Conviction Rates?

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Each year, China’s provincial-level high courts and Supreme People’s Court release work reports for their respective jurisdictions. While the statistics provided in these reports are limited and are not presented uniformly enough to allow full comparisons across regions, they do offer a welcome glimpse at the functioning of China’s courts and criminal justice system.

Last week, for example, Caixin used some of the data in these reports to publish an article showing the astonishingly low trial acquittal rates of 11 jurisdictions for 2015, all well below 1%. That article rightly generated a lot of interest, but acquittal rates at court (showing the % of not-guilty verdicts) are only a very small piece of understanding the criminal justice environment in China, and much more context is needed to understand what they mean. At the same time, despite their limitations, the reports contain a lot of valuable data, and it is worthwhile to dig a little deeper into the information and see what else might be learned.

In considering the acquittal rates, there are a few additional points to keep in mind:

  1. What ‘crimes’ does the court hear? In China, a line is drawn between unlawful conduct that is considered criminal and that which is considered only a public security violation. The latter can include conduct that is regularly considered a crime in other nations, including drug use and prostitution. Where a violation does not constitute a crime, the police forces are empowered to directly give punishments without going through the courts at all — and while maximum detention is generally under 20 days for most such offenses, a sentence to years of rehabilitation is available for drug offenses and some prostitution-related crimes.

Court acquittal rates will only address criminal activity because violations do not receive a court trial. If the concern over low acquittal rates is about unjust punishment, it is necessary to also consider this potentially larger group. It is also important to remember the distinction between crime and violations when comparing China’s conviction rate to that of foreign jurisdictions that do not draw a similar line as different degrees of offense might have quite different acquittal rates.

  1. Private vs. Public Prosecutions: Chinese Criminal Procedure allows crime victims to directly file and prosecute charges with the courts for certain crimes. One would expect that more private prosecutions would end in acquittals than public prosecutions, because the “private prosecutors” lack the professional expertise of procurators (although they may hire representation), lack the resources and authority to conduct as thorough investigation and review, and might have unreasonable expectations of the court.

The data Caixin pulled from the annual court reports includes both acquittals in criminal prosecutions pursued by the state, and also for these private prosecutions launched by crime victims. A quick look at some of the reports from both the courts and the procuratorates from the cited regions shows that private prosecutions comprise the majority of acquittals. When the State prosecutes a criminal offense, the acquittal rate is even lower than Caixin reported.

位置Total AcquittalsPublicPrivate
Shanghai936
Chongqing21615
Hunan802456

  1. Other dispositions: Cases can be dropped at various phases of the criminal process as well as ending in a guilty or not-guilty verdict. This may be done pretrial, where the police find there is insufficient grounds to send a case on to the prosecution, or where the procuratorate makes a decision to not prosecute. Even for cases that do go to court , some have suggested that judges, who are well aware of the negative impact a not-guilty verdict can have on prosecutors’ performance reviews, sometimes encourage prosecutors to withdraw a case that looks like it is headed for a not-guilty verdict. Such withdrawals wouldn’t show up in a bald count of not-guilty verdicts, and are perhaps also one more reason for the difference in acquittal rates between private and public prosecutions. The number of withdrawals isn’t usually presented, but the high court of Shanghai shows that it permitted prosecutors to withdraw 12 public prosecutions.

Pretrial dispositions are likely more significant, as the prosecution is intended to carefully review cases, request supplementary evidence and only indict the most clear to the court. The court reports offer little insight into pretrial practice before their involvement, but the procruatorates at the same levels also issue reports, giving further insight. Consider for example the rate at which some jurisdictions’ procuratorates issued a decision to not-prosecute:

BeijingShanghaiChongqingQinghaiFujian
Persons Indicted21,87842,34332,453616660809
Persons given

Non-prosecution (NP) decisions

≥1173≥750≥459≥461≥951
NP decisions as % of total5.09%1.74%1.39%6.96%*1.54%

The ‘total’ used for percentages in the chart above is the sum of known individual dispositions, ( the sum of the number of individuals indicted and the number of those known to have received NP decisions). Unfortunately, this doesn’t tell us what percentage of the actual total number of requests for a prosecution from the police were rejected. Moreover, the data on non-prosecutions is presented in such a way that many decisions to not prosecute might not be counted. For example, the 951 non-prosecution decisions in Fujian, only represent cases in which there was a reconciliation settlement between the victim and offender, so does not necessarily include all cases where the prosecution chose not to prosecute because the evidence was insufficient.

Qinghai, like Fujian, only gives data for a subset of non-prosecution decisions – those where the threat to society was minimal and the prosecution found that punishment could be lawfully waived. This may again leave out data on how many were excluded for insufficient evidence. Qinghua’s procuratorate, however, does provide more detailed information on the number of applications for prosecution from the police, showing that the number that did not lead to prosecution is higher.

 

Qinghai
ActionCasesPersons
Application for indictment54048047
Indicted4177 (77.25% of applications)6166 (76.62% of applications)
Indictment DeniedNA461 (5.7% of applications)
Total non-prosecuted1227 (22.7% of applications)1881 (23.4% of applications)

 

From these numbers you can see that in addition to the 5.7% of applications for which we know the prosecution actively issued a non-prosecution decision, there is an additional 23.4% of suspects that were also not prosecuted. Some of these may be cases that are still being reviewed at the close of the year, or for which further investigation has been requested, but it’s likely that the bulk of them are prosecutions that will not move forward either by an active decision to not prosecute or because they were withdrawn by the police.

  1. More to research: None of this is to suggest that the criminal justice system must be working or to explain away the low acquittal rates of cases that go to court. It just to show that more information is needed to understand what is happening, and while most of that information isn’t easily available, more information is becoming available and should be considered. For example, seeing how many arrests result in conviction might lead to a different number than simply counting the number of not-guilty verdicts.

The reports of both the courts and procuratorates are rich with other information relevant to what criminal suspects or defendants can expect from the Chinese criminal justice system. There is data available on the number of cases in which the procuratorate did not approve formal arrest and allowed for less restrictive pretrial treatment (Qinghai rejected 14.5%), and for how many cases the proactively reviewed and rejected pre-trial detention as unnescessary. There is data on the use of the new juvenile diversion procedure called conditional non-prosecution and on how often the procuratorate intervened to in public security case handling, even to insist a case be filed or dismissed.

Ultimately, however, the reports provide a valuable but limited glimpse of the state of the courts and the procuratorates. They are, after all, work reports and not detailed statistical breakdowns. While those with the time and resources to dig through them should, the lack of standardization in the data is frustrating. China’s courts have been putting an increasingly large amount of information online, and one hopes that this trend will continue to allow a more complete and accurate picture.

About Jeremy Daum 95 Articles
Jeremy Daum is Alex Daum's dad, Elizabeth Jenkins' Partner, China Law Translate's contributing founder, and a Senior. Fellow at Yale Law School's Paul Tsai China Center. He translates, writes, edits, does web-design, graphic design, billing, tech support, and social media outreach for China Law Translate.

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