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[CORRECTION: An original version of this article had some of the timing requirements for expedited procedures slightly off, but not so as to impact the overall analysis. The charts and article have been updated. 4/25/2018.
China’s ‘plea leniency’ (认罪人罚从宽制度） pilots are a major criminal procedure reform. They aim to reduce case clearance times by simplifying procedures where there is no disagreement about the facts and the defendant has admitted guilt. This should leave courts with more time to focus on contested cases and to better implement complementary reforms calling for more in-depth evidence review, witness appearances, and vigorous in-court debate. At the same time, the pilots are intended to standardize the longstanding practice of giving more lenient penalties to suspects who confess and cooperate with authorities. Those who admit guilt and accept punishment forgo a full trial and receive a sentence reduction.
The concern is that the system, which is intended to encourage the guilty to confess, will be flipped on its head in practice, and amount instead to heightened penalties for those who insist on having their day in court. Given China’s 99%+ trial conviction rate, many defendants might reasonably believe there is little to gain by going to trial, regardless of their innocence.
In late December, Supreme People’s Court president Zhou Qiang gave a midterm report on the current two year Plea Leniency pilot project. While the report hinted at some of the challenges and concerns being addressed, hard data and analysis were predictably sparse.
Before analyzing the data we do have, it’s worth mentioning the large amount of ‘Party-speak’ – that difficult to translate political rhetoric common in official Chinese speeches. Some amount of Party- speak is unavoidable, but it really stands out in this generally non-political report on criminal procedure. Comparing this report to the similar midterm report from a predecessor pilot on expedited procedures made just a few years ago highlights the issue- in this report, Secretary General Xi Jinping was mentioned by name 6 times, and the Party was invoked 8 times, whereas the previous pilot report didn’t mention Xi at all, and mentioned the Party only once.
Foreign observers will likely view this trend as indicating an increase in Party control following the 19th Party congress, but many in China simply roll their eyes and accept it as filler to stretch out the report.
The report says that there are now 281 courts and 281 procuratorates testing the plea leniency system in the 18 pilot regions. Together they have already handled 91, 121 cases involving 103,496 suspects during the pilot’s first year.
Additionally, 630 legal aid work stations have been established to implement the new ‘duty lawyer’ system, providing legal assistance to criminal suspects and defendants in courts, detention centers, and prosecutors’ offices. The duty lawyers are not usually there to provide a full defense, but can offer legal consultation and familiarize the accused with their options. The large number of legal aid stations is promising news, but tells us little about the role these lawyers are actually playing in cases.
The report indicates that 82% of pilot courts now have legal aid work stations. From this number we can calculate that about 230 courts must have legal aid stations, leaving 51 without them in the pilots. Detention centers have a 97% coverage rate likely accounting for the majority of the remaining 400 legal aid stations.
As discussed above, reducing case-handling times is a key goal of the pilot projects.
While not mandated, the pilot urges the use of various simplified procedures for speeding case handling. Per the report, 68.5% of the cases did in fact use the most abbreviated ‘expedited procedures’ (EP), with 24.9% of cases using the somewhat abbreviated ‘summary procedures’ (SP), and only 6.6% using the full ‘ordinary procedures’ (OP).
Chart 2 shows the average case handling time in the pilot for each phase of the criminal process, as compared to the permissible time allowable under each type of procedure, absent special extensions. Extensions aren’t uncommon in practice, but are left out here because they should be used very rarely in plea leniency cases where the facts are agreed upon and speedy trial is emphasized.
The expedited procedures (in red) require a marked decrease in both the prosecutions’ review of the case and in trial time at court, while the summary procedures (green) are mainly intended to reduce trial time. It makes sense then that the pilot projects which use these two procedures almost exclusively, have made a notable reduction in trial times as compared to cases using the ordinary procedures. The full extent of the reductions is unclear, however, because of the roundabout way the data is presented, all we know is that ‘83.5% of cases were concluded within 15 days’ of indictment.
The numbers for the ‘review for prosecution phase’, during which the prosecutors decide whether to indict, raise more questions. The pilot cases use more than three times as many days as generally allowed under the EP.
Because some pilot cases were tried under different procedures with more generous timing allowances, the following chart adds an ‘Expected’ weighted average to Chart X, showing what pilot case-handling times would look like if the maximum time generally allowed was always used for each case under the relevant procedure. [IE: the percentage of cases tried using SP all used 20 days at trial.]
The actual average time used for the Review for Prosecution in pilot cases is much higher than expected, even when considering the different procedures applied. This means that some cases used even more than the maximum time normally allowed under the relevant procedures. It’s important to note that this doesn’t mean anything improper occurred, as there are lawful extensions, but it does mean that the goal of reducing case handling times wasn’t being realized by a long shot. [This may be true in the trial phase as well, but the top 16%+ longest cases weren’t included in the report data]
The midterm report didn’t provide any data on the length of the investigation period in pilot cases at all. This is an important omission, because pretrial detention with multiple interrogations is the norm during the investigation phase. Two months detention could be life changing, and detention is inherently coercive. The likelihood of a suspect ever sticking to their guns and maintaining their innocence is sure to decrease the longer they are kept locked away from friends and family, especially where quick release might be possible if they confess and are given ‘time served.’
In addition to reducing case clearance times, the pilot project encourages reductions in pretrial detention. This is accomplished through ‘release on guarantee’ or by placing someone in ‘residential surveillance’, two forms of non-custodial measures that can maintain varying levels of restrictions of freedom of movement. The report says that 42.2% of suspects were released pretrial, but these release measures may be granted/imposed at any time in the lengthy pretrial criminal process, so we do not how long they much detention preceded the release, or about the conditions of their release.
57.8% of the suspects were kept in custody before trial. This is a much lower percentage than in normal criminal cases, which is great, but also shows how much room there is for further improvement.
Only .8% of pilot cases ended with a sentence of more than 3 years imprisonment. This reflects the leniency element of the pilots, but also prosecutors’ reluctance to use simplified procedures in serious cases.
Of the remaining 99.2% of cases, 2.7% ended with non-custodial punishments, and .3% had punishment waived entirely. The bulk of cases resulted in sentences of detention for a period of less than three years, but a full third of those (32.2% of the total cases) were suspended sentences, meaning that the convict was released on a form of probation, and if they could complete the probation period without further incident, the prison term would be waived.
The report did also contain a bit of information about the role of procurators sentencing recommendations in determining sentences. We learned that 92.1% of these recommendations were accepted by the courts. We also learned that 70.6% of these recommendations gave judges a suggested range, and only 29.4% gave a specific sentence. There is no break down of the reasons for this difference, or whether courts acceptance rates are different for the two types of recommendation. More importantly, there is no real discussion of how reduced the punishments are compared to non-pilot equivalents.
China’s courts are in the midst of major reorganizations and reforms and nobody expects these changes to be easy. However, in the courts’ reforms, the themes of transparency, public supervision, and use of big data analysis are often invoked, and the midterm report does not reflect those principles. It is almost impossible to draw firm conclusions from the information provided, and this is the report made to the body authorizing the pilots.
Individual case judgments are available online, so that one could do their own more detailed analysis, but the official platform has been intentionally designed to limit large scale collection of specific cases for the purpose of analysis. There is more in the report than is in this brief synopsis, but most of it is anecdotal or piecemeal.
As for what can be learned about the pilots from the report? Well, two of the main goals of the pilots are reducing trial times and protecting suspects and defendants’ rights. The information on timing suggests that case-handling is not often proceeding as quickly as expected. At the same time, the risk of lengthy investigatory detentions and the unclear roles for duty lawyers, makes it difficult to tell if admissions of guilt are truly being giving voluntarily.