Thursday, February 24, 2011

Chinese Courts Experiment with Expunging Criminal Records for Juvenile Offenders

Juvenile tribunal, Qingdao Intermediate People's Court
A criminal record can carry with it a lifelong stigma—no matter how minor the offense or at what age it was committed. For this reason, the criminal records of juveniles are routinely sealed in many countries, including the United States. In two recent juvenile justice exchanges with the Supreme People’s Court organized by Dui Hua, experts discussed the prospect of similar measures in China. Earlier this month the Beijing News published two articles reporting that Mentougou District, located in western Beijing, has launched a pilot program to selectively expunge criminal records of juveniles who have committed misdemeanors.

According to criteria adopted in Mentougou in October 2010, a record can be considered for expungement if, among several other factors, a juvenile has served a sentence of less than five years, has shown remorse, and has not re-offended. Applicants must stay out of legal trouble during a period of probation and assessment of their cases, when close review of the youth’s record culminates in a decision by a panel of judges.

Last fall, the Mentougou District People’s Court notified 153 offenders it had tried over the previous decade that they met the basic qualifications to have their records sealed.  More than 40 submitted applications to the court, and, from those, 13 were selected for evaluation. In the initial batch of decisions, the court approved the sealing of records in three cases, rejected one application, and suspended a decision on a fifth case pending additional evaluation.

Two summarized cases show how the court weighed post-criminal behavior in its decisions. One youth whose record was expunged had stolen a cell phone from a classmate during a robbery committed out of “boredom.” The court imposed a suspended sentence, and during the probation period he displayed good behavior and now expects to graduate from a vocational school. In another case, the court rejected the application of an offender who had “refused without reason” to take part in public-service work and resisted other probation measures imposed by a community corrections agency.

Conflicting legislation creates many obstacles for consistent and effective application of protections like expunging records. New provisions and practices often conflict with long-standing laws, which tend not to specify treatment of minors. The Juvenile Protection Law prohibits discrimination in work and education; however,other laws such as the Civil Servant Law limit employment opportunities in a number of professions, as well as the military, for those with criminal records, and the Criminal Law stipulates that records must be accurately disclosed in some situations.

In an interview, Judge Hu Yu, chief judge of juvenile cases in the Mentougou Court, explains the philosophy behind expunging records and practical challenges to making the process work. He states that the vast majority of juveniles who come before the court end up with relatively short sentences that can still end up affecting their prospects for education, employment, and even marriage. Judge Hu observes that the procedure for expunging records needs to be carefully explained when the court is questioned about a youth’s background, and that even expunged records will remain in a national system that authorities throughout China can access. This compels his court to simply recommend that local public security departments—and potential schools and employers—exercise good judgment if they encounter people with a juvenile crime background.

It is clear from the relatively few cases approved by the court that the court is exercising initial caution during the early phase of its pilot program. One challenge yet unsolved is how to deal with the “blank periods” that will appear on some individuals’ records when their time spent behind bars is removed from their records. Nevertheless, the courts in Mentougou District and other locations should be commended for taking positive, if gradual, steps to treat juvenile offenders according to their unique circumstances. But these strides can proceed best only if relevant laws are reformed in the interest of better protecting juveniles. When the benefits of such measures are seen, they should in turn help achieve a broader goal already set out for handling China’s youngest offenders: to combine leniency with punishment.

Tuesday, February 22, 2011

Chinese Government Appears to Halt Sentence Reductions for Political Prisoners

On February 9, a candid video of the blind “barefoot” lawyer Chen Guangcheng was released. Near the end of the hour-long video, which Chen secretly filmed under house arrest in his home village in Shandong Province, he relates that, while serving his 51-month sentence in Linyi Prison, he accumulated around 60 “points” for good behavior, which should have qualified him for a sentence reduction. The prison warden wrote to the provincial prison administration bureau about the reduction, and the prison administration bureau sought approval from the Shandong Justice Department, which in turn sent the application to the Ministry of Justice in Beijing. No action was taken on the application, and Chen served his entire sentence. Nonetheless, Chen says that the warden almost lost his job simply for making the request. (See Dui Hua’s excerpted translation of the transcript below.)

As with so much relating to Chen’s treatment at the hands of Chinese officials, the way the application for a sentence reduction was handled does not appear to conform with Chinese laws or Shandong provincial regulations. Article 78 of China’s Criminal Law provides that sentence reductions may be granted to prisoners who “conscientiously observe prison regulations, accept education and reform through labor, and show true repentance.” Recommendations for sentence reduction are made to courts by prison wardens; courts have almost always granted the applications until recently.

Parole can also be granted but it requires a determination by the court that the prisoner to be paroled no longer represents a threat to society. A separate system is in place for medical parole. Taken together, in recent years more than 25 percent of all Chinese prisoners have been granted sentence reduction, parole, or medical parole annually. In 2009, Chinese courts handled more than 500,000 applications for sentence reduction and parole. The country’s prison population stands at just under 2 million.

Regulations issued in 1991 stipulate that recidivists and prisoners serving sentences for counterrevolution or organizing and leading a major criminal gang are to be “strictly handled.” The regulations were updated in 1997 when counterrevolution was dropped from the criminal law and “endangering state security” (ESS) was added. Regulations issued by the central government do not define “strict handling,” leaving that task to provincial authorities and sometimes individual prisons.

Dui Hua has obtained regulations governing sentence reduction and parole from 11 provinces, and about half of these regulations name ESS prisoners among those singled out for additional measures, typically “strict handling.” In general strict handling takes two forms: 1) shorter lengths for sentence reductions and longer intervals between sentence reductions, and 2) imposition of additional levels of approval in the sentence reduction and parole application process.

Regulations in Shandong prohibit granting parole to ESS prisoners and name them among groups to be strictly handled for sentence reductions. But Chen—although widely seen in the West as a political prisoner—was not actually convicted of endangering state security, but of destruction of property and gathering a crowd to disrupt traffic. Regulations calling for strict handling of ESS prisoners should not, therefore, apply. Moreover, the Shandong regulations have provisions for disabled prisoners that should have actually increased the length of any sentence reduction granted to Chen. Why then was his request for sentence reduction instead subject to such strict handling?

The likely answer is that Chen is considered an “important prisoner” under a little-known regulation put out by the Ministry of Justice in 1995. The category of “important prisoners” is broadly defined, including party and government leaders and cadres, politicians and their relatives, well-known and influential figures from the fields of science and technology, art, athletics, public health and religion. The category also includes “ethnic splittists,” clergy of underground churches, prisoners who have been convicted of organizing illegal groups and putting out illegal publications (so-called “two illegals”), and a wide swath of political and religious prisoners whose cases, like Chen’s, have “significant domestic and international influence.” Changes to important prisoners’ conditions, including changes to their sentences, are to be reported to provincial bureaus, which in turn report them to the prison administration bureau of the Ministry of Justice.

Regardless of the statutory justification being used, the Chinese government has clamped down on granting political prisoners any form of clemency, including sentence reductions. On a recent trip to China, Dui Hua executive director John Kamm was told of a case of a prisoner serving a sentence for ESS. The prisoner had already been granted two sentence reductions and had less than a year remaining to serve on his sentence. The prison applied to the local court for a sentence reduction, but the application was turned down. Dui Hua has been unable to confirm any sentence reductions for political prisoners granted in the past year.

Given that the number of people imprisoned for ESS has increased sharply over the last three years—nearly 700 ESS trials were concluded in 2009 compared to roughly 300 in 2006—the Chinese government’s decision to stop granting sentence reductions and parole to political prisoners—those convicted of both ESS and non-ESS crimes like belonging to an “evil cult” or organizing protests that disrupt official business—has contributed to a surge in the number of people serving sentences for political offenses in the country’s prisons.


Excerpted Translation of Video Comments by Chen Guangcheng
January 5, 2011

再者,监狱里都是按这个分来减刑的。那么,也就是说一分假释9天,减刑6天。那么我的分到我出狱的时候接近60分。也就是说,不享受法律规定的残疾人可以 半年不需要分这样的优惠待遇,也就够减一年半的刑了。
The prison reduces sentences according to points. In this way [prisoners may receive] nine days of parole per point, [or] a six day sentence reduction per point. So, when I was to be released from prison I had close to 60 points. Even without receiving the special six-month sentence reduction that disabled individuals may receive by law even without points, [I was still eligible for] a year-and-a-half sentence reduction.

在我不断地向他们提出这样的要求之后,到了我快出狱的时候…………在一零年春节的时候,他们监狱里就打算给我报减刑。他们觉得一年半的分减半年的刑总该可 以吧。
After repeatedly making this request, when I was just about to be released—around the 2010 lunar new year—the prison [authorities] decided to recommend me for a sentence reduction. They figured that a six-month sentence reduction for a year and a half worth of points ought to be okay.

他们还不敢直接…………向法院提报。只得写出意见来,交给了省监狱管理局。据说,后来省监狱管理局将其交给了省司法局,省司法局又交给司法部。我不断地向 他们询问的时候,他们说没有任何的答复、上级一直没答复。他们也不敢报。
They didn't dare submit the recommendation directly to the court. They had to write their opinion and deliver it to the provincial prison administration bureau. The provincial prison administration delivered the [the recommendation] to the provincial justice bureau [sic] and the provincial justice bureau [sic] delivered it to the Ministry of Justice. When I asked them about this, they said that they had not received any reply, that their superiors never replied, so they did not dare to submit [the request to the court].

I told them that they should recommend me [directly to the court]. If they recommended me and the court did not approve it, that was the court's business and I would take it up with the court. If you don't give me a recommendation when it comes time—when I have all the points I need—if you don't recommend me, what kind of move is that?

They said it was no use. Even if they recommended me, the leadership wouldn't agree to it. That’s the response they gave me.

Later I heard through the grapevine that the warden was almost fired for recommending the sentence reduction.

Wednesday, February 2, 2011

Translation: How "Three Difficulties" of Criminal Defense Became "10 Difficulties"

In a previous post, Dui Hua translated an account by a Chinese criminal defense lawyer of the obstacles he encountered trying to get police to allow him to meet with a detained suspect. The challenges facing criminal defense lawyers in China have been documented again and again, and explain why many new Chinese lawyers are reluctant to pursue criminal defense work.

This subject was taken up in an article (translated below) included in a recent issue of Legal Weekly, a newspaper published under the auspices of the Ministry of Justice—which regulates the legal profession in China. In the article, interviews with several lawyers create a sense of shared and growing frustration on the part of criminal defense attorneys. Where lawyers identified the difficulties of getting access to suspects, obtaining case files, and carrying out discovery as the "three difficulties," observers see common challenges endemic in 10 different areas.

Some of these difficulties involve procedural barriers, but others pose risks to the pursuit of substantive justice. Of particular concern among the lawyers interviewed is the rarity with which Chinese courts accept defense pleas and find defendants innocent. When there is no real presumption of innocence and a decision to acquit could lead to repercussions for police and prosecutors, judges have little incentive to give serious consideration to defense pleas. The article warns that this threatens to stunt the growth of the criminal defense profession, not only because it saps the morale and confidence of lawyers but also because defendants may start to question whether there is really any point at all in trying to defend oneself in a Chinese court.


How "Three Difficulties" of Criminal Defense Became "10 Difficulties"

Difficulty Getting Defense Arguments Accepted
Stunts Growth of Criminal Defense Work

Sun Jibin
Legal Weekly
January 20, 2011

Research indicates that over the past decade, the rate of active representation by lawyers in criminal cases has been declining. The primary reasons for this are the great hazards and difficulties associated with criminal defense work.

How difficult is criminal defense work? The answer to this question is continually being revised, growing from the "three difficulties" of the past—the difficulty in meeting [with suspects], the difficulty in getting access to [the prosecution’s] case files, and the difficulty in carrying out investigation and collecting evidence—to five or even 10 "difficulties."

The newly-defined "seven difficulties" include: the difficulty of obtaining bail, the difficulty of getting witnesses to appear in court, the difficulty of getting a hearing for an appellate trial, the difficulty of pleading innocent, the difficulty of [participating in the process of] death penalty review, the difficulty of abolishing Article 306 of the Criminal Law, and the difficulty of proving that evidence was illegally obtained.

Of these new "seven difficulties," the difficulty of pleading innocent may pose the most insurmountable obstacle for criminal defense lawyers, and its root is the difficulty lawyers face in getting courts to accept their innocence-defense arguments.

When the infamous, wrongly-judged cases of Du Peiwu, She Xianglin, and Zhao Zuohai were exposed, people discovered that the defense lawyers in these cases had all made innocence pleas on behalf of the defendants but that, clearly, none of their defense arguments had been accepted.

Lawyers believe that, compared to difficulties involved in participating in the criminal justice process, the difficulty of getting courts to accept defense arguments is the most central hazard. It not only saps the confidence of lawyers who carry out criminal defense work, it also saps the confidence of defendants in engaging lawyers in criminal cases. This has a huge impact on a country's [ability to] develop rule of law in the area of criminal justice.

Criminal Defense Work Transformed into "Ten Big Difficulties"

In 2008, the revised Lawyers' Law took effect. Much hope was placed in this "advanced" law, which said lawyers could meet [suspects] if they provided the "three documents" [i.e., license to practice law, license of the law firm, and either power-of-attorney or legal-aid documents] and could get access to [the prosecution’s] case files once [the procuratorate's] investigation had begun—perhaps it could bring resolution to criminal defense lawyers' "three difficulties."

Two years later, people have realized that, while there has certainly been a breakthrough in some locations, in general there has not been a very big improvement.

Looking at [how things work] in practice, not only has there been no solution to the old problem of the original "three difficulties," other difficult problems related to defense work are emerging daily. Not long ago, at the "Fourth Annual Shangquan Criminal Defense Forum," the well-known Beijing defense attorney Xu Lanting first spoke of the "ten difficulties" in criminal defense work.

Besides the old "three difficulties" of meeting [with suspects], accessing [the prosecution's] case files, and conducting investigations and obtaining evidence, the new "seven difficulties" can be seen in: the difficulty of obtaining bail, the difficulty of getting witnesses to appear in court, the difficulty of getting a hearing for an appellate trial, the difficulty of pleading innocent, the difficulty of [participating in the process of] death penalty review, the difficulty of abolishing Article 306 of the Criminal Law, and the difficulty of proving that evidence was illegally obtained.

Lawyers can encounter difficulties at every part of the criminal litigation process. In an interview with Legal Weekly, Xu Lanting said that these new "seven difficulties" are increasingly becoming a new bottleneck restricting the development of criminal defense work in China. Witnesses—especially key witnesses—do not appear in court, hearings are not held in appellate proceedings, it is difficult for lawyers to participate effectively in the death penalty review process, and it is difficult to get illegal evidence excluded. These all directly contribute to lawyers having no way to carry out a full defense.

Beijing lawyer Jin Xuekong, who has many years of experience in criminal defense work, sees things similarly.

Jin told Legal Weekly that the primary reason lawyers request that a witness appear in court is because that witness can prove exculpatory facts or might change earlier statements alleging a crime. But because law enforcement organs proceed from [the principle that] the first impression is the strongest and prejudge the guilt of the defendant, anything that might change that preconception or challenge their judgment—especially the appearance of key witnesses in court—gets strictly limited.

According to [Article 187 of] China's Criminal Procedure Law, hearings should be held in criminal appellate trials as a matter of principle, with trials without hearings being the exception. But in practice, because it is much easier to try the case without hearings and because it creates less work, it has become common for appellate trials to be held without hearings and hearings have become the exception.

"In practice," said Jin Xuekong, "no matter how great the differences between the prosecution and defense over the facts or how many facts or pieces of evidence need further investigation in the appeal proceeding, as long as the judges believe that the original verdict should be upheld, it is hard for a lawyer’s request for a trial hearing to be accepted." [He added that] the level of difficulty in getting an appellate trial hearing is revealed by the way that many defendants and lawyers treat getting an appellate trial hearing as a major procedural victory. "If hearings are not held to try most appeals, it is bound to cause appellate trials to become a mere formality. If appellate trials cannot fulfill their oversight function over first-instance trials, there will be no way for defendants to seek remedies when their rights have not been protected."

And in the death penalty review phase [by the Supreme People’s Court], lawyers are presently only able to submit written defense arguments and arrange for meetings with judges to discuss their defense arguments. (Meetings by lawyers with judges are not available in every case.) Lawyers cannot meet with defendants or review [prosecutors'] case files. Xu Lanting points out that if a lawyer has not represented a defendant in stages prior to the death penalty review, there is no channel for them to understand the facts of the case even if they directly participate in defense during the death penalty review. What kind of defense is this?

Moreover, in the course of criminal defense work it is also very difficult to prove investigators' use of coercion, fraud, or inducements to obtain confessions.

Many lawyers report that in practice it is very hard to get courts to acknowledge coercion of confessions through torture, obviously [meaning] there is no way to get illegal evidence directly related to coerced confessions acknowledged [by the court] and excluded [from the trial]. More detailed provisions concerning the determination and exclusion of illegal evidence took effect on July 1, 2010, when the "Rules Concerning Questions about Exclusion of Illegal Evidence in Handling Criminal Cases" took effect. But since that time, even though investigators have testified in court in many cases, there have been nearly no instances in which illegal evidence has been found.

Difficulty Getting Defense Arguments Accepted Becomes Bottleneck

In the view of Jin Xuekong, regardless of whether there are three or 10 "difficulties" in criminal defense work, the core difficulty currently faced in defense is that of getting one’s defense opinions accepted, of which the difficulty of pleading innocent is the most notable example.

Jin points out that if one says that the difficulty in getting one's defense opinions accepted is a hazard on the substantive side [of criminal defense work], other defense difficulties such as the difficulty of meeting [with a suspect], the difficulty of getting access to the [prosecution's] case file, or the difficulty of getting a witness to appear in court can all be seen as hazards on the procedural side. A lawyer's [ability to] meet [with a suspect], access case files, carry out investigations and collect evidence, request witnesses to appear in court, get an appellate trial hearing, participate in the death penalty review procedure, and exclude illegal evidence are all means of [carrying out a] defense, whereas having one's defense opinions accepted is the ultimate goal.

"If defense arguments that should be accepted are not accepted," Jin Xuekong said in an interview with Legal Weekly, "lawyers and defendants will all lose faith in the criminal defense [process]. Lawyers won't be willing or dare to engage in criminal defense [work] and defendants won't be willing to hire a lawyer. The impact on criminal defense work will be total and long-lasting." [He went on to say that] the difficulty in getting defense arguments accepted could become the main bottleneck restricting the growth of criminal defense [work] in China.

Jin Xuekong points out several main reasons why it is so difficult to get defense arguments accepted: a longstanding approach to litigation that values fighting crime and places emphasis on the allegations, while de-valuing protection [of rights] and downplaying defense; the standard for determining mistaken cases and the responsibility system; and the professional knowledge and experience of those handling cases.

Approaches to litigation differ, and the same issue may result in different judgments and assessments. When law enforcement agencies and personnel—or even the public at large—place excessive emphasis on fighting crime and maintaining social stability, defendants' legal rights and lawyers' defense [efforts] will of course be restricted and it will become more difficult for lawyers to get their defense opinions accepted, becoming an obstacle to lawyers' criminal defense work that is difficult to surmount.

Jin Xuekong points out that the standard of proof in China's criminal procedure law is insufficiently complex and varied. For the stages of completing the investigation, indictment, and conviction, the standard of proof is always the existence of clear facts and evidence of a crime. Were an indicted defendant to be later found innocent, it would mean the indictment was in error. Even though the standard of proof for criminal detention and arrest is lower, when a defendant who has been placed under criminal detention and arrested is then later found innocent, there is no question that the [decisions] to place under criminal detention or arrest would be seen to have been made in error.

A mistakenly-decided case can affect the performance appraisal and promotion of the individuals handling the case and even the image and prestige of the court itself. Because of this, it has been difficult to implement the presumption of innocence and for lawyers' pleas of not guilty to succeed. If a court renders a verdict of not guilty, it will feel the pressure not only from victims and the public but from the public security organ and the procuratorate as well.

Documents show that over a period of many years, the national rate of acquittal in criminal cases has rarely broken above 0.2 percent. In other words, it is possible that a given court does not have a single case of acquittal in a particular year. Looking at media reports or annual court work reports, one sees that some courts go many years without even one acquittal. A judge can hear hundreds of cases over a period of several years without a single acquittal. And in so doing, these courts and judges are seen as advanced and models.

A criminal defense lawyer observed that the acquittal rate is a direct reflection of the current state of acceptance of defense opinions. If defense has no impact, how significant would greater procedural participation really be? If defense has no impact, what defendant would still be willing to engage a lawyer?