*  This article was created with invaluable research assistance from Yiqin Fu. 

Table of Contents

Plea Bargaining with Chinese Characteristics

The Current Reform Era (2014-Present)

Expedited procedures

Plea Leniency Pilots

Conclusion

Appendix A: History of Simplified Criminal Procedures

Plea Bargaining with Chinese Characteristics

As China’s criminal procedures have become increasingly complex and criminal case loads have increased, it has become apparent that something must be done to conserve judicial resources. Historically, criminal trials have been little more than a forum for announcing the results of a criminal investigation process that was largely concluded before trial, but for the focus to shift towards true debate and judgment at court, more time must be devoted to each case. China has drawn heavily on U.S. models in creating new ‘plea bargaining’ type pilot projects to explore quicker resolution of simpler cases, leaving time for more complex ones.

The recent pilots are ground-breaking in that they provide an explicit opportunity for prosecutors and defendants to reach a plea agreement, but they are not the first moves China has made towards offering fast-track procedures in less-contentious criminal cases. As early as 1996, China’s Criminal Procedure Law (CPL) allowed for “Summary Procedures” in certain cases, and while those rules were less concerned with the defendants’ admissions of guilt, the origin of the current pilots can be traced directly back to them. The chart at Appendix A, illustrates major developments in the evolution of the system from 1996 to today.

In 1996, the recently revised CPL’s Summary procedures were a strictly administrative measure, meant to move simple cases forward quickly, with minimal effort by courts and prosecutors. 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 and that prosecutors needn’t even show up. Trial of cases under these procedures was expected to be concluded with 20 days.

While the 1996 CPL required that the court and procuratorate both agree to apply the summary procedures, the law was silent as to the defendants’ consent to the procedures or on their admission of guilt. 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 text of the CPL  itself allowed that the defendants in summary procedures cases could address the court and debate the prosecutor if present, suggesting they might not have entirely conceded the case, but the SPC may have seen the lack of a full trial to be incompatible with basic principles of justice where the defendant completely denied the charges.

Shortly after the 1996 CPL took effect, several courts began experimenting with expanding the use of ‘simplified’ procedures, and these experiments were ultimately validated in a legally effective Opinion issued jointly by the SPC, SPP and Ministry of Justice in 2003.[i] The Opinion offered simplified procedures for 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 the presentation of evidence, could be limited for 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 charges and sentencing.

Showing concern that defendants’ rights might be circumvented and courts’ authority undermined if a full trial was not given to a defendant who demanded one, the Opinion required the defense to consent to the application of these simplified procedures. Further, judges were required to inform the defendants of their rights and confirm that they understood the consequences of using these procedures. Also, to avoid the appearance of impropriety and preserve the states’ interest in important trials, certain major or sensitive cases still always 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’s simplified 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 concerns that continue to plague plea bargaining negotiation systems today:

The first is the fear that criminals are escaping justice. As criminal punishment is meant to both reflect societal condemnation of the criminal activity and be aimed at reformation, there is concern that prosecutors and courts are making a deal with the devil, waiving punishment just to save time and avoid more work. Victims, who often seek harsher punishment, are legally considered a party to criminal cases in China, and judges seek to give them resolution through trial and sentencing. At the same time, even where victims are mollified, the larger society may be dissatisfied.  Compensating victims and obtaining their forgiveness is the primary means that defendants demonstrate remorse and repentance to receive a lenient sentence. This leads some to fear that ‘plea bargaining’ might be distorted into little more than lighter sentences being purchased outright through settlements. Legal scholars, of course, justify sentence reductions based on such payments by arguing that they reflect the defendants’ reduced culpability and a reduction of the crimes’ principle harm.

The second concern is that prosecutors will become too powerful. Sentencing is without question part of judges’ adjudication power. When prosecutors begin to discuss charges and sentencing recommendations with defendants, and select procedures based on the likely sentencing outcome, there is real concern that judges are losing control of this power. While it is less often expressed, the concern is also that prosecutors will be able to easily coerce confessions from even innocent defendants who don’t understand their procedural rights or feel they have no other option.

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

The Current Reform Era (2014-Present)

Expedited procedures

More recent pilot projects have built on the Criminal Procedure Law developments described above to explore systems for further abbreviating procedures, and standardizing sentencing reductions for those admitting guilt.

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 a confessing defendant essentially waives all rights to a trial, although they will still appear in court to have a judge evaluate the voluntariness of the confession and make a sentencing decision. 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].  Beyond this, the rules closely tracked and incorporated the existing requirements for the CPL’s Summary Procedures, with a few notable innovations:

• The defendant must agree to accept a Prosecution’s sentencing recommendation: there is no guarantee that a judge will accept the recommendation, but this requirement opened the door for some form of sentence bargaining for the first time.

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

• Providing Legal Assistance. While their exact role is unclear, the pilot sites were tasked with creating ‘duty counsel’, to be regularly present in jail houses and courts and advise suspects and defendants. They are not intended to serve as defense counsel throughout the case, but are available as a resource to discuss the EP system, and whether a plea is appropriate. The accused may still retain counsel and apply for legal aid as in any other criminal case.

• More Specific Sentence Reductions- While each pilot site varied in its specific implementation, 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 confessions,’ and of ‘blending severity with leniency’.

Following the completion of the initial EP pilots, the national legislature authorized their continuation, and expanded the range of eligible crimes to include those where punishment might be as high as three years. Moreover, a related 2 year pilot on Plea Leniency was authorized offering similar procedures, but applicable in all criminal cases. A more detailed consideration of the Expedited procedures can be found in Appendix B.

Plea Leniency Pilots

The second round of pilots began in November 2016 and will run for two years in the same 18 cities as the Expedited Procedures Pilots. Officially known as the “System of Leniency for Those Who Admit Guilt and Accept Punishment in Criminal Cases” （刑事案件认罪人罚从宽制度  Xingshi Anjian Renzui Renfa Congkuan Zhidu）, the pilot system focuses more on sentence reductions for those who confess than on simplified procedures, but incorporates the summary and expedited procedures discussed above whenever applicable.

For simplicity’s sake, the system will be referred to here as the ‘Plea Leniency System.’ Entering a formal ‘Plea’ isn’t really part of the Chinese criminal justice 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. It should also be noted that despite many similarities, there has recently been an effort to distinguish the plea leniency pilots from the U.S. plea negotiation system. Effort has been made to present this system solely as one of granting leniency to those who show remorse, rather than as a transactional exchange of leniency for reduced sentences, and to emphasize that there can be no deviation from the appropriate charges or any failures to find the actual facts.

National Pilot Measures for the Plea Leniency System were released publicly in late 2016 calling for the pilot sites to quickly develop local implementation measures, but those local measures have been unusually hard to track down. Even now, well into the second year of the pilots, only 10 pilot site measures were located. Preliminary analysis shows substantial variation in those that have been found, and it is not at all clear that this is by design, or that anyone has carefully considered these differences and their potential impact on implementation. Understanding them, however, will be critical for understanding and evaluating each region’s experience with the Plea Leniency system, including their successes and challenges. [Table 1 lists the pilot sites and whether pilot rules were located]

Table 1: Availability of Local Implementation Measures

Covered Cases

What is a plea?

            The plea leniency system may be applied in any criminal case, regardless of the charge and potential penalty, so long as the defendant admits guilt and accepts punishment. The National Pilot measures provide that in plea leniency cases the confession must be voluntary and truthful, the defendant must accept the alleged facts, agree to the prosecutors’ sentencing recommendation, and sign an affidavit affirming this.

The local pilot implementation rules all reiterate these basic requirements, and many add further considerations. Some areas distinguish between factors related to ‘admitting guilt’ and ‘accepting punishment’, while other areas seem to favor a more holistic consideration, taking ‘admitting guilt and accepting punishment’ as a single requirement. Table 2 below is a comparison of each region’s requirements for finding a ‘plea’, indicating the article numbers where relevant measures can be found in the local rules. Where numbers are in Green, that means they are explicitly listed an element of ‘admitting guilt’ and those in red are expressly elements of ‘accepting punishment’; cells shaded in pink indicate a that the factor is not a requirement, but only a consideration.

Table 2: Requirements for ‘Admission of Guilt and Acceptance of Punishment’

Notice that there is a spectrum of approaches to the question of whether it is necessary that the accused agree with the specific charge, as well as the alleged facts, for there to be a finding that they have ‘admitted guilt’. Half of the pilot sites (and the national measures) make no mention of the charge at all. Four other pilot cities specifically state that as long as a suspect or defendant has no objections to the alleged facts, they are considered ‘admitting guilt’ even if they raise an objection to the charge. Dalian alone goes the other direction and requires that there be no objections to the charge in a plea leniency case.

As for ‘accepting punishment’, a number of regions specify that this must include agreeing to the proposed sentencing range, type of punishment, and the means of enforcement. Two locations find that defendants must compensate victims if able to be considered accepting punishment, and an additional three pilot sites consider compensation only as one factor in the determination. Still more sites consider victim compensation only at sentencing, as will be discussed below.

Exceptions to Application of Plea Leniency

The national rules also provide some situations where application of the plea leniency system is considered inappropriate. Two of these, a prohibition for defendants with limited capacity due to mental illness or minority, are clearly concerned with preserving the integrity of the plea. The Plea Leniency system does not require forfeiture of trial rights, but the accused does need to admit guilt and agree to a sentencing recommendation, and there is a real concern that those with limited capacity cannot voluntary do so. As to juveniles, if there are no objections from the accused’s representatives or defenders, plea leniency may still be applied.

A third prohibition is that the Plea Leniency system is not to be applied where the accused’s conduct does not amount to a crime, protecting the credibility and authority of the courts. No conviction should ever result where there was no crime, of course, but this prohibition also suggests a duty for the courts to confirm the factual basis of the plea, regardless of the confession. Some regional rules expand this exception to prohibit cases where upon review the conduct ‘might’ not constitute a crime, further emphasizing the courts’ duty to investigate the facts. (Beijing 5(3), Fuzhou 7(3), Guangzhou 6(4), Tianjin 9(3)). As of yet, there is no clear standard for when a court or prosecutors have adequately confirmed the truth of the confession, and this is a frequently raised concern by judges who are hesitate to aggressively use plea leniency procedures.

In a final catch-all exception for ‘other situations’, the national rules open the door for local pilot sites to exclude other types of cases. Most additions by local sites, however, are simply situations that call the voluntariness or truthfulness of the confession into doubt, such as the defender arguing that the accused is not guilty (Beijing, article 5(3), the accused’s refusal of legal assistance (Guangzhou art 6(3), Fuzhou article 20), or their denying facts at court (Chongqing 27, Dalian 26(1)) .  Beijing and Xi’an prohibit application where the accused undermines proceedings, such as by faking evidence, disrupting witness testimony, and similar conduct that seems incompatible with ‘acceptance of punishment’ (Beijing 5(4), Xi’an 5(4)); which is likely also the reasoning behind Shenzhen’s prohibition on Plea Leniency for those who violate terms of pretrial release (Shenzhen 4(3)).  One prohibition that stands out is for cases of particularly heinous crimes, where even a valid plea cannot merit a reduction in sentence. (Beijing 5(5), Tianjin 9(4) Xi’an 5(5)).

A few pilot locations distinguish situations where Plea Leniency is permitted, but should be used only cautiously. These overlap with situations discussed above, but also include cases where there is a risk of public discontent if a lenient sentence is given. Dalian even includes “cases with vile social impact” as one such case type (article 6(2)). Others include particularly heinous or cruel crimes (Qingdao 6(2), Fuzhou 8(2), and Tianjin 10).

Table 3: Circumstances Prohibiting or Cautioning Against Plea Leniency

Leniency

Form of Sentencing Recommendation

            Having discussed the ‘admission of guilt’ and ‘acceptance of punishment’ it is time to move on to the specifics of ‘Leniency’.  This involves not only considering what sentence will ultimately be given, but what form the prosecutors’ recommendations will take. For example, the national rules state that prosecutors can submit either a relatively specific penalty range or propose a specific penalty; but that for financial penalties specific amounts should generally be given (11). Most areas simply repeat this rule with no modifications, or minor changes, such as Guangzhou, which allows a ‘relatively definite’ amount to be proposed for financial penalties. Two regions have somewhat more unique systems.

In Dalian, recommendations for controlled release or short-term detention (under 6 months) are to be given as a sentencing range that is to be more specific the shorter the punishment is. For example, when the punishment is to be up to 3 years imprisonment, prosecutors should suggest a range no broader than 6 months. This information will help the judge more precisely understand the prosecutions’ assessment of the case, and will also make sure that defendants aren’t asked to consent to an overbroad range. (17)  Following a similar principle, Shenzhen suggests a specific period be proposed for penal terms under 3 years, either a specific period or a range for terms between 3-5 years, and a ‘relatively clear’ range if longer than 3 years. (26)

Calculation of Sentence

There is substantial variation among the pilot sites, not only as to maximum sentence reductions, but also as to what factors are even considered. The national rules offer little guidance except in stating that 1) compensation of the victims should be an important sentencing factor, and 2) absent statutory authorization, or permission from the Supreme Court, sentences should not go below statutory minimums (articles 11, 22 respectively).  Table 4 below summarizes what factors each pilot site expressly considers.

Table 4: Sentencing Considerations

The first two factors in Table 4 concern compensation to victims. This is the sole factor identified in the national measures, so there is no surprise that it is so widely recognized, but interesting to see that not all areas label it as an ‘important’ factor as the national rules do, and that some consider victim satisfaction separately from the return of goods. Remember, some areas consider victim compensation and restitution as factors in identifying whether there has been ‘acceptance of punishment’ as well as sentencing factors.

Items 3-8 consider the circumstances and character of the confession. Some of these, such as the accused’s attitude, proactivity, and the stability of the plea, seem aimed at teasing out the degree of remorse shown by the accused. The comprehensiveness of the confession and its value to breaking the case seem to focus more on judicial efficiency, recognizing the saved resources that a confession can offer, as does the consideration of whether expedited or summary procedures were used.

Of the factors mentioned, the timing of the plea is particularly important not only because it is mentioned in almost every pilot site’s rules, but because many of them go into great detail about how it should be considered. For several regions, the phase of the criminal process during which a plea is made is the single most important factor in determining the scope of leniency.

Table 5 below lays out the permissible extent of reduction from the base penalty in a case, as related to what phase of the trial the suspect or defendant admits guilt and accepts punishment in. In addition to variation in the punishment ranges, the overall structure of the reduction schemes can be quite different. Some areas like Qingdao and Shenzhen simply note that the phase is a relevant factor, while Zhengzhou offers distinct maximum sentence reductions for each phase. Whether a plea made for the first time on appeal at the second instance trial can recognized for leniency is only mentioned in half of the pilot site rules, with minimal guidance as to what the reduction should be.

Table 5: Penalty Reduction Possible for Pleas at Different Phases of Criminal Process

Within a specified sentencing range, no further guidance is provided on what penalty should be given. This means that prosecutors must apply the Criminal Law’s general sentencing factors to the specific facts, as they would in any case. Those sentencing factors already include a few forms of mitigation for suspects who turn themselves in and/or confess their crimes, and there has been some question as to the relationship of these existing mitigating circumstances to the Plea Leniency system.

China’s criminal law includes both mandatory and discretionary sentencing circumstances, and distinguishes between ‘mitigation’ and ‘commutation’. Mitigating factors allow for a lenient sentence within the statutory sentencing range while commutation allows for a reduction below the usual minimum penalty. Of the Criminal Law sentencing factors, ‘voluntary surrender, confession (coming clean), and meritorious service are the most directly related to ‘admission of guilt and acceptance of punishment’. Voluntary surrender refers to turning oneself in and confessing, and can be either a commuting or mitigating factor, even leading to a waiver of punishment. Confession alone (after capture) is only a mitigating factor, unless it allows for the prevention of some serious harm. Meritorious service usually involves providing information to help stop other crimes, and can result in either commutation or mitigation, where it is ‘major’ meritorious service; a waiver of penalties is possible. Table 6 below shows the relationships between plea leniency and other types of leniency.

Table 6: Relationship of Plea Leniency to other Leniency Factors

Only two locations, Chongqing and Zhengzhou, directly address the pilots’ relationship with the mitigating circumstances of surrender and confession found in Criminal Law Article 67. Zhengzhou’s rules provide that the plea can be considered as a mitigating factor under Article 67, but that article 67 reductions should only be applied once. Essentially this means that the confession in the plea is to serve as the confession for mitigation. Chongqing follows suit, although the framing is slightly different. Chongqing’s article 46 directly provides that the admission of guilt should be handled as confession under Criminal Law Article 67, and that the further plea leniency reductions relate to the ‘acceptance of punishment’ portion of a plea.

Meritorious Service is mentioned in the national rules, but only in terms of when a case may be dropped entirely, either by the police or the Procuratorate. Both require that there be major meritorious service, or a benefit to a national interest, which is a very high standard and unlikely to come up frequently.

As for commutation generally, the various measures are clear that commutation should rarely be given on the basis of a plea alone, and generally requires a legally-prescribed basis. Where it is truly necessary to go below the general minimum penalty without such a basis, approval must be obtained from the Supreme People’s Court. Only Zhengzhou specifies that where there is a legal basis for commutation AND a plea, the scope of the commutation may be further expanded. (35).

Court Review of Sentencing

Regardless of whether expedited, summary, or ordinary procedures are applied, the court retains the sentencing authority. The national pilot measures however, provide that the court shall usually accept the procuratorates recommended sentence and charges unless through trial it is found that:

1. There was no crime,
2. The accused’s plea was involuntary,
3. The accused denies the facts,
4. A different charge is confirmed at trial,
5. Other factors impacting basic fairness. (National 20)

Beijing (33), Fuzhou (44), Guangzhou (37), Shenzhen (35), Xi’an (30), and Zhengzhou (26) fully repeat this rule without modification. Tianjin (34) adds another exception where the defender rejects facts or makes an innocence defense, while Dalian chooses not to list any exceptions at all (18). Qingdao adds an exception where the sentence is abnormally light or heavy even after the procuratorate is given a chance to adjust it. (37)

Adjustments by the procuratorate are the preferred option whenever there is an issue with the sentencing recommendation, as where either by the court finds it ‘clearly improper’ or the defense objects. Where problems continue, the court is the ultimate sentencing authority and may impose a sentence in accordance with law. (National 21, Beijing 34, Chongqing 48, Dalian 19, Fuzhou 46, Guangzhou 37p2, Qingdao 38-39, Tianjin 35-36, Xi’an 31 and Zhengzhou 27). Shenzhen follows this general principle but mentions only the courts judgment that a sentence is improper, and not the defense’s objections.

Three regions, Qingdao, Tianjin and Zhengzhou, also provide that procuratorate has a chance to launch an appeal if it feels the court’s refusal to accept the charges and sentencing recommendation were incorrect. (Qingdao 42, Tianjin 36p2, Zhengzhou 39).

Pretrial Release

In addition to speeding up trials, the plea leniency system and expedited procedures pilots have been touted as reducing pretrial detention. In China, pretrial detention remains the norm in criminal case and can last several months. Detention, especially extended detention, is inherently coercive and runs the risk of tainting any confession given during it, presenting a real challenge to the legitimacy of the Plea Leniency system.

The main alternatives to pretrial detention are the ‘compulsory measures’ known as release on guarantee and residential surveillance. These procedures can include a wide range of restrictions on conduct, but do allow the suspect to leave the detention center. After the Procuratorate approves arrest, which continues pretrial detention, it has a continued duty to continuously review the necessity of detention, and apply one of the release measures if detention is no longer necessary.

Both Release on guarantee and Residential Surveillance may be imposed by the police, procuratorate, or the courts depending on the phase of the criminal process. The general requirements for Release on Guarantee are that a punishment of controlled release (a type of restrictive probation) or short-term detention (up to six months) might be given, OR that pretrial release will not endanger society. (CPL 65).  Residential surveillance may be imposed whenever the suspect is unable to care for themselves, is pregnant, nursing, or the sole caretaker of an invalid, or meets the requirements for Release on Guarantee but cannot secure a guarantor. (CPL 72).

In the Plea Leniency pilot measures, pretrial release is further encouraged in that one of these two release measures SHALL, not just may, be imposed whenever there is no threat to society. Only Dalian does not explicitly reiterate this rule that appears in the National Measures. Three jurisdictions, Beijing, Fuzhou, and Xi’an, require release whenever ANY of the conditions are met, meaning there should be release on guarantee under the light sentence expectation grounds as well (N6, BJ 15, CQ 22. fZ 25, GZ 4p1/10, QD 8, SZ 9, tJ 18, xa 15, zz11).

Moreover, the national rules, and most of the regional rules, allow that the defendants’ admission of guilt and acceptance of punishment itself may be an indication that the suspect’s release would not pose a threat to society, in theory increasing the likelihood of pretrial release. Qingdao further adds that settlement with the victim may be an additional factor in considering societal dangerousness.

Despite these encouraging indications, however, a midterm report on the pilots indicates that 57.8% of suspects remained in custody pretrial during plea leniency cases- though it wasn’t possible to estimate how long that detention lasted.

Duty Lawyers

One of the major innovations of the expedited procedures pilots was the widespread use of ‘duty lawyers’ – legal aid lawyers stationed at, or frequently appearing at, detention centers, courts, and sometimes procuratorates and police stations. The role of the duty lawyers may still be evolving, but it is known that duty provide something less than a full defense. They are only there to offer legal consultation and familiarize the accused with their options. In addition to the relevant pilot project regulations,  the nations’ top criminal justice institutions have jointly released a comprehensive set of guidelines (the “Duty Lawyer Opinion”) establishing a duty lawyer system for all cases, although duty lawyers are most active in expedited or plea leniency cases.

To encourage reliable and timely access to duty lawyers, the National Pilot Measures provide that detention centers and courts may establish legal aid workstations as needed, and the Duty Lawyer Opinion concurs, but adds that these workstations may be established in procuratorates as well. Some of the regional pilots have taken this a step further by making the workstations mandatory and/or adding additional locations for workstations.

Table 7 below illustrates which regions mandate versus allow for the creation of workstations, and where they are to be established.

Table 7: Legal Aid Work Stations established by Legal aid institutions

Duty lawyers are to provide legal assistance to suspects or defendants who do not already have defenders, which can be either someone they have retained or a legal aid attorney appointed for them. Suspects in China have the right to hire an attorney or entrust a non-attorney as defender, and may apply for a legal aid defense attorney. Courts are only required to provide a legal aid defense lawyer to certain vulnerable classes of suspects and defendants- the blind, deaf, mentally ill, juveniles, and any defendant who is facing life in prison or the death penalty.

When are duty lawyers available?

The effort to have duty lawyers’ present in detention centers etc., does not guarantee that suspects and defendants will be able to exercise, or even be aware of, their rights to meet them. The Duty Lawyers Opinion provides that courts, procuratorates and public security organs are all to inform suspects and defendants of their right to receive assistance from a duty lawyer. Of the pilot measures, only Fuzhou’s expressly reiterates this rule. Far more commonly addressed is that duty lawyers must be brought in when it appears the suspect or defendant is ready to plea, which has caused some to question whether legal assistance from a duty lawyer is only available following a confession.

The various pilot measures are significantly more likely to require that state actors’ inform criminal suspects and defendants of their right to apply for legal aid. As will be discussed below, assisting in such an application is one of duty lawyers’ functions, but there is no mandatory rule that a duty lawyer shall be notified to provide this assistance.

Table 8 below lists provisions on various state actors’ (and duty lawyers’) obligations to notify suspects and defendants of their right to seek legal assistance from a duty lawyer or legal counsel, and when the assistance is required to be provided.

Table 8: Notification of Availability Legal Assistance, Legal Counsel

Powers of a duty lawyer

The Duty Lawyers Opinion lays out the basic functions of duty lawyers in plea leniency and other criminal cases. In all cases, they are able to provide legal advice and consultation, and to assist suspects, defendants, and their families in applying for legal aid and sending in application materials (3). The opinions make clear that unlike normal legal aid defenders, they are not to appear in court to represent the defendant.

In plea leniency pilot areas, duty lawyers are able to provide ‘legal assistance’ which includes legal consultation, assistance in procedure selections, helping apply for modification of pretrial restrictions, submitting comments on the procuratorates’ case and sentencing, and being present when the a plea affidavit is signed. (3(3)). The midterm report on the pilot says that some areas (Beijing, Fuzhou, Guangzhou) are exploring systems for transitioning duty lawyers into actual defenders that appear in court when the sentence might be three or more years.

The pilot measures give substantially more detail on the rights and powers of duty lawyers, largely equating them with retained defenders pretrial. Most critical of these powers is the right to be heard before trial. The national rules provide that investigators should generally ‘hear the comments’ of the duty lawyer, and list specific areas that the prosecution should hear opinions on including the charged offense, the applicable law, the degree of leniency, and the trial procedures to be used. [See Table 9]

The local site measures largely expand upon these rights, but a few locations go in the other direction. Chongqing limits investigators’ consultation with duty lawyers to situations where the duty lawyers request to be heard. Guangzhou and Zhengzhou, limit investigators’ meetings with duty lawyers to situations where the suspect has already expressed their intent to plea.

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. It is thus encouraging to see that Beijing and Xi’an not only call for prosecutors to ‘hear the opinions’ of duty lawyers or counsel, but also to ‘exchange’ views with them—suggesting more meaningful interaction. Chongqing, Fuzhou, Guangzhou, and Shenzhen go a step further, calling for ‘negotiations’(协商) on some issues. Shenzhen’s use of ‘negotiation’ is particularly noteworthy, because it expressly relates 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 reserves 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 says that the Procuratorate may adjust its sentencing recommendations in response to pretrial defense objections. Guangzhou allows for ‘negotiation’ on the sentencing recommendation. See Table 9.

Table 9: Duty Lawyer Opportunity to Talk with State Pre-trial

The duty lawyers’ relationship to the accused still needs clarification. A duty lawyer is never formally retained and will not appear in court as a defense lawyer, but does have a duty of confidentiality as to information provided by suspects and defendants. (Duty Lawyer Opinion 6).  In terms of both ethically discharging professional obligations and procedural fairness, it is critical that these lawyers be able to clearly explain their function and obligations to suspects and defendants they serve.

In addition to submitting comments and negotiating with the prosecution and courts, duty lawyers’ primary responsibility is to give legal consultation and assistance in procedural selection and applications for modification of pretrial restrictions. A few of the local rules provide further detail, including the obligation of duty lawyers to help ensure the voluntariness of pleas by informing suspects or defendants of their procedural rights, the nature of their plea, the possible legal consequences of a plea, and the right to apply for a legal aid defender. Where a suspect or defendant seems interested in making a plea, duty lawyers are obligated to inform the state.

Table 10: Other Major Functions of Duty Lawyers

The signing of the plea affidavit is another phase where the duty lawyers’ role is in question. When a suspect or defendant who has not retained a defender signs an affidavit commemorating their admission of guilt, acceptance of punishment, and agreement to the sentencing recommendation, the duty lawyer is to be present, and in some areas is required to sign the affidavit. While this measure seems intended to legitimize the affidavit by protecting against coercion, lawyers are uncomfortable with being drafted into the process.

The lawyers argue that if they haven’t fully represented and counseled the client, 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 actual consequences if the accused ultimately proves factually innocent. If the duty lawyers role at the signing is solely to be an ‘authenticating witness’, as Guangzhou and Shenzhen expressly state, and they bear no responsibility for the affidavit’s content, the lawyers’ question why this function must be performed by a lawyer at all. Fuzhou’s pilot measures place great importance on their identity as a lawyer to witness the signing, requiring that the duty lawyer be present even where the accused has retained a defender that is not an attorney.

Table 11: Duty Lawyers Function in Signing of Affidavit

Another question that sheds some light on the role of the duty lawyer in relation to the accused is whether the accused can reject their assistance, or demand that a new duty lawyer be appointed. Most of the pilot measures are silent on this issue, and there is little consensus among those that do have relevant provisions. Chongqing for example, will honor a request to change duty lawyers for a ‘legitimate reason’ (as does Fuzhou), but will not allow a full rejection of duty lawyers unless a defender is retained. Fuzhou and Guangzhou hold only that refusal of all duty lawyer assistance is allowed, but precludes application of plea leniency. Dalian and Qingdao allow a refusal of duty lawyer assistance, but Qingdao requires written verification of the refusal of legal assistance, and Dalian still requires the rejected duty lawyer to be present when the affidavit is signed.

Table 12: Defendants Rejection of Duty Laywers

Finally, China’s criminal defense lawyers have long complained of the three challenges (三难) they face in practice: difficulty in accessing the case file, meeting clients, and collecting evidence. Since the 2012 revisions of the Criminal Procedure Law many report great improvement in these areas, but duty lawyers might face these old problems anew. Most of the Criminal Procedure Law improvements refer to ‘defenders’ and ‘defense lawyers and would not apply to duty lawyers without express expansion.

As can be seen in Table 13 below, the national rules are surprisingly light on these areas, particularly even whether duty lawyers will have access to the case file. Only half of the pilot sites available (Beijing, Chongqing, Fuzhou, Guangzhou, and Xi’an) expressly state that duty lawyers should have access to the case file, and attorneys from some regions have said that they have been denied access. Only Guangzhou goes so far as to mention that duty lawyers have full powers of discovery.

As many criminal defendants in China still lack any representation, even an initial consultation with qualified counsel could prove invaluable to many detainees. For duty lawyers to be able to meaningfully consult on the specific case, however, it will need to be made clear that they possess these basic rights, and the right to see all evidence advantageous to their client.

Table 13: Duty Lawyers and the 3 Challenges of Criminal Lawyers

Victims

As mentioned above, victims are considered parties to criminal cases and their satisfaction with outcomes is a major concern for criminal justice practitioners. As such, compensation and settlement with victims is one of the key sentencing factors. Victims are also entitled to have their opinions heard in plea leniency cases, and sometimes even to make a statement. Most of these rules duplicate what appears already in the criminal procedure law or the expedited procedure pilot measures, but are consolidated here as a reference.

Timing

As the plea leniency system can be applied using summary, expedited, or ordinary procedures, it is difficult to give a full procedural timeline. However, because the pilot measures do make some alterations to previously existing timelines, it is worth a quick review of some notable provisions.

Modification of Expedited Procedures

Article 12 of the national measures allows that when applying the expedited procedures, the procuratorate is usually to make a decision on whether to indict within 10 days, allowing for a possible extension to 15 days in cases that might end with a sentence of 1 year or longer. This is a substantial increase from the previous expedited procedures pilot, which allowed that the decision would usually be made within 8 days. (Article 8). Similarly, Article 16 increases the general period for trial has been extended from 7 days to 10 days, again with a possible extension to 15 days where the sentence might be 1 year or longer. (article 15).

Interestingly, the period for investigation in expedited procedures was also reduced or changed in some areas.

Beijing provides that where arrest is necessary, an application should be sent to the procuratorate within 7 days of the suspect being brought into custody, and that the investigation should not last more than 30 days after the imposition of compulsory measures [release on guarantee, residential surveillance, arrest] (21) Shenzhen follows the 30-day rule, but does not specify a time for applying for arrest. (15).  In Beijing, where the suspected offense is DUI, which made up a majority of expedited procedure cases in the first pilot, or other minor crimes, the investigation should conclude within 10 days. (21p2).

In Xi’an, the police may take 15 days to complete their investigation when the suspect is released on guarantee or under residential surveillance. (20p3) Where they are detained, however, the police must either request arrest or complete the investigation within 7 days. (20p1,2). If arrest is approved, they may detain the suspect for an additional 5 days. (20p2).

Once the case is in the hands of the procuratorate, the review for prosecution should usually be completed within 10 days, but may be extended to 15 days if the punishment might be 1 year or longer imprisonment. National 12; Accord BJ 25, CQ 34p1, FZ 38, QD 24, SZ 24p1, TJ 28p1, XA 25, ZZ 37p1) Once the courts accept the indictment and file the case, the trial should similarly usually be concluded within 10 days, which may be extended to 15 days where the punishment might be greater than 1 year. (National 16p2, Accord BJ 29p2, CQ 43p1, FZ40p2, GZ 40p2, QD 30p4, SZ 31p2, TJ 30p2, XA 27p2, ZZ 37p2),

Zhengzhou innovates with a super-fast procedure for expedited procedures cases that are likely to have a punishment of short-term detention or lower. Here investigation may last up to 7 days, but where adequately completed in 3 days, may be sent to the procuratorate which will complete its review within 2 days, or modify the compulsory measures. After accepting the case, the people’s court should also complete trial in two days or modify the compulsory measures.

Timing for summary procedures is largely unchanged because it is already codified as part of the Criminal Procedure Law, which allows

In the midterm report we are also told that a few pilot regions, Beijing, Nanjing, Tianjin, and Zhengzhou are exploring creating special mechanisms for completing all steps of the criminal process during the time allowed for initially taking a suspect into custody.

Conclusion

It is difficult to know where the Plea Leniency pilots are headed. The current form is very much a work in progress, but seems to leave many legal professionals confused or dissatisfied. Lawyers brought into the duty lawyer system feel they are being burdened with a new responsibility that they lack the power to properly carry. Prosecutors face little risk of ever losing a conviction at trial so have little motivation to ‘bargain’ with suspects. At same time, they can face severe consequences for wrongfully decided cases, such as brought on by a false confession, and have pressure from victims to deliver justice, so feel that plea leniency cases take at least as much work as others. Judges complain that their sentencing autonomy is being encroached upon; and scholars grumble that although the procedures are being expedited to fatten up trials in more complicated cases, those cases are still looking rather lean as well.

Plea leniency is still just a pilot project, and the purpose of pilots is to identify problems before making law. They are intended to be a work in progress, and the different pilot sites are supposed to be trying out different things. Evaluating and refining the pilot experiments into a workable law, however, requires that scholars have access to data from the different sites and be aware of their methodological differences to give it context. Well into this pilot, it is still unclear if anyone is watching closely to plot the course ahead.

Appendix A: History of Simplified Criminal Procedures