Open to negotiation? A review of China’s Abridged Criminal Procedures

Introduction

Current Law

The Current Pilots

Plea Leniency System Pilots

What is a plea?

Effective Legal Assistance

Pre-Trial Detention (Article 6)

Victims’ Rights (Article 7)

Informants (Articles 9, 13)

Sentencing Recommendations

Scope of Leniency

General Procedures

Investigation Phase:

Review for Prosecution Phase

Trial Phase:

Appeals:

Chart: Evolution of Abbreviated Criminal Procedures:

Introduction

As China’s criminal procedures become increasingly complex, and criminal case loads continue to increase, there has been growing interest in measures to conserve judicial resources. In the past, Chinese criminal trials have often been little more than a forum for announcing the results of an investigation process that was largely resolved before trial, and given the current staggeringly high conviction rates, some might say they still are. If the focus is to truly shift towards making decisions at court, however, more time will need to be spent hearing each case. In recent years, China has drawn heavily on the U.S. experience in creating new plea bargaining-like pilot projects aimed at diverting simpler cases out of the full procedures for more efficient handling, but these pilots also bring familiar risks of false confessions or involuntary pleas.

The recent pilots are ground-breaking for their explicit encouragement of prosecutors and defendants reaching a pretrial consensus, but they are not the first moves China has made towards offering a fast-track procedure in less-contentious criminal cases. As early as 1996, revisions to China’s Criminal Procedure Law (CPL) allowed for “Summary Procedures” in certain cases, and while those rules were not overly concerned with defendants’ admissions of guilt, the origins of the current pilots can be traced directly back to them. The chart at the end of this article illustrates major developments in the evolution of the system from 1996 to today.

In 1996, the new CPL’s Summary Procedures were a strictly administrative measure, expanding on the previous (1979) version of the law’s one-line mention that some simple criminal cases could be heard by a single judge. The 1996 procedures were meant to move simple cases forward quickly, and with minimal drain on courts and prosecutors, by eliminating much of the questioning and debate at trial. Their use was limited to cases where punishment was up to three years imprisonment, and they allowed that a single judge could hear the case, that prosecutors needn’t even show up, and that trial of these cases was expected to be concluded with 20 days.

While the 1996 CPL required that the court and Procuratorate both agree to application of  the summary procedures, the law was silent on the defendants’ posture or consent. The text of the Law itself even allowed that the defendant was still welcome to make statements to the court and debate the prosecutor (if present), suggesting that defendant’s conceding the case was not a prerequisite. Only in the Supreme People’s Court’s judicial interpretation of the law was it added that summary procedures were inappropriate for cases where the defendant pleaded not guilty.  The SPC may have reasonably concluded that the facts could not be considered clear, as required for use of the procedures, where the defendant admitted guilt, but still maintained his innocence.

Shortly after the 1996 CPL took effect, several courts began experimenting with expanding the utility of ‘Simplified Procedures’, and these experiments were ultimately validated in a legally binding Opinion issued jointly by the SPC, SPP and Ministry of Justice in 2003. The Opinions offered simplified procedures for use in all criminal trials where the defendant admitted guilt and had no objection to the basic facts. The procedures allowed that the questioning of the defendant and witnesses, and presentation of evidence, could be limited regarding any issues not in contention; although a full 3 judge panel was still required, and in-court debate was still allowed, particularly with regards to the charge and sentencing.

Showing concern that simplified procedures might also be used to abridge defendants’ rights and undermine courts’ authority; the Opinion also required the defense to consent to the reduced procedures. Further, judges were required to inform the defendants of their rights to trial and confirm that they understood the consequences of using the Simplified Procedures. Finally, perhaps to avoid the appearance of impropriety and preserve the state’s interest in important trials, certain major or sensitive cases, were ineligible and required full procedures, such as those potentially involving the death penalty, those involving foreign defendants, and those with major social impact.

The courts invoked China’s long standing policy of ‘Leniency to those who confess, and severity for those who resist” “坦白从宽、抗拒从严” to suggest that lighter sentences might be given when the Opinion procedures were used, but there was no guarantee of what form this would take, or whether prosecutors could make any assurances of a lighter verdict. This was in part due to two major issues that continue to plague plea negotiation systems today:

The first is the fear that it might appear justice is being circumvented. As criminal punishment is meant to reflect societal condemnation of the criminal activity and be aimed at reformation, there is concern that prosecutors and courts would be viewed as “making a deal with the devil”, waiving punishment just to save time and avoid work. Crime victims in China are actually considered a party to the criminal case, although they usually have no direct representation,  and judges seek to give them resolution through the trial or through victim-offender mediation.  A victim who feels that justice was not served in their case, might refuse to let the judgment lie, creating more work for the judicial organs, and thus defeating the main objective of simplified procedures.

At the same time, the broader public may be dissatisfied even where victims are mollified. Obtaining the victims’ forgiveness through apologies, compensation, restitution or other means, is often the key to gaining a reduced sentence and this leads some to fear that ‘plea bargaining’ might be distorted to little more than new leverage for prosecutors to coerce defendants into paying off victims and ending the case. Such payments are often justified, of course, as both a reduction of the crimes’ principle harm and the defendants’ demonstrations of remorse reduced culpability.

The second concern is about prosecutorial encroachment on judicial power. Sentencing is without question within the adjudication power of judges. When prosecutors begin to discuss charges and sentencing recommendations with defendants, there is real concern that judges are losing control of this power. As most incarnations of reduced procedures require that the charged offense be punishable with a certain sentencing range, the prosecution might have to make an initial determination of likely sentence even before the selection of procedures.

Current Law

The 2012 amendment of the Criminal Procedure Law largely codified the experience under the Opinions’ simplified procedures, integrating them with the previous version of the law’s summary procedures. The CPL section on Summary Procedures was re-written to require that the defendant admit guilt and consent to the use of reduced procedures. Retaining a portion of the original 1996 rules, the 2012 amendments allowed that a single judge may hear cases where punishment was less than 3 years, but required a full three-judge panel for use of summary procedures in other crimes. The 20 day limit for trials was retained, but could be extended to 45 days where the sentence was likely greater than 3 years.

The Current Pilots

For 2 years, from August 2014-August 2016, 18 pilot jurisdictions were authorized by the National Legislature to begin implementing a form of ‘Expedited Procedure’ (EP) [速裁程序], where the defendant essentially waives all rights to a trial, although he will still appear in court to have a judge evaluate the voluntariness of the plea. The initial pilot concerned only a limited set of offenses, and required that punishment was likely to be less than one year imprisonment [now up to three years imprisonment in an extended version of the pilot].  In addition to largely incorporating the requirements of the CPL’s Summary Procedures, the EP pilots added several innovations:

• The defendant must agree to accept the Prosecution’s sentencing recommendation– there is no guarantee that a judge will accept the recommendation, but this requirement could allow for sentence bargaining for the first time.

• The defendant must reach a settlement agreement with the victims, or otherwise obtain their forgiveness. This requirement probably greatly limited the cases in which EP was applied, but clearly seeks to avoid victim dissatisfaction, or the impression that criminals are slipping through the cracks. A large number of cases heard in the EP pilots were for drunk driving and drug offenses, perhaps because there was no specific victim.

• Providing Legal Assistance. While their exact role is unclear, the pilot sites were tasked with creating ‘duty counsel’, regularly present in jail houses and courts, to advise suspects and defendants. It does not seem that they are intended to take on the full case defense, but are available as a resource to discuss the EP system, and whether a plea is appropriate. The accused may still retain counsel.

• More Specific Sentence Reductions- While each pilot site varied in its specific implementation measures, as much as a 30% reduction in the base sentence for an offense was authorized where the procedures were used and complied with. The legal basis for this reduction is unclear, but has roots in the Criminal policies of leniency for those who confess, and of blending leniency with severity.

Plea Leniency System Pilots

Following the completion of the Expedited Procedure pilots, the national legislature authorized their continuation, and expansion to include crimes whose punishment might be as high as three years. Moreover, a new 2 year pilot was authorized offering similar procedures, but applicable in all criminal cases. The basic rules for the new pilots, known as the “System of Leniency for Those Who Admit Guilt and Accept Punishment” [Hereinafter “Plea Leniency System”] have only just become available, and local rules being formulated now will eventually add even more detail.

Below is a brief discussion of some of the more notable new features:

What is a plea?

Under these procedures, what we are hesitantly calling a “plea”, is actually an ‘admission of guilt and acceptance of punishment’, rather than the entering of a formal legal posture at court. While it will usually be verified at court, the admissions can occur even before indictment and can have consequences early in the criminal process. While use of abbreviated trial procedures is almost certain to occur where a defendant admits guilt, the focus of the new system is that a plea entitles a suspect or defendant to leniency, not on the creation of new procedures.

Because ‘admitting guilt and accepting punishment’ is not really a plea in the traditional sense, there has already been some confusion as to whether it means only a confession is equal to admission of guilt. In the U.S. system, a confession would be one piece of evidence against the defendant which could be challenged, while a guilty plea- once accepted, would essentially mean conviction. The Chinese procedures and terminology has caused some confusion about when leniency is appropriate, but if the elements put forward in this pilot are all strictly required, ‘admitting guilt and accepting punishment’ should be considered a ‘plea’ for all practical purposes.

Specifically, a plea [admission of guilt and acceptance of punishment] requires that the accused:

• Voluntarily and truthfully confess their criminal acts;
• Do not object to the facts as charged;
• Agree to prosecutors’ sentencing recommendation;
• Sign a written document to this effect. (Article 1)

Voluntariness, to be confirmed by the courts, includes that the suspect or defendant was aware of the consequences of his admissions, as all criminal justice system actors from police to judges are instructed to provide this information to the accused. Also, those with reduced capacity to enter agreements are restricted from the Plea Leniency System, including:

1. Mentally ill persons who still have some criminal liability and
2. Juveniles, where guardians or defenders object (previous pilots have barred juvenile offenders entirely. (Article 2)

Truthfulness requires that the accused admit both the charge, and the alleged facts that create a factual basis for the charge. The defendant cannot admit guilt and accept conviction while maintaining his factual innocence if he wants to receive lenient treatment, and a prosecutor cannot agree to indict a charge that is not factually supported in order to reach a desired sentence outcome. (article 20)

Effective Legal Assistance (Article 5):

The new Measures build on the Expedited Procedure (EP) pilots’ introduction of a duty lawyer system to ensure that counsel is available to defendants.  Given that estimates about current representation rates for all criminal cases can be as low as 14% nationally, any contact with a lawyer is welcome, even if short of full representation. The goal of this counsel is expressly to help ensure that admissions of guilt are voluntary and made with knowledge of the consequences.

Specifics on the logistics of providing duty counsel are vaguer than for some past pilot sites, and requires only that their presence in courts and detention center be in accordance with the needs of those facilities. It is also mentioned that duty lawyers might be on-call, but not physically present at all, so long as access is easy.

The work of attorneys at this stage is defined more clearly than in in previous pilots as the:

1. provision of legal information/consultation,
2. help in procedure selection,
3. handling of applications to modify compulsory measures.

On its face this seems to fall short of vigorously representing clients in plea negotiations, but the choice of procedures essentially means the decision to consent to a plea, and applying for changes in compulsory measures can be understood as seeking pretrial release, so the role is still somewhat substantial.

The real question, however, is what a lawyer can really do in this system. In the U.S., plea negotiations are often motivated by both parties’ desire to avoid the uncertainty of trial, as well as the work of preparing for court. Counsel might point out flaws in the prosecution’s case, or the strength of defense evidence, to emphasize that the conviction may be lost before a jury or judge. In China’s courts, however, with their stellar conviction rates, there is no uncertainty as to the courts finding, and no leverage with which to argue sentencing.

It is no accident that the phrase ‘effective legal assistance’ resonates with the US concept of ‘effective assistance of counsel’.  Chinese criminal procedure scholars are very familiar with this term of art, which is often the ground for challenging a plea agreement in the US. It will be curious to see if ineffective assistance becomes a ground for challenging a convictions resolved by plea in China, and also whether providing ‘ineffective assistance’ might be one more source of liability for China’s haggard defense bar.

Finally, it is worth noting, that some judges have reported that another recent procedural innovation in China, “the pretrial conference” has become a forum for more substantive party negotiations outside of any new pilot. In these conference meant to identify key areas of dispute for trial, Defense attorneys and prosecutors have been said to engage in a form of negotiation, such as agreeing to drop embarrassing  motions for the exclusion of coerced confessions, in exchange for some charges being dropped, or a lighter sentence recommendation.

Pre-Trial Detention (Article 6)

Police, procurators and judges are all advised to consider a suspect or defendant’s admission of guilt and acceptance of punishment as a major factor in assessing his dangerousness to society, and dangerousness is in turn the basis for whether a defendant is released pre-trial. Pre-trial detention is still the norm in China, and the previous Expedited Procedures pilot emphasized that in suitable cases, release on guarantee or other non-incarceratory measures could be used where the accused admits guilt. At the same time, there is a risk that even an innocent person might confess to a mild crime if they knew they could go home immediately to care for children or keep their job, rather than waiting in jail.

Victims’ Rights (Article 7)

As mentioned above, there is a great deal of concern that victims will be vocally dissatisfied with judgments reached by plea, and earlier EP pilots required that a victim settlement or forgiveness be reached before abbreviated procedures and lenient sentencing were applied.

The new Measures stop short of this, but provide that settlement, compensation, and other means of victims satisfaction will be a major factor in sentencing—affecting the extent of leniency available to those who plea.

Finally, where a prosecution does not move forward, there are new measures meant to ensure that a victim can seek return of property related to the crime that was seized by the State. (article 16)

Informants (Articles 9, 13)

China’s Criminal Law has long allowed that those who make a ‘meritorious contribution’ are entitled to benefits including sentence reductions, parole, and so forth. Such contributions are usually in the form of providing information that helps prevent a crime or catch other criminals.

The new measures make clear that during both the investigation and review for prosecution phases, the prosecution may be dropped where the make a major meritorious contribution (a term of art that usually means they stopped a major or important crime.)

If this happens during the investigation phase, police must report all the way up to the Ministry of Public Security, which will then request approval to drop the case from the Supreme People’s Procuratorate. If it happens once the case is already with the prosecution, only the Supreme People’s Procuratorate’s approval is needed to make a decision to not prosecute. Either way, the need for this high level review means that tight control is being retained on this form of leniency; both to stop its abuse, and out of concern that the public might object to the procuratorate ‘dealing with criminals.’

Sentencing Recommendations

When the Procuratorate files a public prosecution with the courts in a plea case, they are to attach a sentencing recommendation, which can take several forms. The Procuratorate may recommend a range for the court, or a fixed sentence; and where there are financial penalties, will usually state a specific amount.  (article 11)

The court will generally follow the charges and sentence put forward by the Procuratorate unless:

1. No crime constituted;
2. Plea is involuntary;
3. Defendant denies the facts of the crime;
4. A different crime was verified at trial than that in the indictment;
5. Other impact on a fair trial.  (Article 20)

Where the recommendation is clearly improper, or subject to a complaint from the defense, the court may ask the prosecution to adjust it; and if there are still problems, may make its own judgment. (Article 21).

Scope of Leniency

Unless the case is dropped or not prosecuted at all, there are often minimum sentences for crimes in China. Certain statutory factors allow for commutation below the minimum range, and if the crime is especially mild and meritorious contribution is made, punishment may be waived, but prosecutors do not have a free hand in creating sentencing recommendations. Where truly necessary, the Supreme People’s Court may approve a punishment below the statutory minimum.

General Procedures

Investigation Phase:

Investigators:

1. Are to inform suspects of their rights, and consequences of a plea
2. Hear the comments of the suspect or his lawyer (defender, duty lawyers)
3. Attach description of admission of guilt to case file if sending for prosecution.

Where the suspect or defendant suggests they want to admit guilt to any party including the detention center personnel, their lawyers or, duty lawyers, it is to be immediately reported to case handling organs.

As mentioned above, if there is major meritorious contribution and the crime is minor, the case may be dropped.

Review for Prosecution Phase

Prosecutors shall inform the criminal suspect of their rights, and the consequence of their pleas, and seek their opinions on:

(1) The charged crime and the legal provisions applied;

(2) Recommendations for lenient punishment, such as mitigation, commutation, or exemption from punishment;

(3) The procedures applied in review following the admission of guilt and acceptance of punishment;

(4) Other circumstances where opinions need to be heard

If the Suspect agrees to the sentencing recommendation, admits all the facts and charges, this shall be commemorated in writing and signed with the defender or duty lawyer present. This memorial shall be signed in the presence of a defender.

Decision to indict generally made within 10 days, or 15 days if punishment might be beyond 1 year imprisonment.

Trial Phase:

The court is required to inform defendants or their rights and the legal consequences of a plea, and to assess the voluntariness of the procedures.

The court may abridge trial procedures according to either the Expedited Procedure if applicable or the Summary Procedures.

Expedited procedures, using only a single judge and waiving most in-court procedures, require that the case:

1. Be punishable by 3 years imprisonment max
2. Have clear facts, and evidence that is credible and sufficient.
3. No contention over applicable law
4. Defendant admits guilt, accepts punishment, consents to procedures,
5. Defendant and victims have reached a settlement, or other satisfaction and forgiveness,
6. And trial is concluded within 10 days (15 if punishment is >3 years.

And must not

1. Have blind, deaf, or mute defendants
2. Be a difficult or complicated case, or one with major social impact
3. Have any defendants who object to facts, charges, sentencing recommendations.

Appeals:

A paper review of the first-instance case is sufficient where EP were applied. If it looks like a conviction was improper, the case is to be retried using the ordinary unabridged procedures.

Chart: Evolution of Abbreviated Criminal Procedures: