Thursday, February 8, 2018

Dui Hua Book Review: The People’s Republic of the Disappeared

Michael Caster’s The People’s Republic of the Disappeared: Stories from Inside China’s System for Enforced Disappearances. Image Credit: RSDLMonitor.Com

Dui Hua examines the stories of dissidents held under the coercive measure “residential surveillance in a designated location” in Michael Caster’s The People’s Republic of the Disappeared: Stories from Inside China’s System for Enforced Disappearances (Safeguard Defenders, 2017).

As the waves of repression in China have intensified over the past decade, one encounters the strange phrase “residential surveillance in a designated location” (RSDL) with greater frequency.

It was memorably employed (though by no means for the first time) against the late Nobel Peace Prize laureate Liu Xiaobo, after the publication of “Charter 08” in December 2008. Later, it was used in the crackdown against the so-called “Jasmine Revolution” in the spring of 2011. Most recently, it has been a prominent feature of the ongoing crackdown against rights lawyers and activists that began in July 2015.

This measure, with its relatively benign-sounding name, has been examined critically before, both inside and outside China. The new book The People’s Republic of the Disappeared makes an important contribution to this critique by collecting vivid accounts from those who have been subjected to the measure. Together, these accounts paint a damning portrait of how Chinese law enforcement agents are using the power they have been given under the law to violate human rights with impunity in the name of safeguarding state security.


What exactly is RSDL? At first glance, it looks like it might be a form of house arrest, although “designated location” suggests that it might involve something other than being confined in one’s own home. “Surveillance” only adds to the mystery, suggesting some sort of monitoring without making exactly clear how intrusive it might be.

In China’s Criminal Procedure Law (CPL), RSDL is what’s known as a “coercive measure.” Simply put, coercive measures authorize law enforcement agents to restrict a person’s liberty in the course of a criminal investigation. The degree and duration of that restriction depends on a variety of factors, but coercive measures are meant to serve a rather limited set of aims: preventing suspects from posing further threats to society or obstructing the investigation process and ensuring their availability to face questioning or stand trial. Coercive measures are not meant to be punitive or to be used as tools of investigation in their own right.

In Chinese criminal procedure, “residential surveillance” exists alongside other coercive measures such as custodial detention (seen as the most restrictive measure) and “release on guarantee pending further investigation” (qubao houshen, which is much less restrictive). The ordinary form of residential surveillance—which, as the name suggests, permits suspects to remain in their homes under certain restrictions—is a relatively lenient, non-custodial measure. For that reason, the CPL allows it to be imposed for up to six months.

Six months spent under house arrest is no picnic, but it is likely to be a more comfortable experience than being sent to a detention center. For this reason, reformers have promoted the greater use of non-custodial measures like residential surveillance as a way of reducing overuse of custodial detention.


The book features eleven accounts, all but one of them presented in the first-person, from lawyers and political activists who were subjected to RSDL or similar measures between 2011 and 2016. These include well-known human rights lawyers, such as Tang Jitian, Liu Shihui, Sui Muqing, and Wang Yu. It also includes an account by Peter Dahlin, a Swedish human rights activist detained in 2016 for his connection with some of these lawyers and activists. Though each account is distinct, the victims’ experiences under RSDL share some key features. It is difficult to ignore how the measure of RSDL has become an integral part of a systematic regime used by authorities to target particular individuals.

Though regulations require that the locations used for RSDL “possess conditions for ordinary living and rest,” it is clear from these accounts that disruption of routine daily activities is key to how the system operates. Sleep deprivation and the withholding of food and personal hygiene products are common practice. Detainees are cut off from communication with family, friends, and lawyers. Guards and interrogators use humiliation, enforced discipline, physical and verbal abuse, and threats to friends and family members. Family members of victims are also subject to varying degrees of surveillance, including house arrest, such as in the case of Wang Yu’s family. International law recognizes family members of victims of enforced disappearances as full victims.

The victims’ accounts of confinement and interrogation becomes at times indistinguishable, since most detainees are subjected to questioning in the same place they are held—contrary to the provisions of RSDL. Invisible, alone, and at the mercy of guards and investigators who act with impunity, it is unsurprising that, in almost every case included in this book, involuntary confession is what brings the ordeal to an end.

Lawyer Liu Shihui, who describes his 2011 confinement under RSDL, calls the measure “a system designed for prisoners of conscience [and] a place designed for torture.” Time and torment essentially ensure that any resistance gives way to capitulation. However, some accounts reveal that even in their acts of forced “confessions”, victims attempt to resist the abuse of state power. For example, lawyer Sui Muqing recounts the importance he placed in maintaining a degree of personal integrity and dignity by refusing to incriminate others in his confession.

In reading these accounts one cannot escape the recurring sense that authorities use the brutal conditions of confinement in RSDL for the purpose of obtaining these confessions—the veracity and voluntariness of which does not necessarily matter. In this sense, one can certainly see how useful investigators would find RSDL—especially as a tool in sweeping crackdowns with multiple, linked suspects. Even if, as in most of the cases in this book, confessions do not lead to direct criminal prosecution, the authorities can still use them against other suspects. And by recording and broadcasting these forced confessions, the authorities can attempt to bring public discredit on both the individuals and the causes they promoted.

Beyond confessions, the brutal confinement of RSDL constitutes a form of punishment in itself, especially when stretched to its six-month limit. Even the mere existence of RSDL seems designed to spread fear, and threat of its use can be enough, in some cases, to achieve the desired outcome.


Of course, no matter how well RSDL might serve the aims of the Chinese authorities in terms of maintaining stability and political control, it doesn’t justify the use of torture and many other violations of individual human rights that it enables. Liu Shihui’s judgment that RSDL is a “place where law doesn’t exist” is amply backed up by the other accounts in this book.

The similarities in these accounts unquestionably demonstrate a pattern of abuse. Yet, there may still be some who will claim that these stories are exceptional and do not represent the entirety of RSDL. For every instance of abuse under RSDL, there are sure to be examples in which the measure is being used in more benign ways. Even if these cases are exceptional, this is precisely why RSDL is so insidious. By labeling these acts a form of “residential surveillance,” Chinese authorities are engaged in a deliberate effort to obscure their use of torture and enforced disappearance. Through publishing these accounts, The People’s Republic of the Disappeared is attempting to shatter the veneer behind which these severe violations have tried to hide and expose them for the world to see. And given that the accounts are diverse in both the time frames and geographical regions they represent, it is unlikely that they are simply exceptional cases. The accounts come from two separate sweeps, one carried out in 2011 and the other in 2015-2016 and they take place across four distinct locations: Beijing, Guangzhou, Tianjin, and Changsha.

Of all the people who should read this book, which has also recently been released in Chinese, it can only be hoped that it will be read by all of the Chinese academic legal experts who have been so instrumental in directing the reform of China’s criminal justice system. In the past, many of these experts had publicly criticized the ways Chinese investigators used residential surveillance. Yet these same experts stood by and even defended the inclusion of RSDL measures in the most recent revision to the CPL, rejecting predictions that the measure would be abused. In a perfect world, this book would prod their consciences and, in the name of human rights and rule of law, lead these influential experts to turn their efforts to stopping the outrageous abuses exercised under RSDL.

Wednesday, January 10, 2018

“Mandarin Only” Visitation Rules

Bilingual education class offered in a juvenile reformatory in Kashgar, Xinjiang. Image:

The promotion of Mandarin as China’s lingua franca, commonly referred to as “tuipu,” has been one of the most sweeping initiatives implemented by the Chinese government. Tuipu serves the dual purpose of forging a sense of national identity based on Han culture and weakening regional and ethnic loyalties. Some regional dialects and ethnic minority languages have largely died out in China because of tuipu propaganda that portrays them as “uncivilized” and “barbaric.” The use of regional dialects and ethnic minority languages (e.g. Mongolian, Tibetan, Uyghur) is banned in many government offices and schools, and on television programs. According to the latest official statistics, the literacy rate of Mandarin in urban China has reached 90 percent, however in rural areas it remains around 40 percent.

Within the carceral system, prisoners are not required to speak Mandarin among their peers, but the use of dialects and minority languages are subject to varying degrees of restrictions when it comes to family visitation rules. It should be noted that at the national level neither the Prison Law nor the visitation and correspondence regulations issued by the Ministry of Justice (MOJ) on December 5, 2016, contain provisions restricting the use of dialects or minority languages. However, in practice many local prisons have taken it upon themselves to mandate the use of Mandarin during family visitations, with varying degrees of enforcement. As many of those who come into conflict with the law are from rural areas, it comes as little surprise that many of those subject to prison surveillance have limited economic means and educational opportunities to learn Mandarin. Prisoners and their family members, especially older generations, who can only speak their regional dialects or their minority languages are consequently deprived of their visitation rights. Dui Hua’s research has found that those who fail the “Mandarin only” visitation requirement also have slimmer prospects for obtaining clemency.

Domestic news media in China occasionally report stories about the use of regional dialects during prison visitations to showcase the more “human” side of prison management. A news article in 2004 reported a story from Shanghai’s Tilanqiao Prison where well-behaved prisoners were allowed to speak in their local dialects when making phone calls to family members. A Xinhua article in 2014 covered a story about a prisoner serving time in Guangdong’s Jieyang Prison who spoke in a local dialect during a video call with his mother in Guangxi, who he had not seen in three years.

In Sichuan’s Jinjiang Prison, visitation rules state that prisoners and their family visitors can speak in Mandarin or Sichuanese during visitations. However, such leniency is not extended to many other prisons around the country. In Guangdong, Zhuang Songkun (庄松坤) is one of the Wukan villagers who was sentenced in December 2016 for allegedly instigating protests against local government corruption. When Zhuang’s wife tried to visit him at Guangdong’s Wujiang Prison on February 23, 2017, she was not allowed to speak in her Chaozhou dialect. As she was unable to speak Mandarin, the prison officers confiscated her microphone, which had been attached to a video recording device, cutting short the whole visit to a mere five minutes. Henan-based lawyer Ren Quanniu publicly remarked that such a policy is an abuse of power, especially given that there is no written provision prohibiting the use of regional dialects. The MOJ regulation entitles prisoners to up to one monthly visit from family members or guardians in the form of telephone calls, face-to-face meetings, or video calls. (In some parts of China, visits from family members take place less frequently.) Meetings are not supposed to exceed 30 minutes, though sometimes more time is given as a reward for good behavior. Even during court proceedings, defendants, police, prosecutors, and judges often communicate in regional dialects. It is unlawful to deprive prisoners such as Zhuang of their visitation rights just because prison staff cannot understand them, says Ren.

Wujiang Prison is not alone in prohibiting regional dialects; similar visitation restrictions are commonplace across China. A guide issued by Guangdong’s Gaoming Prison in December 2015 states that a family visit will be cancelled unless both prisoners and visitors speak Mandarin. The same policy is enforced in Fujian’s Qingliu Prison as part of the campaign to “cultivate civilization.” In the same province, an exception is made at Putian Prison, but only for elderly prisoners who cannot speak Mandarin and who are meeting with a relative who can provide translation for the supervising guard.

Despite the generally lower Mandarin proficiency among many ethnic minority groups in China, there are still language restrictions in prisons located in provinces with large ethnic minority populations. In Guizhou province, where one-third of the population is non-Han Chinese, minority languages spoken in prisons are strictly regulated. A provincial visitation guide issued in 2015 bans ethnic minority languages and the use of any “secret languages” during visitations to the provincial judicial police hospital that caters to prisoners in need of medical treatment. The restriction aims to cultivate “linguistic civilization” and maintain “one’s dignified demeanor.” The same restrictions apply to Wenshan Prison and Yiliang Prison in Yunnan province, which has an ethnic minority population of over 15 million. Yiliang Prison does not explicitly forbid the use of Yunnanese among local prisoners, but all other regional dialects and minority languages are prohibited. Violators of the rule can have their family visitation rights taken away for six months and in serious circumstances a case can be filed to investigate the matter.

Sichuan appears to be one of the few exceptions. Given that Sichuan has a non-Han population of approximately five million, the Sichuan Prison Administrative Bureau permits the use of minority languages like Tibetan in prisons throughout the province. Shandong province, although not nearly as ethnically diverse as Sichuan, permits minority language use during visitations, albeit with some restrictions. For instance, Shandong's Luning Prison only allows the use of minority languages when prisoners have obtained prior police approval.

In China’s autonomous regions of Tibet and Xinjiang, regulations on prison visitation rules could not be found by Dui Hua researchers. However anecdotal evidence from formerly incarcerated individuals suggests that these regions are not unlike the rest of China when it comes to enforcing Mandarin during prison visitations. Circumstantial factors such as the particular prison, the language ability of the guards on duty, and the political climate at the time can impact whether and how language and dialect restrictions are enforced.

Dui Hua’s research into clemency judgments found that the practice of speaking regional dialects also has a significant impact on a prisoner’s chances of gaining sentence reductions and parole. The judgments reveal that speaking dialects can be considered evidence of not “showing remorse,” a prerequisite for obtaining early release. Sentence reductions and parole are granted to those who have accrued a certain number of points for good behavior. Between 2013-2016, prisoners in Fujian and Shanghai received point deductions ranging from 0.5 to 2 points for each instance of speaking regional dialects during family visitations. In December 2016, the Fujian Bureau of Justice implemented new measures for assessing clemency points, drastically increasing the penalty for speaking dialects to a deduction of 30-100 points. In accordance with the new provincial directive, Wuyishan Prison deducted 30 points from a prisoner because he did not speak Mandarin on just one occasion during a family visit in March 2017.

The impact these rules have on prisoners who are ethnic minorities or who come from rural areas with limited opportunities to learn Mandarin, or those who come from both backgrounds is significant. The rules not only deny these groups precious contact with their families and opportunities to gain early release but they also function to further stigmatize and criminalize these groups because of their ethnicity and limited economic means.

It is not uncommon for prisons to impose restrictions on communication within prisons for security purposes, such as to guard against distribution of printed materials that can be used to plan escapes or other crimes. However, language restrictions on visitations are now widely uncommon. (In the United States, Utah was the last state to drop the “English only” visitation requirement in August 2013.) While the promotion of Mandarin has been crucial to China’s development, punishments in the form of denying visitation rights and equal opportunities for clemency due to language ability deprive prisoners of their constitutional rights (Article 4 “All nationalities have the freedom to use and develop their own spoken and written languages.”)

Dui Hua has found some cases where prisoners earn points towards clemency as a result of learning Mandarin. In some rare cases, rewards are given to those who learn minority languages and contribute to “bilingual education classes” offered to prisoners to learn both Mandarin and ethnic minority languages in autonomous regions. However, these cases are rare and resources for Mandarin education in prisons are by no means comprehensive.

The suppression of regional dialects and ethnic minority languages that has accompanied tuipu has long been a source of social and ethnic tension, sparking incidents of unrest across China. Learning Mandarin can better equip prisoners with skills for post-release integration and opportunities for clemency provide prisoners with a strong incentive to learn and a chance at earlier reintegration. Rather than directing resources to support prisoner’s education and rehabilitation, the punitive “Mandarin only” visitation rules serve instead to undermine inter-ethnic relationships and run counter to the ideal of the “harmonious society” that the Chinese Communist Party and the Chinese government strive to achieve.

Thursday, November 16, 2017

Five Years and Counting

Guangdong Jiangmen Detention Center. It is divided into 79 cells and the buildings form a large enclosed space in the middle. In 2013, the facility held about 1,600 detainees. One of them was Mark Swidan. Image:

A troubling feature of China's criminal justice system is that a judgment in a criminal trial can be postponed indefinitely after the trial concludes. American citizen Mark Swidan was formally detained on drug charges on November 14, 2012. He was tried in 2013 by the Guangdong Jiangmen Intermediate People's Court. The court has yet to announce its judgment; the Supreme People's Court in Beijing has extended the deadline for the court to render a judgment at least a dozen times. The most recent extension was granted on October 14, 2017. This extension, as with the others, is for three months. A judgment must be announced or another extension must be applied for by January 14, 2018. January 14 is Mark Swidan's birthday.

In the meantime, Mark Swidan remains held in the Jiangmen Detention Center run by the Jiangmen Public Security Bureau. He receives monthly visits from an officer at the American Consulate in Guangzhou.

Mark Swidan in happier days. With mother, Katherine, in Houston, 1991. Image credit: Katherine Swidan

Mark Swidan was taken into custody during a police raid on his hotel room on November 12, 2012. He was on a business trip. Two individuals – an interpreter and a driver – had come to his room. Police reportedly found drugs on their persons. No drugs were found on Mr. Swidan or in his room. Drugs were found in the room of another suspect. No forensic evidence has been produced – no drugs in his system, no DNA on the packages, no fingerprints on the packages or drug paraphernalia – tying Mr. Swidan to the drugs. No emails, letters, or phone calls have been found that link Mr. Swidan to any drug transaction. The indictment states that Mr. Swidan played a secondary role in the alleged crime. Prosecutors recommended a lesser sentence. Mr. Swidan has no history of criminal behavior, including using or trafficking in drugs.

The alleged crime involved 11 people, including, in addition to American citizen Mark Swidan, four Mexicans, one Canadian, one Hong Kong resident, and four Chinese citizens. It is believed that some of defendants have pointed the finger at Mr. Swidan, who comes from a Texas family of limited means. He is unable to hire good legal counsel. Mr. Swidan refuses to admit guilt. He is said to rather die than admit to a crime he didn't commit.

Reports given to the family over the years suggest that Mr. Swidan has suffered during his five years in the detention center. He has had his art supplies seized. He has been shackled, bullied, and denied medical treatment. His mother is often unable to have her letters delivered. He has threatened suicide. Detention centers are often accused of being carceral facilities where torture is common place.

According to a human rights officer working for the United Nations in Geneva, the way Mr. Swidan's case has been handled is a "cut and dry case of arbitrary detention." In perhaps the best known case of someone determined by the Working Group on Arbitrary Detention to have been arbitrarily detained in part because of a long delay in announcing a verdict, the WGAD found that the failure to announce a verdict in the case of American journalist Jason Rezaian, detained in Iran in 2014 and tried in the summer of 2015, was a violation of Article 14 of the International Covenant on Civil and Political Rights.

It is not unheard of for Chinese defendants to have their judgments delayed for a period of several months. Prominent dissidents like Gao Yu, Guo Feixiong, and Pu Zhiqiang all had their judgments delayed for many months. But holding a foreigner for five years without adjudication is unheard of. No Chinese official has given an explanation for this interminable delay, merely stating that the case is "complicated."

Article 202 of China's Criminal Procedure Law (CPL) states that a people's court should announce judgment within two months of the completion of the trial, and no more than three months can pass without a judgment being announced. If the crime can result in a death sentence or if there are complicating factors, then the higher court can extend the time for rendering a judgment by three months. "If there are special circumstances requiring additional extensions, the court must apply to the Supreme People's Court for approval." There is no statutory limit for the number of times a judgment can be extended.

Complicating factors leading to an extension of the judgment include 1) if the offense involves both criminal and civil penalties (Article 202); 2) if the case is an important or complicated one in rural areas with inconvenient transportation; 3) if the case involves large criminal organizations; 4) if it is an important case involving crimes committed in multiple locations; and 5) if collecting evidence is difficult (2-5 are covered by Article 156.) In short, there are many reasons why a Chinese court can extend a judgment for as long as it wants, and there are no means to force a decision.

"Justice delayed is justice denied" is a legal maxim, widely ascribed to the British jurist William Gladstone, that is the basis of a fundamental due process right, the right to a speedy trial and judgment. Another legal maxim is that a suspect is innocent until proven guilty. In the eyes of the law, Mark Swidan is an innocent man.

Justice has been denied to Mark Swidan and he and his family have suffered greatly. But China's reputation as a country that respects the letter and spirit of law and protects fundamental rights has also suffered. The Jiangmen Court needs to announce its judgment, a judgment which will hopefully result in Mark Swidan going home without further delay.

Wednesday, October 11, 2017

The United States and European Union Hammer China at the Human Rights Council

Statements delivered at the Human Rights Council 36th Session; clockwise from top left: the US, China, Germany, and Estonia (representing the EU). Image Credit: UN Web TV.

At the 35th session of the Human Rights Council (HRC) in Geneva in June 2017, the European Union (EU) was unable to make a statement criticizing China’s human rights record under Item 4 of the Council agenda, “Human Rights Situations that Require the Council’s Attention.” The EU works under the consensus principle, meaning that all 28 member countries must agree on important foreign policy statements, and Greece, which has received massive investments and aid from China (China Cosco Shipping owns a controlling stake in the Greek port of Piraeus), refused to endorse the EU’s statement, effectively killing the initiative.

Diplomats and representatives of human rights groups were outraged. Rubbing salt into the wound, China thanked Greece. The German foreign minister accused China of trying to undermine “One Europe.”

Media coverage was intense. In one of many articles in American and European media that covered the debacle, The Washington Post, in an article entitled “Europe divided, China gratified, as Greece blocks EU statement over human rights,” wrote that “Money really can buy love, and in China’s case, it appears to be helping to keep the EU divided and ineffective.”

In a stunning reversal, the EU made an Item 4 statement at the 36th session of the HRC that ended in Geneva on September 29. The EU statement was accompanied by Item 4 statements by Germany, the United Kingdom, and the Czech Republic. (Switzerland, which is not a member state of the EU, made a statement on Liu Xia, the widow of Nobel Peace Prize laureate Liu Xiaobo, under Item 2 of the agenda.) The EU regretted the death in prison of Liu Xiaobo and called on Beijing to lift restrictions on Liu Xia. It expressed concern over the lack of transparency and respect for due process in the cases of detained human rights lawyers and called on China to ensure fair trials for individuals detained for their human rights activities, including Jiang Tianyong, Wang Quanzhang, Tashi Wangchuk, and Wu Gan. It also called on China to respect cultural diversity and freedom of religion in Tibet and Xinjiang.

Germany expressed deep worries over widespread human rights abuses in China, especially in Tibet and Xinjiang. It cited infringements on the freedom of religion witnessed at the Larung Gar monastery in Sichuan Province, and urged China to immediately release all human rights defenders, including Jiang Tianyong, Wang Quanzhang, Wu Gan, Liu Feiyue, Huang Qi, Li Tingyu, Lu Yuyu, and Tashi Wangchuk. It asked China to allow visits of the UN Special Procedures.

The United Kingdom (UK) registered sadness over the death of Liu Xiaobo, and concern over the handling of his case. It too called for the lifting of all restrictions on Liu Xia.

Dui Hua has failed to find a single media article on the EU’s about-face. Nor has the foundation received an explanation of how it came about. The final decision was said to have been reached by foreign ministers in New York for the United Nations General Assembly meeting. It was also claimed that the final decision was reached in Brussels hours before the statement was delivered. One European diplomat said that Germany in particular was incensed by the Greek scuttling of the EU statement at the 35th session of the HRC, and let Greece know “which side of their bread was being buttered by whom,” a reference to the bailout of cash-strapped Greece by the European Commission and EU member states. Another official cited widespread disappointment with the bilateral human rights dialogue held between China and the EU on June 22-23, 2017. Despite questions by the EU on Liu Xiaobo, the Chinese side said nothing in reply, even though it has emerged that the Chinese side was aware at the time that Liu was gravely ill.

The statements under Item 4 by the EU, Germany, and the UK could impact the holding of future bilateral human rights dialogues between the countries and China. Prior to the June 22-23, 2017 dialogue, China warned the EU that the dialogue would be cancelled if it made an Item 4 statement at the 35th session of the HRC. Now that the EU, Germany, and the UK have defied China, it may well turn out that sessions of human rights dialogues expected to be held in 2018 will not take place, dealing a fatal blow to the practice of holding human rights dialogues with China.

The United States Issues Sharp Criticisms at HRC 36

As if to challenge the narrative, advanced by critics, that the Trump administration does not care about human rights abuses in China, the US Mission in Geneva made three statements that sharply criticized aspects of China’s human rights behavior. Statements were made under Items 3 (“disappearances”), 4 (“situations requiring attention”), and 5 (“human rights bodies and mechanisms.”) No other country made three critical statements.

The Item 4 statement accuses China of arbitrary detentions, torture, and forced confessions on state media of lawyers and activists. Both Item 4 and Item 5 cite retaliations against family members and others who cooperate with UN Special Procedures. Item 4 says that conditions in Tibet and Xinjiang are akin to martial law.

Of particular note is language on Hong Kong in the U.S. Item 4 statement: “We are concerned by the decision of the Hong Kong authorities to seek tougher sentences for activists after they served their original sentences.” This is a rare instance of U.S. criticism of Hong Kong at a session of the HRC.

Another first for the U.S. was the issuance of a statement under Item 3 of the agenda. The statement criticized China for detaining the Hong Kong Causeway Bay booksellers in 2015, and the alleged kidnapping by Chinese security agents of billionaire businessman Xiao Jianhua in a Hong Kong hotel earlier this year. The US Item 3 statement registered concern over enforced disappearances in only two countries, China and Syria, in that order.

China Reacts

China’s mission in Geneva issued furious rebuttals to the US and EU Item 4 statements, accusing the countries of widespread and serious human rights abuses. It singled out racism and white supremacism in the United States and the rise of neo-Nazis and xenophobia in Germany. The UK was called out for “the phenomenon of modern slavery in which tens of thousands of migrant household workers suffer ill treatment.”

China was especially angered by the US statement under Item 3. Not only did the Americans criticize Chinese actions involving Hong Kong, the Chinese side was given only 20 minutes to craft a reply. In one respect, however, the Chinese government was relieved by the action in Geneva. It had been rumored that another joint statement like the one made by the United States and 11 "like-minded countries" under Item 2 at the 31st session of the Human Rights Council would be delivered at the 36th session. It appears that the strategy by Western countries has shifted from making joint statements to making individual statements. Whether this strategy holds going forward remains to be seen.

Tuesday, September 26, 2017

The Importance of Mental Health Evaluations in Juvenile Cases (Part 2 of 2)

Juvenile Justice Information Exchange Illustration by Kathy McCarthy.

Continuing from Part 1, Part 2 of “The Importance of Mental Health Evaluations in Juvenile Cases” explores how the states of California and South Dakota apply or fail to apply juvenile competency laws when it comes to violent crimes committed by young juveniles.

California: Mid-High Incarceration Rate (173-366.5 per 100,000)

Facts: A female defendant, Sarah Weeden, who was 14 at the time of the crime, was arrested, convicted, and sentenced for the killing of Navnil Chand, who was killed by gunshot in a robbery by 23-year-old Sertice Melonson. The crime occurred in August 2005 and Weeden’s trial was in 2008. In April 2017, the 9th US Circuit Court of appeals reversed Weeden’s conviction and remanded for a new trial, finding that Weeden’s trial attorney provided ineffective assistance of counsel for failing to have Weeden evaluated by a psychologist to determine Weeden’s capacity to form criminal intent. Weeden might be re-tried in juvenile court.

California on Juvenile Mental Health/Competency: According to the Youth Law Center based in San Francisco, California case law has held, since 1978, that children must be competent to stand trial, but the California legislature only passed a juvenile competence statute in 2010 (i.e., after Weeden’s trial). Since then, the legislative framework provides that if a juvenile case presents evidence that the defendant might not be competent to stand trial, the courts have a variety of informal and formal options to determine competency.

Defendants Evaluated for Mental Health/Competency Before Conviction? Weeden was never evaluated for competency by the Sacramento District Attorney’s Office, and Weeden’s attorney did not request a psychological evaluation, forming the basis for the reversal of Weeden’s conviction. In reversing the conviction, the 9th Circuit opinion criticized Weeden’s trial attorney “for not seeking a psychological evaluation on Weeden to determine the effect of her youth on her mental state and whether she could form the intent to rob.”

South Dakota: High Rate of Juvenile Incarceration (366.5-560 per 100,000)

Facts: In 2000, a jury convicted Daniel Charles of first-degree murder in 2000 in the sniper killing of his stepfather, Duane Ingalls. Charles was 14 at the time of the crime. Charles was sentenced to life in prison without the possibility of parole (LWOP), but such sentences were largely ruled unconstitutional by the US Supreme Court in 2012. Charles was resentenced to a 92-year sentence, a decision that was upheld by the South Dakota Supreme Court in March 2017.

South Dakota on Juvenile Mental Health/Competency: The South Dakota legislature passed a juvenile competency statute in 2013, giving trial courts wide latitude to order psychological evaluations to determine a juvenile defendant’s competency to stand trial, with the evaluation to occur within 30 days of the court’s order. This law was passed well after Charles was convicted and sentenced for killing his stepfather.

Defendants Evaluated for Mental Health Before Conviction? Extant accounts of the killing and the trial give no indication that mental health of Charles was considered, as the defense theory was based purely on the claim that Charles accidently shot the victim.

Why mental health evaluations are critical for juvenile justice

Among the four violent criminal cases examined, the only one in which the defendant was given a psychological evaluation before adjudication was in Wisconsin, a state that had an existing statute covering juvenile competency hearings. Juvenile incarceration rate was not associated with a greater tendency to conduct mental health evaluations— in the Massachusetts case, the defendant was not evaluated despite presenting significant mental health concerns. These findings support appeals by proponents to implement juvenile competency legislation so that courts follow clear procedures regarding when and how juvenile defendants should receive mental health evaluations. This growing trend is especially important given the complicated mental health issues facing adolescents and questions about criminal culpability that arise from scientific findings about the juvenile brain. Although these cases are a small sample, they suggest that if state legislatures provide statutory guidance on juvenile competency, it becomes more likely that juvenile defendants will receive a professional evaluation before they are sentenced to a lengthy term of confinement. With a mental health evaluation, youth in conflict with the law have a better chance of accessing the necessary mental healthcare and community services that they need to recover and live a better life.

If the mental health problems of more juveniles are identified and early intervention is prioritized in case handling, more juveniles and communities would also benefit from the policy advances being made in juvenile mental healthcare programs. A 2016 NCBI/NIH study on mental health and juvenile crime examined the effectiveness of various intervention and treatment programs/approaches, finding that treatment models including Cognitive-Behavioral Interventions (CBI) and Functional Family Therapy (FFT) are effective treatment frameworks for juvenile offenders. These models share two major features: integrated systems of care (education, child protection, family participation, and mental healthcare) that intervene in juvenile cases in a collaborative manner to meet the interrelated needs of each individual youth; and an approach to rehabilitation that emphasizes an effective screening and assessment process.

If we don’t identify mental health issues in juveniles prior to conviction, we run the risk of allowing the carceral system to be the site where juvenile mental health disorders are identified and treated, or worse yet further ignored. Prisons have repeatedly proven to worsen inmate’s mental health and contribute to their recidivism. According to the National Center for Mental Health and Juvenile Justice, the timing of mental health intervention is critical:

“Youths who immediately receive a mental health screening are more likely to have their problems identified and treated. Often, however, screening and assessment take place only after a juvenile has been adjudicated and placed in a correctional facility. A prompt mental assessment of juveniles at initial court intake allows the information gained to be used in making diversion or other dispositional decisions.”

Reforms in Nevada are consistent with these findings, as they have appropriated funding and mandated the implementation of mental health evaluations and programs before a youth is convicted and punished. At Mendota Juvenile Facility in Madison, Wisconsin, results from a program to treat psychopathology among violent juvenile offenders are promising. The study finds that even among violent juvenile offenders who exhibit psychopathological traits, interventions focused on positive reinforcement and constant staff presence produced much lower rates of general and violent recidivism 4.5 years after offenders were released compared to recidivism rates among juveniles released from ordinary (non-psychopathology specialist) detention centers.

Despite the tragic circumstances behind these cases, hopefully they can buoy a growing trend towards juvenile competency statutes in the United States that grant better treatment for juvenile offenders and an overall reduction in juvenile incarceration.

The Importance of Mental Health Evaluations in Juvenile Cases (Part 1 of 2)

Girls detained at a Santa Clarita detention facility in Los Angeles. Image Credit: LA Times.

According to a National Conference of State Legislatures report, approximately 70 percent—or 2 million—juveniles arrested each year in the United States suffer from a mental health disorder. One in five “suffer from a mental illness so severe as to impair their ability to function,” and in addition, juvenile offenders often suffer multiple disorders at once, substance abuse being the most common co-occurrence with mental illness. Dui Hua has previously pointed out that girls in conflict with the law are more likely than boys to attempt suicide and to self-mutilate. And the disproportionately high rate of girls who are also victims of sexual abuse places them at even greater risk of suffering from multiple mental health illnesses.

Perhaps the most famous recent criminal case in the United States involving mental health concerns and very young female defendants is the “Slender Man” incident in Wisconsin, in which two 12-year-old female defendants stabbed a classmate repeatedly and were charged with attempted homicide. This unusual case reflects the complex intersection between mental health, crime, and juvenile justice policy and suggests that the growing trend toward juvenile competency statutes in certain US states might be a path towards more humane and sensible treatment of juvenile offenders.

This article is another installment in Dui Hua’s investigation of how different states approach high profile felonies committed by juveniles 15 and younger. In a similar vein to earlier installments, two case studies involve female juvenile defendants and two involve males, and the states chosen represent a variety of juvenile incarceration rates and juvenile policies. See here for a broad survey of each state’s rate of juvenile confinement. State juvenile policy works best when the lowest possible proportion of the juvenile population is confined in a detention facility. Selecting states with varying juvenile incarceration rates and juvenile justice policies is instructive for analyzing juvenile justice trends in the United States.

This article compares different state-level policy on juvenile competency hearings and applies these policies to the specific facts of each case, inquiring whether the defendants in each case were provided a psychological or mental health exam before adjudication and sentencing. Competency refers to the minor’s ability to understand the proceeding against them and to assist in his or her own defense. Competency evaluations can uncover not just mental health issues facing defendants, but also substance abuse and developmental problems that often co-occur among adolescents.

This section presents serious crimes committed by juveniles in four states. Part 1 investigates the states of Massachusetts and Wisconsin representing states with relatively low juvenile incarceration rates. Part 2 examines the states of California and South Dakota, representing states with higher juvenile incarceration rates.

Massachusetts: Low Incarceration Rate (46-109.5 per 100,000 juveniles)

Facts: Mathew Borges is accused of stabbing Viloria Paulino, his Lawrence High School classmate on November 18, 2016, decapitating him and mutilating his body. Borges was 15 at the time of the crime.

Massachusetts on Juvenile Mental Health/Competency: A Massachusetts bill that would create a juvenile-specific competence law in Massachusetts has been pending in the legislature for years. In general, juvenile defendants should be briefly evaluated by a court clinician; a more comprehensive evaluation may be conducted in an inpatient setting, but many of juveniles cannot easily be seen in the short same-day time frame created by the initial triage stage.

Defendants Evaluated for Mental Health Before Conviction? The defendant does not appear to have been evaluated for mental illness since his arrest, despite mental health concerns noted in media reports. Classmates described Borges as a quiet teenager with anger issues, with one classmate saying “He was scary,” and that “He was negative to be around. He seemed mad at the world.” Another classmate stated that Borges was frequently involved in fights.

Wisconsin: Mid-Low Incarceration Rate (109.5-173 per 100,000)

Facts: In May 2014, two 12-year-old girls stabbed another girl of the same age 19 times to impress the fictional “Slender Man” horror character; the case has received extensive media attention and separate trials for the two defendants are currently pending. One of the girls, now 15-years-old, pleaded guilty but claimed that she could not be held responsible for her actions on grounds of insanity; she will be placed in a mental hospital for three years. The trial for the second girl is scheduled to begin on October 9.

Wisconsin on Juvenile Mental Health/Competency: Wisconsin appears to be among a minority of US states that have passed laws providing for mental health screening of juvenile offenders via competency hearings, which occur before juvenile defendants can be sentenced to confinement. Wisconsin has had this provision on its books since 1995; under Wis. Stat. 938.295(2)(a), in cases where “there is probable cause to believe that the juvenile has committed the alleged offense and if there is reason to doubt the juvenile’s competency to proceed, the court is required to order the juvenile to be examined by a psychiatrist or licensed psychologist.

Defendants Evaluated for Mental Health Before Conviction? Both defendants in the Slender Man case were assessed in 2014 for their competence to stand trial. Since then, one defendant was diagnosed with schizophrenia and both defendants have pled not guilty by reason of mental disease.

Continue reading Part 2...

Tuesday, August 22, 2017

How Transparency in Death Penalty Cases Can Reduce Wrongful Convictions

He Jiahong (right) speaking on a forum at the "World Day Against Death Penalty", October 2014.

He Jiahong is a special kind of Chinese legal expert. He is a well-known legal scholar at Renmin University Law School in Beijing, where he specializes in criminal justice and the issue of wrongful convictions. He is also the author of detective novels and writes prolifically on legal subjects for popular audiences. He reportedly likes to describe himself as: “I am not only a jurist but a novelist, so I often have novel ideas about law.”

One of the ways in which He Jiahong expresses those ideas is through his public WeChat channel—a blog distributed to anyone who subscribes via the social media platform. Recently, he posted a piece with the rather provocative title: “The Number of Executions Should be Made Public.”

In China’s criminal justice discourse, public calls for greater transparency around the use of the death penalty are not unheard of but are nevertheless eye-catching when they do appear, especially from well-known legal experts such as He. Information related to the death penalty, including the number of executions carried out each year, continue to be treated as a closely guarded “state secret.” This is despite the fact that there are many indications that China has significantly reduced its use of capital punishment over the past decade—though it is still generally believed to be the world’s top executioner—and continues to face pressure from NGOs and United Nations human rights bodies to be more transparent about its use of the death penalty.

Changsha Court public announcement of death sentences. Source: Hu Guiyun.

He Jiahong raises some familiar arguments in support of greater transparency about capital punishment in China, including the importance of preventing wrongful executions, demonstrating the progress made in reducing the use of the death penalty, and the value of facilitating public discussion about the future of capital punishment. He clearly believes that openness and greater transparency will help build public trust in the judiciary and show respect for the public’s right to access such information.

He notes that the trend towards online publicization of court documents is making secrecy about capital punishment irrelevant. On this point, he is perhaps overly optimistic. Dui Hua and other organizations that have tried to use online platforms like the Supreme People’s Court’s national database of court judgments have found it seriously lacking when it comes to information about cases involving the death penalty and other “sensitive” subjects.

This suggests that the trend toward judicial transparency is already bound by pre-set limits on what information is considered “appropriate” for public disclosure. If the Chinese government were to do as He Jiahong recommends and make data about capital punishment public, it would first have to make the top-down decision to lift secrecy restrictions. The hope of a shortcut to judicial transparency through the release of court data is unlikely given such secrecy restrictions.


The Number of Executions Should be Made Public

He Jiahong

He Jiahong, professor at Renmin University School of Law. Source: Financial Times.

On April 27, 1987, a dismembered female corpse was found in the Mianjiang River of Mayang County, Hunan. After searching missing-person’s reports, identification by family members, and blood-type analysis, the police confirmed that the deceased was a woman from Guizhou named Shi Xiaorong who had been missing for a month after working at a local hotel.

After several months of investigation, police determined, based on the manner in which the culprit had dismembered the corpse that the killer was a butcher named Teng Xingshan… On December 6, police placed Teng Xingshan under custody and investigation. Following continuous interrogation, Teng finally “confessed.” On December 13, 1988, the Huaihua Prefecture Intermediate People’s Court sentenced Teng Xingshan to death. On January 19, 1989, the Hunan Higher People’s Court rejected Teng’s appeal, upheld the original verdict, and approved his death sentence.

In order to ensure that the death penalty is applied impartially and correctly, Chinese law mandates a special review and ratification procedure for death penalty cases, on the principle of a two-stage judicial process of trial and appeal. According to the provisions of the 1979 Criminal Procedure Law, death sentences with two-year reprieve were to be reviewed by high people’s courts and death sentences with immediate execution were to be reviewed by the Supreme People’s Court. Regardless of whether or not the defendant filed an appeal, cases involving the death penalty would all be subject to an automatic review process. In 1983, in an effort to “strike hard and fast” against criminal acts that seriously endangered public security and social order, the Supreme People’s Court delegated the power to review death sentences for homicide, rape, robbery, setting explosions, and other serious crimes to high people’s courts. To a certain degree, this led to a loosening of the review and control procedures over the death penalty. Since high people’s courts in provinces, municipalities, and autonomous regions were generally the courts hearing appeals in death penalty cases, delegation of the power to review these cases meant that the same court became responsible for hearing the appeal and carrying out the final review. The review and ratification process that had been originally intended as a way to strictly control use of the death penalty became effectively meaningless.

Teng Xingshan’s case was handled under the combined “two-in-one” process of appeal trial and death sentence approval that existed during that particular period of Chinese law. On January 28, 1989, Teng Xingshan was executed by gunshot. However, that wasn’t the end of the case, because the so-called “victim” was still alive and would later “come back to life.”

In 1993, Shi Xiaorong finally made it home to Guizhou after having been abducted and trafficked to Shandong. When she heard about the Teng Xingshan case, she said that she didn’t even know Teng, and certainly did not have any “dubious relationship” with him. She even wrote to the Hunan court, asking it to revoke its mistaken judgment that she had “dubious relations” with Teng Xingshan, had been “murdered” by him, and demanded compensation for her reputation damage. But there was no response from the court. Shi now has a new life and no longer cares about an old case that has nothing to do with her.

News that the “dead had come back to life” eventually reached Teng Xingshan’s family. Teng’s parents had both died not long after their son had been executed. His brother figured that because their family was poor and ordinary they should not oppose the government. Not wanting to make trouble for himself, he decided not to mention the matter to anyone outside the family. In 2004, Teng Xingshan’s daughter Teng Yan had already grown up and worked as a migrant laborer for many years. After she learned the truth about what had happened, she and her younger brother Teng Hui, with help from a lawyer, filed a motion for appeal with the Hunan Provincial Procuratorate and Hunan High People’s Court. On October 25, 2005, the Hunan Higher People’s Court ordered a retrial in Teng Xingshan’s homicide trial and formally acquitted him of the charges. Teng Yan and Teng Hui received state and other compensations in the amount of 666,660 yuan (approximately US$85,000 at the time).

At the time, the National People’s Congress Legislative Affairs Commission was organizing experts and scholars to study ways of reforming the Criminal Procedure Law, and the death penalty review procedure was one of the areas that everyone was paying close attention to. There’s no question that the Teng Xingshan case played a role in pushing forward reform of the death penalty review system. The Supreme People’s Court decided from January 1, 2007, to take back the authority to review death sentences in all cases.

It’s now been 10 years since the reform of the death penalty review system. I was recently asked how I’d evaluate this reform. I said that it’s certainly been very positive, but I would have a hard time saying for sure. I believe that, since the power to review death sentences was returned to the Supreme People’s Court, the death penalty has definitely been applied with much greater strictness, in greater accordance with the rules, and in a more uniform manner. And the number of executions has certainly also decreased by a great deal. But because I don’t know the specific details, it’s impossible to comment in an objective and precise way.

In China, the number of executions seems to be treated as a kind of “state secret”. Those in the know remain tight-lipped on the subject, while those on the outside let their imaginations run wild. In my opinion, there’s no reason to treat the number of executions as a “state secret.” All death sentences in China are handed down and executed openly and in accordance with the law. It’s all perfectly open and aboveboard—executions are not carried out in secret or indiscriminately. Why does the government choose to be so secretive and why is it afraid of keeping the public informed? Disclosing the number of executions will not stain the reputation of the judicial organs or lead to social unrest. Tempered by their experience of numerous wars and disasters, Chinese people surely are psychologically resilient enough to face up to the number of executions!

On this point, policymakers ought to abandon their antiquated ideas of closed-door justice and embrace the modern judicial norms of transparency. Practical experience shows that openness is the best publicity and offers the best route to foster public trust. Publishing execution numbers also demonstrates judicial organs’ respect for citizens’ right to access information (zhiqingquan).

Actually, the Chinese judiciary has already made progress on this front, as court verdicts have begun to be published online! As a technical matter, when court verdicts are all online it won’t be that difficult to use “big data” technology to tally up the number of executions. Even if officials don’t make it public, the public can still find out. Therefore, I recommend that the Supreme People’s Court choose the right moment to begin publishing the number of executions. This can demonstrate the Chinese government’s resolve and sincerity in facing up to capital punishment and promoting civilized justice.

At the present time, there are more than 140 countries and regions in the world that have abolished the death penalty either by law or in practice. This shows that abolishing the death penalty is the general trend of human society because it is in line with the general spirit of humanitarianism and civilized justice. Furthermore, abolishing the death penalty is an effective way to prevent wrongful executions of innocent people. For judicial personnel, “no unjust treatment, no indulging wrongdoings” is but a beautiful tale/lore. Police, prosecutors and judges aren’t supernatural beings, and making the incorrect decisions when evidence is lacking is something that cannot be entirely avoided. Therefore, to prevent further miscarriages of justice in which innocent people are mistakenly put to death, we should seriously consider abolishing capital punishment.

I am deeply aware that China cannot abolish the death penalty at the current time, but we should have an earnest discussion about the issue and, through our efforts, make more of our fellow Chinese understand that the death penalty is not perfectly justified. Our government ought to make a solemn pledge to the world that China will make an effort to abolish the death penalty and that it will start by making the number of executions public so that the world can see the progress of China’s death penalty policies. After several years of continued hard work, China will go from “executing fewer” to “no executions” to full abolition of capital punishment, once again making China one of the most civilized, humane, and harmonious countries in the world!