Monday, August 16, 2010

Op-Ed: "Is Mercy Coming to China?"

The opinion piece below by Executive Director John Kamm was published in the August 16 edition of The Washington Post. Kamm points out that China has made strides in developing a more humane criminal justice system, particularly with changes that have curtailed use of capital punishment. Changes include new rules against using confessions obtained by torture, strict regulation of the market for transplanted organs, proposals to reduce the number of crimes that carry the death penalty, and a general prohibition on the shaming of criminal suspects.


Is Mercy Coming to China?

John Kamm
Executive Director
The Dui Hua Foundation

In a surprising response to public protests, the Chinese government recently prohibited police from publicly shaming criminal suspects through such devices as parades, used most controversially for parades of prostitutes. This is the latest in a series of developments that portend a more humane justice system, most notably in the area of capital punishment.

Hearing the news last month, I was reminded of scenes I encountered while traveling through the countryside outside Guangzhou late in the summer of 1983. China's "Strike Hard" campaign was underway; it was the first of many efforts to address what Chinese leaders saw as an alarming growth in lawlessness—and dissent. In August 1983 the authority to execute people was transferred from the Supreme Court in Beijing to provincial officials. Thousands were executed by the next spring festival, six months on.

As I passed through a small town, a man and his two sons, each tilting forward from the weight of the large white boards strapped to their backs, were driven past, en route to an execution ground. The boards proclaimed their death sentences; the men's arms were tied behind them. I remember the elder screaming his innocence as a throng of feral youth rushed ahead to get in position to witness the shootings. Farther up the road I encountered another execution scene, this time in a sports stadium with a throng of enthusiastic onlookers.

China's active use of the death penalty has long sparked international discomfort, particularly as evidence has mounted that the threat of capital punishment does little to deter crime. The official position is that someday China will abolish the death penalty but that "conditions aren't right" to do so now. Yet as long ago as 1984, the Chinese government forbade the public parading of prisoners who were about to be executed. Such spectacles remained commonplace, however, especially in the countryside, prompting Beijing to issue regulations against public executions in 1986. Rumors of executions in sports stadiums plagued China's bid for the 2000 Olympics, and when bidding for the 2008 Games, Beijing made clear that public executions were not permitted.

Ten years ago, China was executing more than 10,000 prisoners a year. The human rights group I direct estimates the annual rate to be less than 5,000 now, a reduction due in part to President Hu Jintao's effort to develop a "harmonious society"—and in part to withering criticism at the United Nations and in the human rights dialogue with Europe. China still executes more people every year than the rest of the world combined. Today, executions generally take place in specialized chambers or vans, away from public view. Lethal injections, as opposed to gunshots, are increasingly used.

Last month, the day before the ban on publicly shaming criminal suspects was announced, news began circulating in Chinese media that the National People's Congress would consider amending the criminal code. Reforms were said to include reducing from 68 the number of crimes punishable by death, as well as the age at which convicted criminals can be executed. If such reforms are enacted, nonviolent crimes in China will, for the most part, be exempted from the death penalty.

The proposals are part of a movement aimed at reining in the indiscriminate use of the death penalty. In late July the Chinese Supreme Court tightened rules on introducing evidence obtained by torture, particularly in death penalty cases. It is not clear whether this will be effective in curbing the rampant torture used to obtain confessions in capital cases. The media have exposed a number of cases in which people were wrongfully convicted of capital crimes based on confessions obtained by torture, and a number of death sentences handed down in corruption trials are often said to be politically motivated.

While many have thought the death penalty is invoked to deter crime, there is another reason capital punishment reached such astonishing levels in China. For years organs were harvested from executed prisoners. An August 2009 Ministry of Health statement acknowledged that 65 percent of the 10,000 transplants in China involved organs from executed prisoners. Before China's Supreme Court reasserted its right of review over death sentences in 2007, it was not uncommon to find arrangements linking execution grounds to hospitals performing transplants, often for overseas clients. Now, transplantation of prisoners' organs is subject to strict regulations.

In many respects, China's human rights record falls far short of international standards. But important progress has been made in reducing capital punishment. When Hu took office as Communist Party chairman in 2002, the country was executing as many as 12,000 convicted criminals a year. The annual number of executions could be down to roughly 2,000 by the time Hu leaves office at the end of 2012. Opponents of the death penalty will argue, passionately and correctly, that that number is still a human rights violation of the most serious kind. But the sharp drop in executions is a positive step toward the government's goal of ensuring that only "the most vile and serious crimes" are punishable by death—and its stated goal of eventually abolishing the death penalty in China.

Sunday, August 15, 2010

A Counterrevolutionary's Long Road Home

On June 27, 77-year-old Ou Shu (欧树) woke up in the suburbs of Kunming, ate breakfast, changed into a brand-new navy suit, packed all of his worldly belongings into a small valise, and then traveled nearly four hours westward by car to Midu County, the birthplace he had not seen in more than half a century.

This was no ordinary homecoming for Ou Shu. Two police officers accompanied him on his journey to Midu, and the group was met on arrival by officials from the local police station. The frail man about to enter a local old-age home had just been released from Guandu Prison, after having spent his entire adult life behind bars as a “counterrevolutionary.”

On August 4, a team of reporters from Guangzhou’s Southern Metropolis News and its sister paper in Kunming, the Yunnan Information News, published a lengthy feature article on Ou’s remarkable story, one that raises numerous questions about how China ought to treat its elderly and most disabled prisoners and highlights the impact of systemic discrimination against political prisoners in China.

In the Blink of an Eye, Four Years Turns to Life Imprisonment

Ou Shu was 20 years old in November 1953 when both he and his father were arrested on charges of being members of Yiguan Dao, a syncretic sect with roots in China’s long history of popular, millenarian religious movements. Soon after the Chinese Communist Party took power in 1949, sectarian religious movements like Yiguan Dao were targeted as relics of China’s feudal past. Yiguan Dao was condemned in particular as being composed of individuals with bad class backgrounds who were suspected of being Nationalist agents.

Under the provisions of the 1951 “Regulations of the People’s Republic of China for the Punishment of Counterrevolutionaries,” sect members were subject to execution or life imprisonment, but Ou Shu was given a relatively light sentence of four years and sent to a “reform-through-labor” farm. At the end of those four years, however, he was accused of “resisting reform, playing ignorant, holding fast to reactionary positions, and having extremely antagonistic ideas”—a judgment that may have been influenced by the ongoing campaign against “rightists” going on throughout the country at the time—and given a 15-year sentence extension.

A year later, Ou was again accused of maintaining his reactionary beliefs, as well as theft, harassing women, and attempting escape. Sentenced this time to life in prison, he was transferred to a maximum-security facility on the outskirts of Kunming that primarily housed serious drug offenders, and it was there he would remain for almost 50 years.

Clemency Repeatedly Denied

There is evidence to suggest that some of the behavioral problems contributing to Ou Shu’s sentence extensions may be attributable to mental illness. Records show that the provincial psychiatric hospital diagnosed him with schizophrenia in both 1963 and 1972. “He lacks the expected awareness of his personal circumstances,” wrote one evaluation. “Despite being punished with repeated sentence extensions, he shows nonchalance and says that he’s here to play and have fun, He speaks incoherently and his syntax is extremely illogical, showing clear signs of disintegrated thinking.” There is no indication that Ou ever underwent any form of treatment for mental illness, but prison authorities appear to have taken his apparent instability into account and were more lenient in their subsequent assessments of his behavior.

In 1980, China adopted a formal criminal code. While “counterrevolutionary sect” activities remained outlawed, prisoners serving life sentences were given the opportunity to have their sentences reduced through sentence reduction and parole. In consideration of Ou’s long incarceration, prison authorities recommended that his sentence be commuted and that he be released. However, the provincial public security officials then in charge of managing penal institutions rejected the recommendation, a decision most likely colored by concerns that showing clemency for a counterrevolutionary prisoner could be politically dangerous.

In 1997, “counterrevolution” was removed from China’s Criminal Law and the Supreme People’s Court issued additional regulations governing the process of granting sentence reductions and parole. In 1999, prison authorities recommended that Ou Shu’s life sentence be reduced to a fixed-term sentence of 10 years, but the provincial high court took a more cautious approach and reduced his sentence to 18 years’ imprisonment—which meant that Ou would be due for release in 2017.

Without Family, No Medical Parole

In 2005, Ou was transferred to a prison cellblock dedicated for elderly and infirm prisoners. His remaining sentence was gradually being whittled down through small reductions every two years, but his physical and mental condition had deteriorated and a younger prisoner had to be assigned to care for him.
Ou Shu in 2010 (L) and at the time of his arrest, in 1953 (R)
In 2008, Ou was transferred to Guandu Prison, and authorities there considered him a good candidate for medical parole. But when they contacted the local police station back in his hometown, it was discovered that he had no living close relatives and thus, under the relevant procedures, could not be released. So he remained at Guandu Prison until a final sentence reduction in June 2010 brought an end to his long incarceration. Ou was finally a free man, but now what?

Authorities arranged for Ou to return home to Midu County and stay in an old-age home not far from the village where he grew up. At first, Ou seemed happy to return to familiar surroundings, but the sudden transition to freedom took a toll on him, and he became more and more senile and unable to care for himself. The director of the old age home sought out Ou’s distant relatives to see whether they would be willing to help take care of him, but they demurred. They had taken care of Ou’s father in his old age and had all assumed that Ou himself had been dead for years, even paying tribute to him each year during the Tomb Sweeping Festival.

The husband of an elderly cousin put it simply: “The government should have either released him earlier or kept him locked up until he died of old age. Releasing him now is a burden to both our family and to society.”

How Many More Prisoners Like Ou Shu?

According to Chen Xingliang, an expert on China’s criminal justice system, most individuals sentenced to life imprisonment actually wind up serving between 12 and 22 years in prison, with the average being about 15 years. Ou Shu’s experience may seem like an anomaly, but it is an anomaly that can nevertheless be understood in terms of fairly regular practices within China’s criminal justice system.

Ou Shu was branded as a political criminal at the age of 21, and the stigma of that charge had a lasting impact on his life. During the Maoist period, his erratic behavior was interpreted as evidence of his reactionary nature and danger to society, leading a four-year sentence to grow into life imprisonment. Even as China began taking steps to implement rule of law in the 1980s, the taint of being a “counterrevolutionary” served as an obstacle to gaining clemency. With political prisoners officially subject to “strict handling” for the purposes of sentence reduction and parole, prison authorities simply couldn’t reduce his time behind bars fast enough, and Ou was overtaken by the ailments of old age.

Prison authorities also ran into obstacles with the current medical parole regulations, which normally require family members to take responsibility for an ill prisoner before he or she may be released. Prisons in some provinces, such as Sichuan and Jiangxi, have been making more use of medical parole as a way to release elderly and sick prisoners who are no longer a threat to society, but these practices have come under some criticism in China over allegations that prison authorities are merely “dumping” these prisoners and shifting the burden of their care back to their families.

One wonders how many other prisoners like Ou Shu there might be in China. Members of “counterrevolutionary sects” were targeted again during the “Strike Hard” campaigns of the early 1980s and many were sentenced to life imprisonment. It is assumed that most have either been released or passed away, but there is no easy way to determine their fates without requesting an accounting from the Chinese government on a case-by-case basis.

In recent years, Dui Hua has highlighted some cases that, while not involving incarceration for more than 50 years, share many other similar features with that of Ou Shu:

Jiang Cunde was sentenced to life imprisonment for counterrevolution in 1987, diagnosed with schizophrenia and released on medical parole in 1993, but subsequently sent back to prison in 1999 for breaking the terms of his parole. His life sentence was commuted to a 20-year fixed-term sentence in 2004, but there has been no additional clemency since then despite acknowledgement that Jiang continues to suffer from psychotic episodes.

Two individuals originally sentenced to suspended death sentences for acts carried out during the June Fourth demonstrations in Beijing also remain behind bars under similar circumstances. Jiang Yaqun, aged 71, had his 1990 sentence for “counterrevolutionary sabotage” commuted to 19-1/2 years’ imprisonment in 1995. Described as suffering from “mild mental retardation” (most likely senility), Jiang has received several sentence reductions but still has more than three years left to serve. Miao Deshun’s 1989 sentence for arson was eventually commuted to 20 years’ imprisonment in 1998, but he has received no clemency since then. The 46-year-old Miao, who has been acknowledged to suffer from mental illness, is due for release in 2018—nearly 30 years after his arrest.

There are of course many other cases involving political prisoners serving comparatively shorter sentences who have been denied medical parole despite serious illness—Li Wangyang or Hu Jia, for example. Others like Wang Rongqing and Zhang Jianhong saw their medical conditions deteriorate to extreme states before being granted medical parole. The conclusion is stark: the humanitarian measure of medical parole is essentially beyond reach for most of China’s political prisoners.

It would thus be a mistake to see Ou Shu as an anomalous case of someone who simply “fell through the cracks.” He was the victim of a criminal justice system that arbitrarily employs political punishments and that continues to discriminate against those subjected to such punishments. Ou’s life is perhaps the most extreme consequence of this situation, but he is by no means the only such victim. ■

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Friday, August 13, 2010

Reflecting on the US Juvenile Justice Delegation: A Public Defender's View from the Chinese Juvenile Courthouse

After the US Juvenile Justice Delegation to China, Dui Hua invited Ms. Patricia Lee, a delegation member and the managing attorney for the Juvenile Division of the San Francisco Public Defender's Office, to share some observations from the program. Dui Hua would like to thank Ms. Lee for her piece (below) about “mock trial” proceedings conducted by Chinese and American participants in Qingdao, Shandong Province.


     In May 2010, as the San Francisco Juvenile Justice Delegation took their seats in the Qingdao Juvenile Court gallery for the mock trial presentation of the Chinese People’s Supreme Court, the Court Police Officer, dressed neatly in starched uniform, loudly and clearly called the Court to order and announced the ground rules for the audience:

                              1. There will be no shouting, nor applause.
                              2. No one is permitted to be under the influence.
                              3. There will be no smoking, nor spitting.
                              4. There will be no recording, videos, or photography of the proceedings.
                              5. There will be no entry into the trial area.
                              6. No phones are permitted.

     Being the only defense attorney present in the gallery and knowing that we were just at the start of our exchange, I carefully heeded these rules.

     I gazed and marveled at the new shiny circular court room table where all of the players, including the defendant and his father, were quietly sitting. It was clear who was running the show. The three collegiate judges sitting at the front of the circular table began the colloquy with the head judge sternly reading the charges to the juvenile defendant. To the right of the judges sat the two prosecutors, and next to them was the 17-year-old boy defendant, Hu, head hung low in shame, and the boy’s father. Completing the circle of justice, almost two feet away, was the stoic defense attorney, sitting as quietly as the defendant.

     Upon the commencement of the proceedings, the young defendant quickly admitted his guilt in the theft of a motorbike, and expressed his remorse. Unlike US juvenile law procedure, the prosecutor produced evidence of the crime after the boy’s admission, including a photo of the stolen motorbike. In a Perry Mason moment, the prosecutor dramatically exhibited the actual screwdriver used as the boy’s tool of choice to perpetrate the theft. It came as no surprise to this defense attorney that even in China, more than half a world away from America, the methods and tools to “hot-wire” vehicles are universal among teenagers. As the judge continued her fact-gathering evidentiary hearing, she would ask the defense attorney if he had any comments on behalf of his client, to which he would respond, “No.” After the third request for defense comments, I became increasingly agitated and almost violated Rule No. 5 above, by jumping into the trial area to speak up for the visibly depressed boy. In the end, the defense attorney spoke and indicated his support of the recommended sentence to return the boy home with his father.

     Fast forward to the US delegation mock trial presentation. We conducted our hearing based on a true case in our San Francisco juvenile courts. As the public defender, I was appointed to represent our 11-year-old girl client, who had allegedly committed an assault on the pregnant mother of a student at the girl’s middle school. As often occurs when representing very young children charged with delinquent offenses, I declared a doubt as to the competency of my client in her ability to understand the legal proceedings or her ability to assist me in her defense. As I sat closely to my young client, who was visibly disturbed and physically agitated, I would speak to her quietly and embrace her to offer comfort to calm her down during the hearing.

     After hotly contested exchanges between the prosecutor and myself, our Superior Court Deputy Judge Lillian Sing and Assistant Deputy Judge Julie Tang struggled valiantly to control the back-and-forth legal arguments and objections between the district attorney and the public defender. At the close of the contested hearing, Judge Sing and Judge Tang issued opposing rulings to demonstrate the different outcomes available under California juvenile law.

    After the presentation, the packed courtroom of Chinese spectators rushed up and congratulated the American participants, claiming that it was “just like television,” and that they had found it entertaining as well as educational. As we explained to our Chinese counterparts, this is what occurs daily in the adversarial proceedings in juvenile courts throughout America.

     The role of the juvenile defender in China and the US are uniquely different. In the United States, the juvenile defender’s duty is to represent the client’s expressed interest. The defender acts as the voice of the client at every stage of the juvenile proceedings and not in the client’s best interests as determined by counsel, client’s parents or guardians, probation officer, or the judge. Counsel allows the client to be the primary decision maker to the greatest extent possible. The role of the defender is a check against the power of the state and law enforcement to protect against abuses and to ensure that the client receives due process and equal justice.

     Throughout our exchange, it became clear to me that China’s primary focus in its development of juvenile jurisprudence is in the best interests of the child through education and rehabilitation. China’s pilot juvenile courts embracing the roundtable format allows the parties to be seated at the same level of the minor defendant to provide a more comfortable setting for the minor. This format also affords the judge, the prosecutor, and even the defense attorney the opportunity to lecture and educate the minor for his delinquent behaviors. The role of the defense attorney is collaborative with the other judicial stakeholders.

     As prominently displayed in one of China’s juvenile courtroom was the slogan, “If our youth are wise, our country is wise, and if our youth are strong our country is strong.” As I left China, this sentiment will remain with me as a juvenile defender and advocate. It is a guiding principle that will serve both China and the United States well as we develop and strengthen our juvenile justice systems.

Monday, August 2, 2010

Translation: "Torture in China: Fact or Fiction?"

New rules on the use of evidence in criminal trials in China took effect on July 1, including standards for exclusion of statements made by suspects or witnesses under coercion or torture. The rules have been widely praised as an important step in the right direction, though not without concerns about how fully they will be implemented. Some of these concerns have been raised by Chinese criminal defense lawyers, a number of whom have firsthand experience in trying to get allegations of torture taken seriously by the judicial system.

Chen Youxi is such a lawyer, and one with nearly 15 years’ experience working within the criminal justice system of his native Zhejiang Province. Chen has, since becoming a lawyer in 1999, made a name for himself as a criminal defense attorney unafraid to lock horns with judges in defense of a client. Earlier this year, he defended Li Zhuang—himself a defense attorney—who had been accused of urging his client to “fabricate evidence” in a high-profile organized-crime trial by recanting a confession on the grounds that it had been extracted through torture.

In a June 16 post on his blog (translated below), Chen Youxi asks why allegations of torture are so rarely acknowledged in China’s criminal justice system; such a question is only becoming more common, given the suspicious deaths in detention—likely due to torture—that have been publicly reported. Chen concludes that a general presumption of guilt for criminal suspects—combined with lack of transparency in the criminal investigation process, procedural norms favoring the prosecution, and an insufficiently independent media—have led to a situation where it is difficult from the outside to determine whether torture in China is common (as many lawyers allege) or rare (as authorities often claim).


Torture in China: Fact or Fiction?

 Why do all court verdicts completely deny the existence of confessions coerced through torture?
Why does every case of injustice always involve torture?
Are the courts deaf and blind or are lawyers insolent?

Chen Youxi
June 16, 2010

There’s an exceedingly strange but common phenomenon in China’s current judicial system: courts’ criminal verdicts consistently reject claims of confessions extracted through torture made by lawyers and defendants, saying “no evidence was found.” Even in the case of Liu Yong, who was tortured until his leg was broken, the high court merely wrote timidly that “the confession could not be accepted [as evidence] because violations of the Criminal Procedure Law could not be ruled out” and sentenced him to a suspended death sentence. But this was then immediately changed to the death penalty after review by the Supreme [People’s] Court, and torture was never spoken of again.

Coercion of confession by torture is always carried out in a sealed environment. Three, four—even 10 or more—authorities take turns against a suspect, so it’s impossible to have “ironclad evidence” of torture. Only in cases of injustice like those of Zhao Zuohai or She Xianglin, where the “dead return home” and “admit to murder” there and then, will there be an investigation into false confessions and discovery of inhuman torture.
This is because:

1.    The suspect’s credibility has been denied, and the public won’t believe the claims of a “criminal.” Are you going to believe a criminal or believe the public security bureau and procuratorate?

2.    The people carrying out torture won’t report themselves; on the contrary, they’ll join together and insist that no coercion of confessions through torture took place.

3.    In China, a person who makes accusations in court can be “returned for [additional] investigation.” If [a defendant] makes accusations [of torture] in court, he or she can be sent back into the hands of the torturers, who can seek a [more] “solid confession” and then return [the case] for prosecution. This kind of “returning to the oven” is even more terrible, but China’s courts cooperate with the procuratorate and public security in these kinds of “re-investigations,” so many people don’t dare make allegations in court. And once you’ve admitted the charges in open court, there’s no possibility for this case of injustice to be overturned. It’s no use to file a petition, because the court will say: “This court didn’t beat or coerce you, so why did you admit the charges in open court? That shows you really did it.”

4.    The public can never see the places where torture is committed, so it’s impossible to have eyewitnesses. “Turncoat” guards who give testimony to a lawyer that they witnessed torture would either lose their jobs or be prosecuted for “false accusation.”

5.    Torture techniques have improved and interrogators are smarter, so there’s less physical abuse and more use of psychological abuse that leaves no scars or physical evidence. They can have a “wheel war” or prevent you from sleeping for nine days and nine nights or shine a big light bulb on you or strip you and spray you with cold water or pour pepper water down your throat—none of which leave any trace. Examination by an expert is no use.

6.    If there are scars, there’s no worry. The court won’t agree to an examination by an expert and will pay them no heed. The judge will rule [the scars] to be the result of the defendant “playing blind man’s bluff” or “falling out of a tree when younger” or “a bump while on holiday in Hainan.” If there are wounds after a recent beating, [the authorities] can put [the suspect] in isolation and prevent him or her from meeting with a lawyer or can “state secret-ize” the case and “refuse to approve” a meeting for six months and wait until the scars are healed before letting the lawyer meet again.

7.    Our media can be controlled, such that no one dares expose the dark side. If you don’t follow the main tune in reporting and publicly damage the image of law enforcement, the chief editor can be removed and the reporter fired. So the image is one of “strictly abiding by the law.” With 60 years of accumulated experience and protected by China’s present Criminal Procedure Law, “coercion of confessions by torture” in China is thus “harmonized” and wrapped up ever so tightly.

This is why 100 percent of Chinese criminal defense lawyers believe coercion of confession by torture is extremely serious in China, while the vast majority of the public, including high-level officials in charge of law enforcement, don’t really believe that torture is such a serious problem in China. I’ve defended some law-enforcement officials, all of whom come to realize this truth only after themselves getting into trouble and being subjected to interrogation. But they can no longer return to their position of authority, and no one will believe what they say. They can have no more influence on China’s judicial system.

This is the truth about coercion of confessions through torture in China. Is torture in China fact or fiction? Actually, everyone’s clear about this. Folks have no way of knowing [the truth] because of the asymmetry of information. But as soon as a family member gets in trouble, it usually becomes clear right away. Actually, there’s no need to be depressed: all we lack is an environment in which the truth can be spoken and a legal spirit that seeks truth from facts.