an enduring norm. Given that abridged procedures have already taken firm root, before the expanded ‘trial-centered’ procedures have been developed, it seems all too likely that the duty lawyer system would become similarly well established without much movement towards enriching the powers of a full legal defense.

Is everybody happy?

The plea leniency system is part of an enormous reform effort, and any major changes will always breed a certain amount of discontent. Some of the concerns of duty lawyers in undertaking their new role have been discussed above. The attention to making the system palatable to victims and the broader public has also been mentioned. What though, of the judges and prosecutors who should most benefit from the reforms?

Some prosecutors have said that the system has actually increased their workload, rather than decrease it. Following the model of US plea bargaining, the plea leniency system greatly reduces trial procedures, but in China the court procedures have never been the greatest burden as the bulk of the work occurs during the investigation and the prosecution’s review of cases before trial. Under ordinary procedures, prosecutors have a full month to review cases transferred by the police for prosecution and can extend this by requesting further investigation, but where the expedited procedures are applied this time is reduced to 10 days (15 if the sentence might be > 1 year imprisonment). This might seem reasonable as the suspect has already confessed and is cooperating with the case, but prosecutors find that this does not reduce the substance of their work.

A guilty plea in the US waives the defendants’ right to have prosecutors prove their case beyond a reasonable doubt. Under China’s plea leniency system, the prosecutor must still confirm that the facts of the case meet the standard of proof for conviction: that the ‘facts are clear, and the evidence is credible and sufficient.’ Prosecutors take this obligation seriously, as they should, in part because they bear ‘lifetime responsibility for any wrongful convictions,[30] but they must now work much faster. Moreover, in addition to completing their original tasks of case review, they are now required to create a sentencing recommendation- potentially requiring back and forth with the duty lawyers and crime victims to confirm their acceptance.

Judges, for their part, are also concerned that they will bear the responsibility for wrongfully decided cases, as they will not have an opportunity to explore the evidence at trial in confirming the facts of the case. They also bear ‘lifetime responsibility’ and must confirm that the suspect has voluntarily, knowingly, and truthfully admitted guilt. The more frequent complaint from judges, however, is that they are improperly losing their sentencing authority to the prosecution. The Criminal Procedure Law states that the courts will “normally adopt the prosecution’s sentencing recommendation”, unless they find the defendant’s admission involuntary or otherwise improper. [31]

A step forward or a step back? Suggestions for ensuring future progress.

In addition to considering whether a legal transplant like the plea leniency system is compatible with China’s existing laws, there are also questions about how it relates to other ongoing reform efforts. The general trend in criminal justice reforms has been to reduce reliance on confessions, as coerced confessions are seen as a major cause of wrongful convictions. The plea leniency system, however, is aimed almost entirely at encouraging confessions, albeit through enticements rather than intimidation. This creates a real risk that the plea leniency system will undermine years of reform by creating a new confession-based system that avoids trial-based protections, just as its use with abridged procedures is already eclipsing the normal criminal procedures.

Whether this can be averted will depend on the efforts of all the actors in the criminal justice system to rigorously verify that defendants’ confessions are truly voluntary, and not merely accepted at face value. A plea is only truly voluntary when it is the product of an informed and knowing choice, meaning it is made by someone who fully understands the consequences of confessing, including their alternative options. The first requirement for ensuring that all confessions are informed confessions is to ensure that the duty lawyer system is truly able to provide all suspects and defendants with the necessary information to make their decision. Police, prosecutors, and judges should also work to inform the accused of their rights, but it must be unequivocal that the duty lawyers’ role is independent, and that they stand on the side of the suspect or defendant. Even if they are limited to providing assistance and will be unable to appear in court, it must be clear to all that their function is to work for the accused’s defense pretrial.

Further, in order to provide meaningful assistance and ensure that a confession is given knowingly, the lawyers themselves must be well informed. This requires adequate access to the case file. By law, duty lawyers and defense lawyers have access to the case materials beginning only when the case is transferred to the prosecution, and this right must be faithfully implemented. The plea leniency system, however, may be initiated as early as during the police investigation, even before this access begins. Earlier access to at least a subset of the evidence should be granted before a plea affidavit is signed, and if it is not, the judge should consider this in evaluating whether a confession was voluntary and informed,.

Judges should also consider pretrial detention in determining whether a confession was voluntary. A recent work report from the Supreme People’s Procuratorate shows that pretrial detention in now down to 53% from 96.8% just 20 years early, but it is still the norm.[32] Because release measures may be granted/imposed at any time throughout the lengthy pretrial criminal process, it’s also unclear long a period of detention preceded the release. Chinese law requires that suspects be held in custody only when ‘necessary’ to prevent danger to the public or the manipulation of evidence, but suspects are often held by police for the maximum 37 days before the prosecution even becomes involved, and longer still before a judge sees the case.

The recent increase in pretrial release may actually be a result of the plea leniency system, which allows that prosecutors should consider admissions of guilt and acceptance of punishment as a sign that the suspect is not dangerous and is suitable for release. Unfortunately, this requires that the suspect have already confessed, and the prospect of imminent release might be so powerful an incentive that even the innocent would confess, especially to minor offenses.

Detention in China often includes repeated interrogations without counsel present, as police not only seek a confession, but try to establish the consistency of suspects’ responses over time. Pre-trial release not only removes the suspect from this coercive environment, but also allows them to more easily work with an attorney to consider a defense. The US Supreme Court has acknowledged that all custodial interrogations are inherently coercive[33], and Chinese judges might take a similar position, creating a rebuttable presumption that confessions made while detained are involuntary to require more stringent proofs of voluntariness.

The courts must further ensure that defendants are not penalized for involuntary and coerced confessions. Where a defendant pleads guilty without having had the opportunity to meet with a lawyer, or where their duty lawyer or defense lawyer was unable to effectively inform and assist them, the plea should be viewed as involuntary, and the defendant must be allowed to recant without penalty. In a subsequent trial applying the full procedures, judges might still allow the recanted confession as a piece of evidence, but it should be understood that it may be the result of coercion from enticement, and has little probative value.

Finally, successful implementation of the complimentary reforms of enhancing trial procedures will likely be the most critical factor to whether the plea leniency system is fairly implemented. Defendants must have the option of pursuing a trial at which the prosecutions’ case is vigorously examined for both procedural and factual defects, if their election to confess is to be meaningful. Witnesses, including the investigating police officers, must be available for cross-examination, and courts must be willing and able to give not guilty verdicts, not only where the suspect is proven innocent, but where the prosecutor has failed to establish their guilt. Otherwise, it is the system itself that should be seen as coercive, and the defendants’ plea should be viewed as involuntary.

Conclusion- a plea for engagement

There is little question that China’s reform efforts are ambitious and earnest. Reforms like the plea leniency system impact the fundamental rights of China’s 1.3 billion citizens, and for this reason alone are worth understanding and engaging. As China becomes a global power, the number of people impacted by Chinese law will continue to grow. Not only will foreigners entering Chinese jurisdiction for business or education be directly impacted, but Chinese law may become a model for other nations, indirectly affecting many more.

The establishment of legal standards for the protection of basic rights has always been an international effort, and requires international consensus, commitment, and cooperation to succeed. It should be admired that even as China has closed some doors to international exchanges, the country’s legal professionals continue to draw on foreign experience and expertise. Foreign legal experts and diplomats should accept the importance of this opportunity to engage on legal issues, and work together with their Chinese colleagues to help these reforms succeed.

With regards to some of the challenges in implementing reforms ahead, experience from the US and other jurisdictions can be a guide, but many of the problems remain challenges abroad as well. No criminal justice system is perfect, and, as in any legal system, nobody is more aware of the shortcomings of Chinese law than the Chinese lawyers, prosecutors, and judges who work in it and are dedicated to improving it. But a legal system does not have to be perfect to be a useful learning tool for others. There is much to be learned in looking at even ‘negative examples’ from abroad and trying to understand what makes them undesirable, and how they can be improved. Certainly we learn from our own mistakes, and we should be ready to share them candidly with others, and open to learning from theirs.

Regardless of how actively we pursue opportunities to engage with China on legal reform, China will continue to learn from the US. Active collaboration and exchanges merely gives us an opportunity to better ensure that our own system is correctly understood, and an opportunity to learn from what is happening in China. As mentioned above, it also helps us better understand China itself, both the problems it is addressing and the goals it is working towards.

Legal exchanges of course also inform China and help them understand us. Mutual understanding is a valuable goal in its own right, but we further learn about ourselves (and about others) from hearing their perceptions of our own legal system fed back to us. At one discussion of the plea bargaining and plea leniency systems, for example, a senior prosecutor remarked “for years we’ve heard about the US trial system and the many rights of the accused, but now we understand, they are just like us, and most cases don’t involve that kind of trial at all.” This is a painful reminder of our system’s problems and the need to always present them alongside its successes, but also a prompt for considering what procedural safeguards we have to ensure that our system is in fact just.

In a very real sense, it might be that the greatest impact one can have is through ensuring that our own justice system is one we can be proud of and that provides a viable model for others. Through deliberate legal exchanges, however, we also reinforce the understanding that the world’s legal professionals share a common goal of building just systems that protect the public and the rights of those accused of crimes. It’s easy to criticize or take cold comfort in a justice system that is at least ‘no worse than the others out there’, but by actively sharing and participating in one another’s criminal just reform journeys, we stand a better chance of achieving a just system for everyone.

[1] Work Report of the Supreme People’s Procuratorate,March 15, 2021最高人民检察院年度工作报告 available at http://www.gov.cn/xinwen/2021-03/15/content_5593016.htm

[2] Recent reforms on ‘judicial personnel quotas’ now require trial judges to be selected from among qualified judges through a process of testing and interviews. Further, judges are now normally begin their service at lower level courts and are promoted upwards to the intermediate and higher level courts.

[3] SPP work report, see note 1

[4] See Eg. Remarks of Xi Jinping at the 2nd Meeting of the Fourth Plenary Session of the 18th Party Congress:
[W]e should learn from the outstanding achievements of the rule of law civilization in the world. However, learning from others is not the same as simply taking from others. We must insist on doing things our own way for our own uses, carefully identifying successes and rationally adopting them, but cannot “fully westernize”, cannot carry out “full transplantation”, or copy others.”

[5] Criminal Procedure Law of China, Part 5,Chapter 1: Procedures for Juvenile Criminal Cases.

[6] SPP work report

[7] The age of criminal responsibility was lowered further by Amendment 11 to the Criminal Law, effective March 1, 2021, to include juvenile offenders as young as 12 years old whose actions result in death or who cause serious injury through exceptionally cruel means. See Criminal Law Article 11.

[8] Cecco, Leyland and Hale, Erin; Kovrig and Spavor: China set to begin trial of two Canadians, The Diplomat; March 18, 2021.

[9] Chen, Pinjie; Chinese Police Have Filmed Dozens of Forced Confessions, Often After Torture: Report; Radio Free Asia; August 12, 2020.

[10] A pair of documents referred to as the ‘Two Provisions’ respectively address case interference coming from superior officers in the justice system and from Party officials. Judges and others are required to report undue interference to even higher authorities. The SPC and SPP each have each issued their own implementation rules as well. See e.g. 中央政法委印发《司法机关内部人员过问案件的记录和责任追究规定》

[11] SPP Work Report 2021. See note 1.

[12] Translated by State Media as “Let the people see that justice is served in every case.”; See e.g.: “”Xi Jinping stresses police competence, loyalty, justice, discipline“CGTN, August 27, 2020.

[13] LAFLER v. COOPER, 566 U.S. 156 (2012).

[14] The phrase ‘plea leniency’ is not a direct translation, but is used as a less-awkward shorthand for the full phrase ‘system of leniency for those who admit guilt and accept punishment’. China’s justice system ’ does not include they entry a formal ‘Plea as in the US system, but so long as it is understood that ‘plea’ here refers to the ‘admission of guilt and acceptance of punishment’ in the system’s full name, and not to a specific waiver of trial rights, this translation is adequate.

[15] SPC, SPP, Ministry of Public Security, et al. 关于推进以审判为中心的刑事诉讼制度改革的意见; October 11, 2016; available at https://www.spp.gov.cn/zdgz/201610/t20161011_169052.shtml English Translation “Opinions on Advancing the Reform of Making Criminal Procedure System Trial-Centered “ available at https://www.chinalawtranslate.com/en/trial-centered-criminal-procedure-system/

[16] “全国人大常委会关于授权最高人民法院、最高人民检察院在部分地区开展刑事案件速裁程序试点工作的决定”, June 27, 2014, ; translation ”Decision of the Standing Committee of the National People’s Congress authorizing the Supreme People’s Court and Supreme People’s Procuratorate to carry out pilot projects on expedited procedures in criminal cases in some Cities” available at https://www.chinalawtranslate.com/en/npcscepauthorization/

[17] 全国人民代表大会常务委员会关于授权最高人民法院、最高人民检察院在部分地区开展刑事案件认罪认罚从宽制度试点工作的决定, September 9, 2016; translation “NPCSC Decision Authorizing the SPC and SPP to Carry Out Pilot Projects on the System of Leniency for Those who Admit Guilt and Accept Punishment” at https://www.chinalawtranslate.com/en/renzuirenfaauthorization/

[18] 认罪认罚从宽制度试点工作作报告, December 23, 2017;

[19] Liebman, Benjamin; “Leniency in Chinese Criminal Law? : Everyday Justice in Henan”; Berkeley J. of Int’l Law, Vol 33.1 p153 (2015)

[20] “关于适用普通程序审理“被告人认罪案件”的若干意见(试行)》和《关于适用简易程序审理公诉案件的若干意见” ; March 14, 2003.

[21] Daum, Jeremy; “Conviction Rates?”, at China Law Translate (blog) available at https://www.chinalawtranslate.com/conviction-rates/

[22]最高人民法院、最高人民检察院、公安部、国家安全部、司法部联合印发《法律援助值班律师工作办法, September 4, 2020; translation “Legal Aid Duty Lawyer Work Measures, available at https://www.chinalawtranslate.com/en/Legal-Aid-Duty-Lawyer-Work-Measures/

[23] 最高人民法院、司法部关于扩大刑事案件律师辩护全覆盖试点范围的通知, December 27, 2019; translation “Supreme People’s Court and Ministry of Justice Notice on Expanding the Scope of Pilot Projects on Having Defense Counsel in All Criminal Cases“ available at https://www.chinalawtranslate.com/en/notice-on-expanding-the-scope-of-pilot-projects-on-having-defense-counsel-in-all-criminal-cases/

[24] See Liu, Ziyang; 中国刑事案件辩护率在30%上下 实现质变尚需克难; Legal Daily, January 28, 2019;

[25] In just over 3 years, 5 separate sources of national-level binding or persuasive legal authority were released impacting the emerging duty lawyer system, including the Expedited Procedures Pilot Measures (关于在部分地区开展刑事案件速裁程序试点工作的办法 August 22, 2014), The Opinions on Improving the Legal Aid System (关于完善法律援助制度的意见June 29,2015 ); The Plea Leniency Pilot Measures (关于在部分地区开展刑事案件认罪认罚从宽制度试点工作的办法, November 11, 2016); The Opinions on Carrying Out Legal Aid Duty Lawyer Efforts (关于在部分地区开展刑事案件认罪认罚从宽制度试点工作的办法, August 28, 2017), and the Measures for Implementing the Pilot Projects on Having Defense Counsel in All Criminal Cases (关于开展刑事案件律师辩护全覆盖试点工作的办法, October 11, 2017).

[26] Local pilot rules for Chongqing, Fuzhou, Guangzhou, and Shenzhen used the phrase ‘negotiations. Shenzhen’s use of ‘negotiation’ was particularly noteworthy, because it expressly related to situations where there is solid evidence and the accused has not yet admitted guilt, but might be convinced it is in their interest to do so, suggesting a give and take. Chongqing reserved the term ‘negotiations’ for discussion of procedure selection, but for other subjects goes so far as to say that duty lawyers recommendations to police, prosecutors, and courts are to be adopted when ‘reasonable’, and that the Procuratorate may adjust its sentencing recommendations in response to pretrial defense objections. Guangzhou allowed for ‘negotiation’ specifically on the sentencing recommendation. The rules were shared with the author but not released publicly but can be shared upon request to the author; the details of various local pilot are summarized in: Daum, Jeremy; “Plea Leniency Pilot Overview”, available at https://www.chinalawtranslate.com/en/plea-leniency-pilot-overview/ (April 25, 2018)

[27] Guangzhou and Shenzhen Pilot Rules, available upon request.

[28] Fuzhou Pilot Rules, available upon request.

[29] “法律援助值班律师工作办法”;September 4, 2020; translation “Legal Aid Duty Lawyer Work Measures”, available at https://www.chinalawtranslate.com/en/Legal-Aid-Duty-Lawyer-Work-Measures/

[30] 关于完善人民检察院司法责任制的若干意见, “Opinions on Improving Systems of Judicial Responsiblity for Procurators” September 04, 2020.

[31] CPL article 201.

[32] SPP work report see note 1.

[33] Miranda v. Arizona, 384 U.S. 436, 467 (1966)

About Jeremy Daum 111 Articles
Jeremy Daum is a Senior Fellow of the Yale Law School Paul Tsai China Center, based in Beijing, with over a decade of experience working in China on collaborative legal reform projects. His principal research focus is criminal procedure law, with a particular emphasis on protections of vulnerable populations such as juveniles and the mentally ill in the criminal justice system, and is also an authority on China’s ‘Social Credit System’. Jeremy has spoken about these issues at universities throughout China and in the U.S.; and has co-authored a book on U.S. Capital Punishment Jurisprudence for Chinese readers. He is also the founder and contributing editor of the collaborative translation and commentary site Chinalawtranslate.com, dedicated to improving mutual understanding between legal professionals in China and abroad. He translates, writes, edits, does web-design, graphic design, billing, tech support, and social media outreach for China Law Translate.

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