Thursday, September 17, 2015

China Adds Life Without Parole to Anti-Corruption Arsenal

The National People's Congress passes the ninth amendment to the Criminal Law in August. Credit:

Just before passing the ninth amendment to the Criminal Law late last month, the Standing Committee of China’s National People’s Congress inserted a new provision. Unlike many other new provisions, including those regarding defense lawyers and capital punishment, “cults,” and protestors, this provision was not subject to public consultation. In China’s non-democratic political system, public consultation is one of the few chances for citizens to provide input into the legislative and policymaking processes. It is intended, at least in part, to reinforce popular support for the outcome.

This last-minute provision altered Article 383, which covers the offenses of corruption and taking bribes. Effective November 1, the provision authorizes courts, in certain cases, to add a condition at the time of sentencing to require an individual to spend life in prison without possibility of sentence reduction or parole. The condition may only be applied in corruption cases where the defendant received a suspended death sentence and had that sentence commuted to life imprisonment after the two-year period of reprieve. If such a condition is imposed, the convicted individual will not be eligible for clemency that is ordinarily available under law—meaning that he or she will truly be required to spend the rest of his or her life in prison.

Paving the Way to Abolition

Chinese media has emphasized the significance of this provision as part of the sweeping anti-corruption campaign that has become a signature policy of Xi Jinping. Legal experts and commentators have widely praised the move for sending a strong signal that corruption will continue to be punished severely.

Others have noted that the introduction of life without possibility of release may have wider implications for abolishing the death penalty in China. Public attitudes toward the death penalty are complex and context-dependent, but continued popular support for capital punishment is one factor underlying the cautious and gradual approach that China’s leaders have adopted in reducing its use. Longstanding anger over rampant corruption has helped fuel public support and contributed to anxiety over efforts to strip the death penalty from many economic and non-violent offenses.

Part of this anxiety is rooted in the belief that the death penalty is the only punishment severe enough to deter the most serious crimes. However, in recent years, policies aimed at gradual abolition have led to fewer and fewer death sentences in corruption cases, making suspended death sentences the de facto maximum penalty. Through commutation and sentence reduction, individuals given suspended death sentences can potentially leave prison after serving terms not much longer than the maximum sentence of fixed-term imprisonment, or about 18 years. Some members of the public also worry that corrupt officials might be able to use connections or bribes to buy prison stays that are even shorter.

Given these factors, the introduction of life without parole in serious corruption cases has the potential to mitigate some of the public doubts about lenient punishment for corrupt officials. In so doing, it could also clear the way for China to eventually eliminate the death penalty for corruption. Advocates of death penalty reform anticipate that imprisoning corrupt officials for the rest of their lives would satisfy the public’s expectation of severe punishment. They also believe that in the future life without parole could be extended to other types of crime—including violent offenses.

Following a reform model often seen in China, legal reformers thus appear to have taken advantage of the current anti-corruption environment to experiment with a new kind of punishment and assess the prospects for further refinement and expansion based on practical experience.

A number of issues remain to be addressed. Zhuang Deshui, an anti-corruption expert at Peking University, points out that in order for the new measure to have its desired deterrent effect, courts must “dare” to use it. To this end, Professor Zhao Bingzhi of Beijing Normal University Law School notes that it is necessary for the Supreme People’s Court to issue a judicial interpretation setting clear guidelines for when to apply the new condition. How fairly the condition is applied will play an important role in whether the public can accept life without parole as a substitute for the death penalty.

Choosing Retribution over Rehabilitation

By choosing to deprive certain prisoners of any possibility for early release, China is giving more weight to the retributive and deterrent functions of criminal punishment than to its longstanding emphasis on rehabilitation and reform. If things continue to develop in this direction, what impact might this have on China’s criminal justice system?

Other than the United States, where in the 1980s an abrupt departure from reformative justice helped make life without possibility of commutation or parole a common sentence, very few other jurisdictions impose such categorical penalties. Elsewhere, in fact, it is more common to make possible some form of conditional release after ensuring that an individual has been imprisoned long enough to reflect the seriousness of his or her offense. This is in keeping with the United Nations Standard Minimum Rules for the Treatment of Prisoners. The rules state that the protection of society through imprisonment, and other deprivations of liberty, “can be achieved only if the period of imprisonment is used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life.”

In an article published just last year, Professor Zhao Bingzhi criticized life imprisonment without the possibility of sentence reduction or parole as inhumane and a violation of human dignity comparable to the death penalty itself. In a forum on death penalty reform in 2008, Zhao and other Chinese legal experts presented arguments on why life without parole was unreasonable and ill suited to China’s justice system. Now, however, these same experts appear to be embracing more stringent penalties in the interest of making it possible to do more to reduce the death penalty. Life without the possibility of release for corrupt officials may be popular with the public, but the American experience ought to serve as a warning to China that failure to strike the right balance between punishment and reform can lead to many new and serious challenges to human rights.