Thursday, July 29, 2010

Translation: "Perp Walks" for Petty Thieves Should Cease

On June 27, official Chinese media announced that the Ministry of Public Security will ban perp walks of prostitutes. Perp walking—the practice of publicly parading suspects or convicts in order to shame other criminals, drum up witnesses, or stir popular sentiment—is one of a variety of public spectacles that China has both relied on and worked to prohibit since the People’s Republic of China’s establishment.

China’s first Criminal Procedure Law banned public executions in 1979. Parading of the condemned was first prohibited in 1984 and again, for good measure, in 1986. Most recently, a similar notice against perp walks was issued in 2007. But, as Dui Hua’s Senior Manager for Research and Hong Kong Operations Joshua Rosenzweig pointed out this week in The New York Times, increased regulation must ultimately be supported by both political and public will.

The following piece (translated by Dui Hua) appeared in the Legal Daily in May 2009. Its author, law professor Cheng Dewen, looks at the ways in which perp walking undermines the development of rule of law in China. Although the target of the perp walk discussed by Cheng—a group of 30 suspected pick-pockets in Chongqing—differs from the prostitutes which spurred the recent ban, Cheng’s argument presages many of the comments made since Tuesday’s announcement. (This translation originally appeared in the second volume of Dui Hua’s Reference Materials on China’s Criminal Justice System, published in June 2009.)


“Perp Walks” for Petty Thieves Should Cease
Prof. Cheng Dewen
Nanjing Normal University Law School
Legal Daily, May 4, 2009

     In contemporary social parlance, individuals suspected of pick-pocketing are known as “petty thieves.” To be sure, these petty thieves are bitterly hated by people, who yell out to beat them like rats crossing the street, subjecting them to harsh beatings, parades, and public display. Rarely are they regarded with any sympathy. Recently, police in Chongqing publicly paraded 30 petty thieves in front of the public at bus stations, piers, and other public locations, asking the public to identify and report them. This action led to widespread attention in the media and has become a subject of public debate, with arguments both for and against [this treatment of the suspected thieves].
     In China, public security organs safeguard the nation’s public safety and assume the basic functions of upholding public safety and order in society and preventing and combating crime. As far as its scope of authority is concerned, Chongqing police did not exceed the bounds of their work. Parading [suspects] in the streets can be seen as an action to prevent crime, and asking the public to identify and report [suspects] can be seen as criminal investigation activity. And, as reported by the media, the police also distributed “anti-pickpocket publicity materials” to the public, which is both an act of crime prevention and legal publicity work—both of which fall under the purview of China’s public security organs. With respect to the purpose of this action, parading criminal suspects in the streets should primarily be understood as a form of deterrent to potential criminals. Asking the public to identify and report [criminals] may be aimed at investigating and verifying evidence, uncovering additional crimes, and expanding results in fighting [crime]. All of these are also part of China’s public security organs’ criminal law-enforcement function and political mission, and, with this significance in mind, these police actions can be said to be legitimate in purpose. And it is precisely because of this legitimacy of purpose that media reports and the response from a large portion of the public have been favorable to these police actions and given them a considerably high level of social acceptance.      
     Perhaps it’s because I’ve been engaged in legal research for a long time, but I still feel that, 30 years after the recovery and restoration of a sound legal system in China, what Chongqing police did really deserves some serious self-examination.
     First, these police actions target petty thieves. Perhaps the police are fully aware of their pick-pocketing activity, but these individuals are still considered criminal suspects until those acts have been confirmed by a court. In this sense, then, the actions of police should be of a criminal-investigation nature. Looking from the perspective of criminal procedure, it is hard to comprehend how parading criminal suspects in front of the public would be of much help in criminal investigations. Moreover, at this moment in China, parading suspects publicly is not a particularly appropriate method. First, public parading seriously damages the personal dignity of criminal suspects and is widely prohibited by modern societies with rule of law. Second, publicly revealing the identity of a criminal suspect during the investigative stage of a case is considered in many rule-of-law countries to be a violation of the presumption of innocence. In China, the public detention, arrest, and display of criminal suspects during the investigative phase can influence the court’s final ruling and, thus, has the effect of establishing guilt without trial and is detrimental to the conduct of a fair trial. Third, though on the surface parading suspects in the streets appears to bring relatively good social consequences by catering to the public’s psychological desires, in reality it poses a threat to the modern principle of rule of law and misdirects the formation of the public’s legal consciousness. In ancient times and around the time of the “Cultural Revolution,” it was quite common to see criminals paraded in the streets, and the average person saw this as normal. With opening and reform and China’s legal advances, parading for public display was rejected by the law but has recently been resurrected in some places. The majority of theorists have expressed concern about this. This kind of situation is disastrous both for the establishment of legal order and the nurturing of public legal consciousness.
     Second, there are definite questions about the procedural legality of police use of public parading of suspects as a means of asking the public to identify and report [suspects]. According to Chinese laws and regulations, identification [of suspects] is an act of investigation and therefore should strictly adhere to legal procedure. For example: during the investigation phase, police are required to obtain approval from a responsible person in the public security organ before conducting an identification of a criminal suspect, and the identification procedure must be carried out under an investigator’s direction. Prior to identification, the person making the identification should be questioned in detail about the suspect’s identifying characteristics, the person making the identification should be prevented from coming in contact with the suspect and be informed that he or she will be held legally responsible for intentionally making a false identification. When several people are making an identification of an individual suspect, each identification should be made separately. The subject for identification should be mixed in with other persons or items during an investigation and no hints given to the person making the identification. In cases under investigation by public security, if the person making the identification does not want to do so publicly, the identification may be carried out without revealing the circumstances of the person making the identification. If considered in light of these regulations, the actions of the Chongqing police deserve more careful scrutiny. On the one hand, there was no specified person making the identification and the police had no way of knowing ahead of time who would identify a suspect. On the other hand, the subject of the identification was also not specified; police arranged for 30 pick-pocketing suspects [to be paraded], assigning them each a number. It has been reported that during the parade, organizers provided an introduction for each suspect, which, in a certain sense, constitutes giving hints. We have no way to know the details or outcome of the identifications, but we cannot say that this identification exercise was without problems, procedurally. In a situation where neither identifier nor identified is specified, how can one guarantee the reliability of the identification? This does not merely concern questions of the quality of evidence; it also concerns issues of the criminal suspect’s defense rights.
     Third, this action by Chongqing police is essentially a campaign-style measure aimed at preventing and controlling crime, but even if it shows clear short-term success, it will be ineffective at resolving fundamental problems in the long run. As we see from the reports concerned, pick-pocketing is rampant in some parts of Chongqing, and the public hates these petty thieves to the core. For these reasons, parading them in the streets is a way to win the understanding and support of the public and display police resolve to fight pick-pocketing. But both theory and practice make clear that using deterrence alone to control crime is of limited efficacy. The only way to provide the public with real welfare and security is to establish a sustainable, effective system of crime prevention and control and improve the capacity of public security organs to prevent crime. Relying solely on special punishments alone is not nearly enough.
     Fourth, we must admit that parading criminal suspects in the streets is uncivilized, backward behavior. Crime is something that people despise, a kind of evil, but the state should not return evil with evil in responding to criminal behavior. Otherwise, its normal basis of authority to exercise power will be lost. For this reason, the public security organ, as an integral component of the organs of state power, should always act with restraint and use its brains in doing things. Pick-pocketing is not an isolated occurrence in China today, but there are differences in the way that this type of crime is handled and treated. I remember several years ago when Prof. Xu Yongkang of East China College of Politics and Law criticized some places for parading in public and publicly displaying suspects. He said that “parades” were such a rare phenomenon in Shanghai that if suspects were occasionally displayed in public, traffic would be disrupted for half-a-day and half of [the city’s] investors would run scared. It’s gratifying to think that “parading publicly” is not at all a common phenomenon in China, but it deserves our attention even if it occurs in only a few places.