Friday, February 24, 2017

Will a New Judicial Interpretation on Cults Lead to Greater Leniency?

Underground church goers watch a service on a video screen in Beijing. Image Credit: Express UK.

Since coming into force in October 1997, Article 300 of the Criminal Law “organizing/using a cult to undermine implementation of the law” has been frequently used to suppress groups such as Falun Gong, unofficial Christian groups, Buddhist sects, and over a dozen qigong groups including Zhonggong. Accompanying this law, two judicial interpretations were jointly issued by the Supreme People’s Court and Supreme People’s Procuratorate on October 1999 and June 2001, respectively, to explain the law's specific application. Effective since February 1, 2017, the latest joint interpretation of Article 300, consisting of sixteen articles, adds a new penalty range based on leniency and serves to redefine the sentencing standard.

New Sentencing Standard

The new interpretation incorporates previous changes made to the ninth amendment of the Criminal Law in November 2015 concerning the standard of punishments for cult crimes. Of significance is the elaboration of what is meant by “relatively minor circumstances” that can result in a sentence of three years or less, detention, surveillance, deprivation of political rights, fines, or combined penalties with fines. Such “circumstances” are defined in the interpretation as acts that inflict lighter social harm, which are measured by quantifiable factors such as: the number of cult propaganda materials produced and disseminated, the number of views or downloads of a cult propaganda video, the amount of economic loss caused by cult activity, or the number of members recruited by the cult. An act is considered relatively minor when such an amount or number falls below one-fifth of what is accepted as the new normal standard (see below).

In the future, we can expect to see more cult offenses deemed as “relatively minor” cases, partly because by raising the benchmark for evidence necessary to imprison cult prisoners for up to three to seven years, the new interpretation has expanded the scope of activities that fall under the category of “minor” cases. For instance, the quantity of print propaganda materials (such as leaflets, banners or newspapers) produced or disseminated for cult purposes that constitute a normal offense has now been raised to 1,000, a significant leap from 300, as stated in the 2001 interpretation. For propaganda in the form of books or publications, the quantity for a normal offence requires evidence of at least 250 materials, again a significant leap from the previous count of 100 publication materials. The interpretation also quantifies a number of additional criminal behavior used to determine sentencing.

List of criminal behaviors revised in Article 2 of the interpretation:

  • Recruiting over 50 members;
  • Swindling or leading to an economic loss of over one million yuan;
  • Using at least 500 banknotes as a means to disseminate information about a cult;
  • Manufacturing or disseminating cult propaganda over a certain amount:
    • over 1,000 leaflets, spray paints, pictures, banners and newspapers;
    • over 250 copies of books or publications, cassettes or audio-videotapes; or logos or signs;
    • over 100 CD-ROMs, U-disks, memory cards, mobile hard drivers or other mobile storage devices;
    • over 50 banners.
  • Using the Internet to disseminate information about a cult:
    • manufacturing or disseminating over 200 digital pictures or articles, over 50 copies of e-books, publications, audios or videos, electronic files with over five million characters, or electronic files exceeding 250 minutes;
    • composing or making over 1,000 messages or phone calls;
    • using online chatrooms, chat groups, WeChat, microblogs or other social networking services to spread information about a cult involving over 1,000 members or followers;
    • cult messages with over 5,000 views or clicks.

A circumstance is considered “especially grave” when the quantity is five times more than the numbers stated above, and can lead to imprisonment of seven years or more. Although the ninth amendment to the Criminal Law increased the maximum sentence from 15 years to life, it has not been imposed for the single offense of Article 300. For example, while the Buddhist leader Wu Zeheng (吴泽衡) received a life sentence for charges of fraud and rape, his crime related to cult activity afforded him a sentence of 12 years.

Greater Leniency Despite a Surge in Cult Cases

Dui Hua’s Political Prisoner Database has collected information on over 8,000 individuals convicted of Article 300 of the Criminal Law between 2000-2016. Most convictions in the early years after Falun Gong was labelled an “evil cult” in 1999 are now considered “particularly serious circumstances” under the new interpretation. During that time, a number of high-profile leaders such as Wang Zhiwen (王治文) and Li Chang (李昌) were given lengthy sentences of over 10 years for multiple offenses.

Image Credit: Dui Hua Foundation.

Since December 2012, the total number of cult convictions recorded in the database has surged as a result of the nationwide clampdown on the group the Almighty God, and an improved level of judicial transparency due to the more regular online posting of court judgments. Nonetheless, the appearance of a new religious threat does not appear to be met with the same intensity compared to the Falun Gong crackdown of the early 2000s. Most convictions of Almighty God members resulted in sentences of three to four years' imprisonment, and fewer than 10 percent of all cult sentences in the same period exceeded seven years. Also noteworthy is the surge of cases now considered relatively minor with sentences of three years or less. In 2016, over half of the convictions for cult activity are now considered relatively minor cases according to the new interpretation, superseding the number of ordinary cult cases for the first time since the offense was codified in the Criminal Law.

Leniency in the form of shorter sentences is a further indication of an overall relaxation of the clampdown on cults. Article 9 of the interpretation states that:

“a perpetrator can be exempt from indictment or criminal punishment if he or she expresses sincere remorse about his wrongdoing, and exhibits a willingness to leave the cult and cease joining in its activities. Those who are deceived or intimidated into joining the cult will not be handled as criminals.”

Showing remorse is a prerequisite for prisoners seeking clemency, and it is not uncommon for prisoners charged with cult crimes to receive sentence reductions after expressing remorse for their behavior. Dui Hua’s Political Prisoner Database recorded over 300 instances of clemency in 2014 for cult prisoners and in 2015, the number surged to nearly 500.

Deprivation of Political Rights

Despite the trend towards greater leniency in sentence reductions, public security authorities also appear ready to continue exercising control over cult prisoners even after they have completed their sentences. Article 14 of the interpretation states that a supplemental sentence of “deprivation of political rights” (DPR) up to five years may be imposed on cult prisoners. Prior to the interpretation, only prisoners sentenced for the crime of “endangering state security” and a number of violent crimes were subject to a supplemental DPR sentence, depriving them of the right to vote, the right to stand for office and the right to hold a position in a state-owned company, regardless of the fact their sentences had already been completed. Of particular concern to cult prisoners is that individuals under DPR are prohibited from writing articles or giving interviews.

Dui Hua will closely monitor the application and impact of this new interpretation for cult prisoners. The new sentencing standards suggest an expansion of crimes considered “minor” and hopefully a reduction of cult prisoners serving long sentences. That said, the enhancement of the use of DPR may present new opportunities for public security authorities to exert control over cult members even after their release.

Wednesday, February 8, 2017

Leping 5.24 Murder Case: Wrongfully Convicted Seek Justice From Those Responsible

In May 2015, lawyers and activists protesting outside of Jiangxi High Court for the right to review the Leping case file. Source:, China Digital Times

On January 16, a group of lawyers filed a criminal complaint with prosecutors in Jiangxi Province against law-enforcement and judicial personnel responsible for one of China’s most infamous cases of wrongful conviction. There is yet no word on whether prosecutors will act on the complaint.

Late last year in the city of Leping, four men were acquitted of murder and rape, charges dating back to a sensational case from May 2000 involving the murder and dismemberment of a man and a woman. Local police came under serious pressure to solve the case after it went unsolved for two years, leading them to arrest Huang Zhiqiang, Fang Chunping, Cheng Fagen, and Cheng Lihe in 2002. These men have spent most of the last decade and a half behind bars, many of those years awaiting execution.

The former defendants in what became known as the “Leping 5.24 murder case” were convicted of murder, rape, and robbery and sentenced to death by the Jingdezhen Intermediate People’s Court. That verdict was overturned on appeal, and the case was sent back for retrial after the defendants alleged that their confessions had been obtained through torture. Despite the continued insistence that torture had taken place and inconsistencies in the defendants’ testimonies, death sentences were handed down again in 2004, only to be suspended by a two-year reprieve on appeal.

In 2011, the allegations of torture gained more credibility after a suspect in another criminal case confessed to having committed the crimes for which the four men had been convicted. Despite this confession, it still took officials another four years to reopen the case, and even then the defendants’ lawyers were prevented from accessing necessary case files. Meanwhile, lawyers and family members held a weeklong demonstration outside the provincial court as well as nightly candlelight vigils.

The lawyers’ protest took place amidst an ongoing crackdown of rights lawyers in China, who employ pressure tactics such as mobilizing public opinion to seek justice. In fact, an activist named Wu Gan—known more commonly by his online name, “Super Vulgar Butcher”—was detained in connection with the courthouse protest and now awaits trial on charges of subversion in Tianjin.

Neither the lawyers’ protest nor the charges facing Wu Gan feature in a recent opinion piece in The Beijing News, in which lawyer Ruan Ziwen focuses on the justice still due these four men following their release. Victims of earlier cases of wrongful conviction and even wrongful execution have received state compensation following their exoneration. Ruan makes it clear that compensation is not enough; accountability is also needed if there is to be any hope of changing the behavior of law enforcement officials and judicial personnel and preventing wrongful convictions.

The authorities in Jiangxi should be given credit for acknowledging past mistakes in the Leping case and righting the wrong that has been done. But it should not be forgotten that the four original defendants in the Leping case are free today largely because of the efforts of lawyers and others who continuously fought to challenge the conviction and demand justice. In China’s current legal environment, where questioning a court decision can be construed as a challenge to judicial authority or even be considered a politically subversive act, it remains to be seen how many lawyers will continue to stand up on behalf of defendants like those in the Leping case.


It is Right and Proper for Victims of Injustice to File Complaints

Ruan Ziwen
The Beijing News, January 17, 2017

According to The Beijing Times social media channel, the five men wrongfully convicted in the "Leping 5.24 Murder Case”, together with their lawyers, have filed a criminal complaint with the Jiangxi Procuratorate, accusing police and procurators of “intentional homicide” and the Jiangxi High Court judge, who originally handed down the sentence against Huang Zhiqiang and three other defendants of “bending the law for personal interest”. The complainants have requested that their allegations be submitted to the Supreme People’s Procuratorate and that provincial law enforcement and judicial authorities completely recuse themselves from the case.

The difficult step, taken by these victims of wrongful conviction with the help of lawyers, to file these criminal complaints has immeasurable practical significance and social impact.

The past few years have seen the reversal of a number of wrongful conviction cases with major national influence. Not too long ago, the defendants in the Leping case were acquitted by the Jiangxi High Court. According to the provisions of the State Compensation Law, victims of wrongful conviction may seek compensation ranging from a few million yuan to tens of millions. In cases ranging from the Huugjilt case, to the case of the uncle and nephew surnamed Zhang, to the Nie Shubin case, the victims or their immediate family members all applied for state compensation, however none filed criminal complaints against those responsible for the case.

From a technical legal perspective, there are challenges involving discovery and making a legal case that must be overcome in order to prove criminal wrongdoing by someone carrying out their duties in the handling of a case. From a practical legal standpoint, without institutional safeguards or effective oversight mechanisms, it is also difficult to get law enforcement or judicial bodies to bring “their own” to justice. It is therefore not hard to understand the sense of helplessness that makes victims of injustice unwilling to initiate complaint procedures.

Despite this environment, the victims of injustice in the Leping case were still willing to file their complaints. The key significance of their action is that they are claiming their inherent rights. At the present, when a country governed by laws [is advocated], there is long-lasting value in using an individual case such as this to force law-enforcement personnel and judicial authorities to investigate, prosecute, and adjudicate in accordance with the law.

If we take a moment to sift through the wrongful convictions that have been overturned in the past few years, we find that nearly all of them involved coercion of confessions through torture, insufficient evidence, or unclear facts. Nevertheless, contrary to the rule of law, the investigation, prosecution, and adjudication processes all managed to produce a guilty verdict and force victims to either die an unjust death or spend years in prison for crimes they didn’t commit. It’s hard to chalk this up simply to a lack of professional quality among those who handled the case; sometimes, the problem is that those handling the case perverted the course of justice.

Reasonably speaking, the exercise of the Leping victims’ rights is both justified and normal. In compliance with the law, the Jiang Xi legal authorities should grant them adequate protection and response.

Even though many wrongful convictions are connected to institutional problems, inadequacies of laws and regulations, or even human interventions and policies, these things cannot be used as excuses for legal officials to evade responsibility in handling cases. The legitimacy of how evidence is obtained, the proper finding of facts, and the proper application of the law have all been explicitly formulated in the provisions of both substantive and procedural law, even when we look at the legal provisions from 10 or 20 years ago.

It’s possible that some of the people responsible for these miscarriages of justice lacked respect in the law or lacked faith in the idea of in judicial fairness. If that’s the case, the malicious intent behind their deliberate actions and perversions of the law will be relatively evident.

No matter what the outcome will be, the fact that the victims of the Leping wrongful conviction case have filed their complaint ought to get the attention of those who design the legal system. It also ought to alert those in the judicial and law-enforcement agencies of the need, in the future operation of the legal system, to reduce and eliminate wrongful convictions and give due legal punishment to those legal personnel responsible for making those wrongful convictions.

Thursday, January 26, 2017

Juvenile Justice Trends in the US Could Provide Lessons for China’s Courts (Part 2 of 2)

Transfer Rules from Juvenile to Criminal Court

Despite the establishment of more than 3,000 juvenile tribunals and an Office of the Juvenile Court by the Supreme People's Court there remains to be no unified system of juvenile courts in China. The transfer of serious cases involving juveniles to criminal courts in the US might become an issue in China if a more robust Chinese juvenile justice system arises to address the recent spate of violence among very young offenders. In the early 2000s, US juvenile judges began re-establishing their authority to decide whether to transfer youth in conflict with the law from juvenile court to the criminal court and corrections system. Transfer and waiver of juvenile court jurisdiction is frequently used in cases involving serious crimes by offenders aged 16 and younger.

The 1966 US Supreme Court opinion in Kent v. United States lists eight factors that a juvenile court should consider in determining whether to transfer a case. The factors include the seriousness of the offense, whether the crime was against person or property, the juvenile’s background, and likelihood of rehabilitation. However, in the decades immediately following the Kent decision many states enacted laws to bypass these factors, allowing prosecutors—instead of judges—to decide whether to transfer juveniles. (Some states even allow for automatic transfer.) The states that allow prosecutors instead of judges to file juvenile cases in criminal court, as of the end of 2011, are listed in Chart 2.

Chart 2. States Allowing Prosecutors to File Juvenile Cases in Criminal Court.

Chart source:NJJN

Several recent laws—many passed during the November elections—re-invigorate judges’ authority to make transfer decisions and rely on factors like those pronounced in Kent. In California, prosecutors were previously allowed to file juvenile cases directly in adult criminal court if they determined that the crime was not appropriate for the juvenile system. But in November, California voters approved Proposition 57, which eliminates direct filing and requires juvenile court judges to determine whether a juvenile will be tried as an adult. The California law also speeds up parole consideration for non-violent felons. In Nevada, new state laws provide that juvenile courts should have exclusive jurisdiction over anyone younger than 16 who is charged with serious crimes like attempted murder; previously, those youths would have been tried in criminal court.

Similar changes have also occurred in other parts of the country: at the age of 12, Paul Gingerich became the youngest person sentenced in adult court in Indiana history, sparking outrage from child welfare advocates. The outrage over Gingerich’s transfer to criminal court likely spurred legal changes that now allow Indiana judges to re-sentence juveniles previously transferred and sentenced to prison terms. With the population of juvenile girls rising, gender also might become a factor for judges to consider during transfer proceedings. As prison policy and practice were designed for adult men, juvenile girls present unique challenges to legal officials; girls in conflict with the law have historically disproportionately high rates of sexual abuse victimization, contributing to high rates of mental health problems. A recent report indicates that such girls have a high need for services but present a disproportionately low risk to the community.

Confidentiality of Juvenile Records and Court Proceedings

Reducing juvenile recidivism also relies on ensuring youthful offender’s successful reintegration into society, whether by protecting their opportunities to complete education or obtain access to employment. In achieving these goals, it is critical that judicial authorities enhance the confidentiality of court hearings and expunge juvenile court records, however the practice of these two procedures vary among American states.

Chart 3. Confidentiality of Juvenile Court Hearings, By State (2011)

Chart Source: NJJN

The earliest American juvenile courts held public hearings, but by the 1950s, many states restricted public access and media reporting on juvenile court proceedings to prevent juvenile stigma. However in late 1980s, many juvenile courts re-opened their doors to the public amid concerns about rising juvenile crime rates (see Chart 3, above). However, some states continue to close court hearings when a defendant is below a certain age, properly recognizing that confidentiality is an even greater concern when the suspect is very young.

Chart 4: The Sealing of Juvenile Court Records, By State (2011)

Chart Source: NJJN

Regarding juvenile record sealing, 31 states mandate that juvenile court records cannot be sealed, expunged, or deleted if the court finds that the offender has subsequently been convicted of a felony, misdemeanor, or statutorily-specified juvenile offense (see Chart 4, above). Despite these restrictions, 33 states allow record sealing or expungement in some form, and since 2012, several states have enacted laws to allow juveniles to petition for expungement of records.

Dui Hua has noted in previous collaboration with China’s courts that juvenile offenses can follow a person through life, leaving a lasting impact both on the young offender and on the broader society that collectively bears the repercussions of recidivism. Further policy changes allowing for the appropriate closing of juvenile court proceedings to the public and for juvenile record sealing could prove valuable to US and Chinese policymakers.


Recent trends in US juvenile justice recognize that American juvenile policy in the 1980s and 1990s was based on several mistaken assumptions about the nature of the adolescent brain and the effectiveness of harsh punishment against juveniles, especially those aged 16 and younger. Current Chinese juvenile court reformers would do well to avoid the same mistakes made in the US during the 1980s and 1990s.

An important first step would be to acknowledge, in light of recent advancements in adolescent neuroscience, that children are not simply small adults. As retired California Superior Court Judge Leonard Edwards writes, progressive juvenile justice reform requires expanding the role of the juvenile judge, who possesses higher quality and quantity of information relative to police or prosecutors. Hence, judges are in “the best position to determine whether a child should be prosecuted as an adult or retained in juvenile court.” Since the beginning of the 2000s, American judges have dramatically increased the implementation of non-custodial measures, helping to limit the transfer of juvenile offenders from juvenile to criminal court.

From this perspective, limiting juvenile incarceration is a “win-win” for those seeking more humane treatments for juveniles as well as for those most interested in lowering the costs of government programs. The cost effectiveness of reducing juvenile incarceration coupled with a deeper understanding of the adolescent brain and the community-based interventions that elicit favorable responses from juveniles should lead to fewer young people housed in state institutions. Conversely, if juvenile recidivism is allowed to increase, harmful effects will only be more severe as the chances of criminal behavior multiply into adulthood.

The juvenile court policies discussed here are but a small sample of a complex and extensive topic. Please investigate the links above to explore other important juvenile policy issues including: access to counsel, conditions of confinement, and status offenses like truancy—the proper handling of which are critical to the long-term reduction of crime and societal tension.

Wednesday, January 25, 2017

Juvenile Justice Trends in the US Could Provide Lessons for China’s Courts (Part 1 of 2)

A young offender confined in the US. Image credit: Juvenile in Justice Project.

Amid high-profile reports of violence among children under the age of 14 in China, voices from several corners of Chinese society have called to lower the age of criminal responsibility. However, some Chinese legal experts remain opposed to adopting a more punitive juvenile justice regime and a look into the recent history of the US juvenile justice system supports a more cautious approach. Since 2000, legislatures throughout the United States have been scrambling to correct excessive punishments imposed upon young offenders in the 1980s and 1990s. Since 2000, several states have enhanced the authority of their juvenile courts, and by 2015, 41 states had raised to 17 the maximum age for transferring offenders to criminal court (often called “adult court”).

In China, we are seeing developments that mirror the turn the US took in the 1980s and 1990s against a rehabilitative and developmental approach to juvenile justice, likely also driven by an upsurge in media reportage of violent cases among the very young. By the mid-1990s, some experts infamously began referring to American juvenile offenders as “super-predators”; the number of incarcerated youth soared, states across the US lowered the minimum age to transfer juveniles to criminal court, imposed mandatory minimum sentences on juveniles, and even allowed for juveniles to face life without parole (which was ultimately reversed in 2012 by the US Supreme Court).

The more recent attempt in the US to reverse decades of excessive juvenile punishment could prove instructive for Chinese legal officials contemplating various reform “models” for their country’s juvenile justice tribunals. The following sections discuss three major categories of state-level court reforms designed to rein in costly and unnecessary juvenile incarceration in the US: (1) implementing non-custodial measures for juvenile offenders; (2) increasing judicial authority over the transfer of juveniles from juvenile court to criminal court; and (3) enhancing the confidentiality of juvenile records and court proceedings.

Non-Custodial Alternatives to Juvenile Incarceration

Perhaps the most important method of limiting juvenile incarceration and recidivism put forth is the implementation of non-custodial alternatives to incarceration. The recent proliferation of non-custodial measures in the US is in part the result of scientific advancements in the fields of adolescent neurology and developmental psychology that were unknown to policymakers in the 1990s. The findings indicate that the prefrontal cortex of the adolescent brain is not fully developed, inhibiting their decision-making abilities and mitigating the culpability of very young juvenile offenders. Chart 1 lists nine “Comeback States,” as identified by the National Juvenile Justice Network, which since 2001 have been particularly successful in implementing non-custodial alternatives for juveniles in response to new findings in neuroscience.

Chart 1. Changes in Juvenile Confinement in American “Comeback States” Since 2001.

“Comeback States” that have seen dramatic declines in juvenile incarceration.Source: NJJN

In these “comeback” states, scientific advancements have spurred changes aimed at rehabilitating juvenile offenders, especially those under 16, while also reducing the risk to society with lowered juvenile recidivism rates. For example, in Ohio, juvenile court judges can sentence offenders to non-custodial measures including “supervised release programs…home detention, electronic monitoring, day and evening reporting centers, and local treatment programs.” In Connecticut, a 2004 law, requires officials to create a continuum of community-based services, including substance abuse and mental health treatment, that juvenile courts can implement to address problems facing young offenders without resorting to incarceration. In California a 2014 law ensures greater access and usage of non-custodial alternatives by requiring juvenile court judges to consider factors including age and mental health status before deciding whether to transfer a juvenile offender to the criminal court system.

Advancements in scientific research have also helped limit harsh penalties such as solitary confinement on juvenile offenders. Because of its proven to be severe effects on the very young, solitary confinement should not be used for punishment of young offenders, and non-punitive solitary confinement should only be used when a youth is engaging in behavior that creates an imminent risk of serious harm.

With more than 65 percent of the 2 million youth arrested each year in the US suffering from some form of mental health disorder, the use of mental health rehabilitation as a non-custodial measure has become increasingly widespread. For example, in 2005, the state of Washington expanded mental health services to address treatment gaps among juvenile offenders and a Colorado law now allows juvenile judges to impose suspended sentences to allow rehabilitation and treatment for juveniles with developmental disabilities or mental illness. Alongside mental health issues, the intersection of gender is a worthy consideration in developing a juvenile justice system that emphasizes non-custodial measures. Juvenile girls tend to be at greater risk in developing serious mental health problems, as noted in a 2012 Department of Justice report stating that adolescent “girls are more likely than boys to attempt suicide and to self-mutilate.” Further, juvenile girls are also less likely to pose a significant public safety risk than their male counterparts and “would be far better served in nonresidential treatment facilities close to their own homes." The fact girls are more likely to suffer from serious mental health issues while also posing a significantly lower public safety risk suggest gender might be another factor for juvenile judges to consider in deciding on penalties for young offenders.

Evidence-based measures have provided juvenile court judges with several community-based intervention options to reduce incarceration rates, without increasing public expenditure. American states are finding new ways to fund community-based alternatives. In Georgia, for instance, the ability of courts to impose non-custodial sanctions has been supported by an incentive grant program to distribute federal and state funding to counties serving the state’s at-risk youth. Provisions in Ohio and other states save scarce public funds by shortening juvenile detention time.

Wednesday, December 21, 2016

Bullying Ignites Calls to Lower Age of Criminal Responsibility in China

Juvenile Prison Library. Image credit: Xin Hua Sichuan.

In recent months, we have seen weekly, sometimes daily, media coverage of violent bullying amongst children in Chinese schools. Prompted by such reports, the Ministry of Education, Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, and five other central party and government bodies issued a guiding opinion last month on the prevention of school bullying and violence among primary and secondary school students.

With disturbing and viral videos of such incidents circulating throughout Chinese social media and lurid media reports of deadly assaults and other crimes committed by children, there is a growing sense of moral panic about the rise in juvenile crime and the inadequacy of existing laws and institutions to handle the problem.

Public sentiment on the issue of juvenile crime spiked last August, following a pair of news reports that attracted widespread attention. In one, a 13-year-old Guangxi boy was sentenced to three years of “custody and education” after brutally killing three young children with rocks and a knife. In another, a 13-year-old boy from Sichuan was released into the custody of his father after using gasoline to set a young teacher on fire in order to steal her iPhone.

Stories like these have garnered vocal support for lowering the age of criminal responsibility, currently set at 14 years old, for violent and other serious crimes. One online poll showed 85 percent of respondents agreeing that the age limit should be lowered. Some lawyers and other commentators have taken up the issue, calling for immediate legislative reform.

Commentators cite societal and cultural factors—such as decreased parental supervision and excessive exposure to violent video games and movies—as the major contributing factors to the apparent rise in juvenile crime. As such they see stricter legal sanctions as the only way to control the rise and criticize recent reform trends towards non-custodial measures and diversion from punishment as only further contributing to juvenile delinquency.

Despite popular pressure, there are signs of official support for reforms from Chinese legal experts who are skeptical about adopting a more punitive juvenile justice regime. Last month, People’s Daily, the official Communist Party’s newspaper, published an essay by Beijing Normal University Law School Professor Song Yinghui warning that lowering the age of criminal responsibility ran counter to the evidence-based, “scientific” approach that has guided the development of juvenile justice in China in recent years. Song advocates for treating the root social causes of juvenile delinquency, rather than turning to a more punitive system that seemingly promises quick fixes and the “instant gratification” of seeing more children tried as adults.

The gradual pace of juvenile justice reform and the nature of sensational and viral media coverage on juvenile crime will all but guarantee that the debate over lowering the age of criminal responsibility will continue for some time to come.

Looking Rationally at the Age of Criminal Responsibility in China

Song Yinghui

People’s Daily, November 16, 2016

In recent years, there has been report after report involving incidents of school violence and socially harmful, terrible acts carried out by young juveniles. Some advocate lowering the age of criminal responsibility, but this proposal lacks empirical data and scientific basis. Such a suggestion could potentially make things worse, rather than better. We should take an objective and rational approach to the problem of juvenile criminal behavior and should not have scientific and professional judgements influenced by extreme individual cases or public opinion.

Chinese legal provisions on the age of criminal responsibility are in line with global trends of criminal law and correspond with circumstances in our country. At the present time, a majority of countries set the age of criminal responsibility at 14 years old or above. Although some countries set a lower age limit, these countries all have separate legal provisions and judicial processes for juvenile crime. In the vast majority of cases in these countries, minors who have committed harmful acts are handled through non-criminal or non-punitive interventions; only a small number of juveniles are convicted and punished using the adult criminal procedure.

Ever since China’s first modern criminal code, the Great Qing New Criminal Law of 1911, we have gradually adopted a dual standard for the age of criminal responsibility at 14 years [Ed.: for certain serious offenses] and 16 years [Ed.: for all other offenses]. This assessment has taken a number of factors into consideration, including China’s historical and cultural traditions, geographical and climatic conditions, criminal justice policies, child development, amount of time spent in school, and social experience. This standard has endured the test of time and is in line with the physical and mental characteristics of juveniles and the patterns regarding the occurrence and development of crime.

The argument in favor of lowering the age of criminal responsibility lacks support from empirical data and risks becoming victim to the fallacious idea that as humans become more civilized the age of criminal responsibility ought to be lowered.

To this point in time, I have seen no systematic set of statistics or research on harmful behavior by minors under the age of 14, and there is no uniform system for reporting acts of school violence. Therefore, we shouldn’t simply make sweeping generalizations from extreme, terrible incidents exposed by the media and conclude that that the number of criminal acts by minors under the age of 14 is rising dramatically. If we were to use these reports as the empirical basis for amending the universal legal standard and thereby lowering the age of criminal responsibility, it would violate the spirit of scientific and cautious legislation.

Today’s juveniles are maturing more quickly than their age-peers of 30 years ago, but the social environment in which they are living has also undergone tremendous change. There has been no shortening of the growth period in which they learn, practice, and engage in trial and error, and their mental states are not maturing any earlier. In fact, when young juveniles commit harmful acts, it demonstrates that they do not yet possess the ability to discern situations or control themselves. Otherwise, as civilization progressively advances the age of criminal responsibility would get lower and lower.

Lowering the age of criminal responsibility does nothing to resolve the problems that lead young juveniles to commit harmful acts. A great deal of empirical evidence and research shows that the root of illegal acts by juveniles are problems with families or guardians, education, and social governance. For example, most of the detainees in juvenile detention centers come from broken homes, or are "left behind" children with precarious living situations, marked by idleness, homelessness, and upbringings surrounded by the negative influences of entertainment venues like Internet cafés, bars, or karaoke parlors.

Simply punishing juveniles is not only ineffective at preventing juvenile crime; it actually is a way of avoiding problems and shifting responsibility. Sentencing juveniles to prison not only leads to cross-infection from others; it also does nothing to help repair social relations. Once extremely malleable juveniles are labeled as criminals, it is easy for them to develop a mentality of hatred and even become antisocial and prone to re-offend. Research in psychology, sociology, psychiatry, and behavioral science all shows that juvenile psychology is highly susceptible and volatile. If provided appropriate education and intervention, the vast majority of problematic juvenile behavior or psychological deviations can be corrected.

When we maximize the interests of children, we are also maximizing the interests of society. Only by enabling juveniles who have committed socially harmful acts to return to society do we truly protect society.

The most urgent task is to establish a system of early intervention separate from the adult system that distinguishes between minor and serious harmful behaviors; to use educational preventative measures, targeted to address the problems facing juveniles; and to change the current situation where we “lock them up and forget them.” At the same time, we should immediately improve the legal system and establish measures that strengthen family monitoring. We need to strengthen responsibility of schools and educators and improve mechanisms to prevent and manage school violence. We should better regulate harmful social environments that have a negative influence on the education and daily life of juveniles. And we must increase government assistance and support for juveniles and their families who live in extreme poverty.

In other words, we must solve the problem at its root. This is the only true path to responding to and preventing illegal criminal acts by juveniles.

(Song Yinghui is Director of the Juvenile Justice Expert Committee of the Criminal Procedure Law Research Association, China Law Society)

Tuesday, December 13, 2016

China Tightens Clemency Rules for Political Prisoners

Supreme People's Court of China, Beijing. Image credit:

On November 14th the Supreme People’s Court (SPC) published China’s most recent interpretation of the Criminal Law’s articles on sentence reduction and parole. The regulations, which take effect on January 1, 2017, will tighten rules for granting reduced sentences and parole to prisoners serving time for endangering state security (ESS) and other serious crimes including corruption. [1] They reflect a 2014 guiding opinion (指导意见) from the Communist Party’s Political and Legal Commission that mandated tougher rules for “three types” of crimes including bribery, financial fraud and organized crime—and they are considerably more detailed than the Court’s previous interpretation on sentence reduction and parole, issued in 2012.

For decades, the SPC has issued regulations calling for “strict handling” of clemency for prisoners serving sentences for counterrevolution and (after 1997) ESS, a category of crimes that includes subversion, inciting subversion, splittism, and inciting splittism. However, until these latest regulations were issued, the court hadn’t defined “strict handling”, leaving it up to the provinces to decide what measures to apply to ESS prisoners in each jurisdiction. [2]

Under the new regulations, “ordinary prisoners” sentenced to life in prison must wait two years before the sentence is commuted to a fixed term sentence of no less than 19 years. Thereafter, each ensuing sentence reduction can occur at a minimum interval of two years, and the length of the reduction is based on the prisoner’s behavior and whether the prisoner performs “meritorious service.” [3]

The new regulations mandate that ESS prisoners like Ilham Tohti and Wang Bingzhang (王炳章) and other prisoners serving life sentences for serious crimes must wait a minimum of three years, rather than two, before the sentence is commuted to a term of no less than 20 years (as opposed to 19 for ordinary inmates). While each ensuing sentence reduction can occur at a minimum of a two-year interval, reductions for ESS prisoners cannot exceed one year. In the best-case scenario, if Ilham Tohti’s life sentence were commuted to a 20-year fixed term sentence in January 2017, it would be 2030 before his sentence would expire, and that would be only if all regulatory requirements for subsequent sentence reductions had been satisfied.

Similarly, prisoners serving fixed term sentences of more than ten years under the new regulations are treated differently according to whether the crime is an ordinary crime or falls under one of the categories of serious crime (which includes ESS) as specified in the SPC regulations. Thus, an ordinary prisoner serving a 12-year sentence for robbery must wait a minimum of two years before being eligible for his or her first sentence reduction, and thereafter must wait at least eighteen months before being considered for subsequent reductions. The length of the reductions is largely at the discretion of the prison authorities, but cannot exceed two years.

By contrast, while a prisoner serving a 12-year sentence for subversion, an ESS crime, must wait at least two years before the first sentence reduction (which is the same for ordinary prisoners) thereafter, he or she must wait more than eighteen months before being considered for a sentence reduction, and the sentence reduction cannot exceed one year.

Three points are worth bearing in mind:

  1. The new regulations apply to everyone currently serving prison terms; in other words, existing sentences are not “grandfathered.” Dui Hua has documented many cases of prisoners serving long sentences for counterrevolution and endangering state security who have received generous sentence reductions that released them from prison many years before the expiration of their original sentences. (Hong Kong journalist Xi Yang , for example, served less than four years of a 12-year sentence for trafficking in state secrets.) The new regulations apply to prisoners whether their sentences were handed down before January 1, 2017 or after. Prior rules and practices will no longer apply.

  2. Provincial prison authorities will be able to impose stricter restrictions than those in the SPC regulations, but they may not impose laxer restrictions.

  3. Medical parole is not covered by the new regulations. Prisoners with serious illnesses can be released at any time with the approval of prison authorities and, for prominent political prisoners, approval by the Ministry of Justice in Beijing. (ESS prisoners who perform meritorious service can be granted clemency, but Dui Hua is not aware of a single example of an ESS prisoner getting a sentence reduction or parole in this manner.) Accordingly, as it has been for many years, medical parole remains the best hope for political prisoners seeking early release from prison.

1. For sentences up to ten-years, serious crimes include graft; undermining financial order and committing security fraud; organizing, leading, participating in, harboring, or colluding with organized crime; endangering state security; terrorism; serious drug-related crimes; recidivism; refusing to fulfill financial judgment. For sentences of ten-years or more, serious crimes include the above, and murder, rape, robbery, kidnapping, arson, causing an explosion, releasing harmful materials, and organizing violent crimes.   Return to Article

2. In the absence of a national standard as to what "strict handling" means, local authorities have been given broad discretion of interpretation and implementation. In December 2003, the Shanghai High People’s Court issued provisional rules stipulating that a sentence reduction for an ESS prisoner is normally up to one year shorter than that for other prisoners who satisfied the same conditions. The rules also stated that there must be an additional delay of one year before sentence reduction when a prisoner was eligible for “a normal commutation to a 20-year fixed-term sentence." In 2009, the Yunnan Prison Management Bureau announced that sentence reductions for ESS prisoners would be three to six months shorter than those for other inmates under satisfying the same conditions. Restrictions on parole for ESS prisoners are also in force in other provinces and municipalities. In January 2005, Beijing issued a decision that required instructions from higher organs before parole can be granted to ESS prisoners. In the same year, Shandong issued a similar provisional notice that stated “criminals who endanger state security… are normally not to be granted parole.”    Return to Article

3. The regulations define meritorious service as 1. Preventing others from committing crimes; 2. Reporting and exposing criminal activities inside or outside prison, or providing important clues for solving a case, which are later verified as being true; 3. Assisting the judicial organs in arresting other criminal suspects; 4. Making outstanding achievements in technological innovation in production and scientific research; 5. Actively resisting natural disasters or preventing major accidents; 6. Making major contributions to the state or society.   Return to Article

Wednesday, November 30, 2016

Is Life Without Parole a Signal of China's Will to Reduce Executions?

High ranking officials Bai Enpei (left) and Wei Pengyuan (right) sentenced to life without parole for extreme corruption charges. Image credit: Comm News and Caixin.

Former high-ranking officials Bai Enpei and Wei Pengyuan have become the first individuals in China sentenced to life in prison without the possibility of a sentence reduction or parole (“life without parole,” or LWOP). The sentences for Bai and Wei were made possible by last year’s amendments to the PRC Criminal Law, which included a new provision that authorizes judges to issue LWOP along with suspended death sentences in extremely serious corruption cases.

Before these cases, it had become common in China for high-ranking officials to receive sentence commutations after their suspended death sentences, effectively allowing for release on parole several years later. The judgments for Bai and Wei, however, state explicitly that after a two-year reprieve from their death sentences, they must begin serving LWOP sentences.

On October 9, 2016, the Anyang City Intermediate People’s Court in Henan province found that Bai abused his posts and illegally amassed more than RMB 247 million yuan (approximately USD $37 million) in assets. (Bai had previously served as Party Secretary in Yunnan and Qinghai provinces and was most recently a Vice Chair of the National People’s Congress Environment and Resources Protection Committee.) A week later, the Baoding City Intermediate Court in Hebei province similarly found that Wei kept more than RMB 200 million yuan (approximately USD $30 million) at his home, corroborating suspicions that Wei received bribes to approve coal projects.

Bribery charges in excess of RMB 3 million yuan trigger a maximum penalty of death, but other defendants accused of receiving millions more in bribes have still received sentences that leave open the possibility of future release (e.g., Zhou Yongkang and Liu Zhijun). Bai and Wei have thus become the first “tigers” ensnared in Xi Jinping’s anti-corruption campaign to receive sentences mandating that they die behind bars.

Observers Question Legality of New Life Without Parole Sentences

Since the sentences of Bai and Wei were reported, some informed observers have questioned whether the courts properly applied the law, with attorney and microblogger Chen Youxi emerging on social media as a leading critic. When the Criminal Law was amended last year, Dui Hua noted that Article 383—which covers official corruption—authorizes courts to simultaneously pronounce sentences of LWOP and death with two-year reprieve during initial judgment (as opposed to courts issuing LWOP decisions after completion of the two-year period of reprieve). Consistent with Article 383, the courts in the cases of Bai and Wei both pronounced the LWOP sentences at the time of judgment.

Attorney Chen acknowledges that Article 383 authorizes courts to pronounce LWOP sentences, but finds that the Criminal Law only allows the court to amend a suspended death sentence after the defendant successfully completes the period of reprieve. Legally speaking, completing the death penalty suspension is not a foregone conclusion—for instance, the defendant must admit guilt and no new crimes can be discovered during the period of reprieve.

Chen claims that issuing LWOP as a condition of a suspended death sentence assumes that the defendant will successfully complete the reprieve period. According to Chen, a broader analysis of the legislative and regulatory framework of the Criminal Law indicates that the courts’ actions and Article 383 violate the legal logic relevant to suspended sentences.

Is Life Without Parole a Step Towards Abolishing the Death Penalty for Corrupt Officials and the General Public Alike?

Despite Attorney Chen’s objections, the sentences given to Bai and Wei are likely to be upheld, as they come in the context of China’s broader effort to combat corruption and to place serious limits on the death penalty. Since 2011, 22 non-violent crimes have been removed from the list of capital offences. Beijing Normal University Criminal Law Institute Professor Yuan Bin believes that capital punishment is a source of tension between the legal system and Chinese society: on the one hand, corruption is primarily a non-violent offense that does not directly threaten lives, and so the death penalty seems disproportionate; on the other, there is strong public support for harsh punishment of corrupt officials, which suggests that efforts to abolish the death penalty for offenses such as bribery would meet stiff public resistance.

Further complicating matters, despite public support for harsh punishment, the current trend in sentencing is against executing corrupt officials. Though three high-ranking officials were executed in 2011 for taking bribes, since 2012, when Xi Jinping came to power and launched his anti-corruption crackdown, no high-ranking officials charged with accepting bribes have been executed.

The June 2013 sentencing of Liu Zhijun is seen by many as a turning point towards leniency for corrupt officials. Though he was found guilty of taking bribes totaling more than RMB 64 million yuan (more than USD $10 million), instead of immediate execution he received a suspended death sentence. According to Southern Weekend’s count, among high-ranking officials criminally charged since the 18th Party Congress, six have received life in prison with no imposed restrictions on the possibility of parole (including Zhou Yongkong and Ling Jihua) and 21 have received fixed prison terms.

At least some lawyers and judges have suggested that the trend against executions in official corruption cases might lead to abolition of the death penalty altogether. A “highly experienced” judge commented on Chen Youxi’s microblog that eliminating capital punishment for official corruption might provide a model for total abolishment of the death penalty. The judge noted that if the death penalty was phased out, China would join more than 100 nations that have legally abolished the death penalty or have done so in practice. Most likely, even if China eliminated executions in practice, the death penalty would almost certainly remain on the books as a punishment option in extreme cases.

Often overshadowed by debates over the death penalty, life imprisonment without parole is also a controversial international topic. The UN General Assembly, for instance, since 2006 has regularly called for immediate abrogation of juvenile LWOP sentences in all countries. From 2006-2008, the US cast the lone dissenting vote to this resolution, but reversed its stance in 2009. The US Supreme Court then found in the 2012 case Miller v. Alabama that the Eighth Amendment of the US Constitution “forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders.”

In the aftermath of the Miller case, Dui Hua also noted LWOP for adult offenders runs counter to the spirit of international conventions, including those to which the US is a party. The International Covenant on Civil and Political Rights (ICCPR) states that the aim of prison systems “shall be [prisoner] reformation and social rehabilitation”—a futile goal if an eventual re-entry to society is not within reach. Nonetheless, LWOP sentences are common in the US for violent crimes like homicide, and according to the Sentencing Project, there are more than 49,000 people in American prisons serving sentences of life without the possibility of parole (as of 2012). By comparison, lifetime prison sentences are not an option in many countries across Latin America, Europe, and Asia.

In China, the goal of deterring corruption appears to outweigh the controversy over imposing LWOP for non-violent crimes. Professor Ruan Qilin of the China Politics and Law University Criminal Justice Institute suggests that LWOP sentences are appropriate given China’s fight against corruption and the rarity of executions for officials convicted of corruption. Instead of executing corrupt officials, LWOP preserves a deterrence function, while at the same time, citizens fed up with corruption are “comforted and placated” (抚慰和鼓舞). Professor Ruan claims that LWOP has a greater deterrent effect than sentencing practices in other countries, specifically questioning those in Spain, where even violent terrorists are regularly released early despite initial prison sentences hundreds of years long.

Phasing out the Death Penalty: Welcome to the Life Without Parole Era?

It remains to be seen whether the sentencing treatment of Bai and Wei is a harbinger of change. Will the Chinese government note public reaction to the use of LWOP in corruption cases and adjust accordingly? Even if the public is generally amenable to LWOP for corrupt officials, societal tensions will still arise in response to wrongful executions of ordinary citizens (e.g., the recent investigation into officials involved in the wrongful conviction of 18-year-old Huugjilt in 1996). The knowledge that, in cases of corruption, high-ranking political officials are largely exempt from capital punishment (and therefore from the possibility of wrongful execution), while ordinary citizens have no such protection, will likely not sit well with the general public. Should these circumstances swing public opinion against general use of the death penalty, future amendments to the Criminal Law might include LWOP as a possible replacement in an array of criminal offenses.