Thursday, November 5, 2015

Guangdong High Court Asks Why So Few Are Found Innocent

A recently freed, wrongfully accused man becomes emotional during a 2014 interview. Credit:

Since 2012, Chinese legal authorities have overturned a series of high-profile convictions and taken steps to prevent miscarriages of justice, but one question is still being asked: why do Chinese courts acquit so few defendants? (In 2013, the acquittal rate rose for the first time since 2000, growing annually from six acquittals per 10,000 adjudications to seven.) Some argue that institutional support for conviction stands in the way of systemic change.

Researchers at Guangdong High People’s Court wanted to find out for themselves, conducting interviews, holding seminars, and analyzing court documents related to acquittals throughout the province. The results, which were published as a report last year, offer a fascinating view into how those within the judiciary interpret the institutional, legal, political, and social factors that shape the way Chinese courts operate.

The researchers report that, for the five years between 2008 and 2012, Guangdong courts acquitted only 198 individuals in 180 cases. This represents a mere 0.04 percent of all individuals subject to criminal decisions that took effect during the period. The great majority (86 percent) of acquittals were on grounds of insufficient evidence, with a handful of others issued for things like self-defense, mental incompetence, or defendants who were under the age of 16. Acquittals occurred in a wide variety of cases—though not in any involving state-security offenses—but were most frequent in cases of assault. The trial process typically took longer than average when it resulted in acquittal, extended in accordance with the law by both courts and prosecutors. The average length of a trial that ended in acquittal was 169 days, or about five months, with the longest stretching to 504 days and the shortest at 55.

These quantitative results are not the most interesting part of the report, in part because there are so few cases to study. Much more interesting are the authors’ observations on the factors contributing to the dearth of acquittals, the impact this has on the legal system and society at large, and what might be done to remedy the situation.

Acquittal Averse Strategies

The extremely low number of acquittals doesn’t mean that criminal prosecutions in Guangdong are rock-solid. The report points out that, when the facts of the case are unclear and evidence is insufficient, judges use a number of strategies other than acquittal. In relatively minor cases, for example, courts might work out an informal “plea bargain,” promising to hand down a non-custodial penalty (like a suspended sentence) in exchange for a defendant’s promise not to appeal. In death-penalty cases, on the other hand, a court might issue judgments “with room to maneuver” (liu you yudi caipan)—imposing a more lenient suspended death sentence that gets commuted to life imprisonment (and then, later, a fixed-term sentence) almost automatically. Appeals courts are in an even better position to shift responsibility, as they can always send cases back to a lower court for retrial rather than rule to acquit.

Another common way courts avoid acquittals is to allow the prosecution to withdraw its indictment, which it may do at any point before a verdict is announced. In some cases, this has the effect of ending the case against the defendant, but in others, the prosecution can decide to submit a new indictment or send the case back to police for additional investigation. This amounts to a waste of resources, the report says, and results in individuals being locked up for far longer than they ought to be.

The report argues that prosecutors, with the help of the courts, are abusing this provision of the Criminal Procedure Law (CPL) and that the practice needs to be more strictly regulated. For example, it recommends that prosecutors generally not be allowed to withdraw indictments for unclear facts or insufficient evidence. This is because the CPL already gives prosecutors two opportunities to request trial adjournment for additional investigation. If this is not enough, the report concludes, then the court should exercise its power to issue an acquittal. The report also suggests prohibiting prosecutors from withdrawing an indictment once investigation of the facts and evidence has begun at trial and, when withdrawal is approved, limiting prosecutors to one re-indictment.

Inside the Pressure Cooker

Why is it necessary to go through so much effort to avoid issuing acquittals? A recurring theme throughout the report is pressure. Stability-first governance campaigns and a whole system of associated performance measurements create pressures for conviction throughout the criminal justice system. Written and unwritten rules place a premium on rates of case-solving, arrest approval, and conviction as factors used to measure police or procuratorate effectiveness and can be tied to individual promotion or ranking. Since acquittals have the effect of lowering these statistics, police and prosecutors are incentivized to seek conviction and mobilize all manner of available resources to influence courts not to acquit.

As the final stop in the criminal process, courts bear the brunt of the pressure to convict that’s built into the system. As the report puts it: “The public security bureau is responsible for cooking the meal and the procuratorate for serving it. Last to come, the court has only two choices as it faces this meal—either eat up or reject all the work that the first two institutions have already put into the case.” Acquittal, in other words, puts courts in potential conflict with other local law-enforcement bodies that are expecting conviction.

In major cases, especially homicides, police often face considerable political and social pressure to bring a culprit to justice. When they do make arrests, it can lead to merit citations being publicly issued to the investigation team even before indictment, let alone conviction. If the court later acquits, not only must these citations be withdrawn, there will likely be compensation claims made against the police for wrongful detention. In some cases, the same individuals who had been rewarded for solving the case might end up facing investigation for misconduct or even criminal liability.

Prioritizing Public and Process

There are many negative consequences arising from courts’ failure to issue acquittals, according to the report. The most obvious effect is on the credibility of the courts. On this point, the report is particularly frank, warning: “the public is already deeply suspicious and dissatisfied with the [level of] fairness in our criminal justice system, and wrongful convictions are adding fuel to the fire.” They continue, stating: "Convictions based on protecting face and reducing pressure only bring momentary peace and tranquility. When and if the bomb will explode all becomes a matter of luck. But what’s certain is that, the moment the bomb goes off, the courts will suffer the heaviest casualties."

In order to prevent calamity, the report recognizes that courts must exercise their judicial powers more independently, but it provides little advice on how to do so, apart from improving awareness and understanding of the law and legal principles like the presumption of innocence. There is no mention of the "coordination” between police, procuratorates, and courts by the party’s politico-legal committees and little on the role of adjudication committees, where senior court officials get an opportunity to weigh in on how to rule in complex or important cases they have not personally heard.

In fact, the authors appear to believe that increased communication between investigators, prosecutors, and judges can help judicial authorities make their case about resolving problematic prosecutions through acquittal. They recommend, for example, having police and prosecutors sit in on adjudication committee meetings in cases where problems arise. The assumption is that this will enable the courts to exert influence over the other law-enforcement bodies as opposed to the other way around.

One thing that seems to be on the minds of the report’s authors is a responsibility system for wrongful convictions. They make the case that mistakes are inevitable within any legal system and that neither wrongful convictions nor acquittals should automatically be thought of as “mistakes” for which someone must be punished. That is what happens, they suggest, when too much emphasis is placed on outcomes without giving due weight to process.

This is especially important for judges, they argue, and requires transforming the way that judges are evaluated and how data is used. They believe that judicial statistics like conviction rates have no place in deciding promotion or professional ranking. They do, however, see value in continuing to collect statistics and conduct ongoing research in order to evaluate the performance of the criminal justice system as a whole and to boost its credibility with the public.