Wednesday, July 2, 2014

Is Detention Center Law Enough to Prevent Police Abuse?

A cell inside Zhejiang Zhoushan Detention Center, July 2013. Image credit:

Wrongful convictions and other miscarriages of justice have been the subject of intense scrutiny in China over the past several years. When details emerge of, for example, a person who has been mistakenly convicted of a crime he did not commit or detainees mysteriously dying inside detention facilities, these cases can easily become sensational news. They can also become opportunities for members of the public to vent anger over arbitrary and abusive actions taken by law enforcement authorities who are under strong pressure to fight crime effectively and efficiently in the name of preserving stability.

More often than not, individual cases are symptomatic of institutional flaws and weaknesses in the Chinese criminal justice system. Awareness of these flaws, if left unaddressed, threatens to undermine public confidence in China’s legal system, which in turn reflects badly on China’s political leaders. This, then, creates an opportunity to push harder for reforms to the legal system and, in some cases, overcome resistance from certain sectors who have a vested interest in maintaining the status quo.

When it comes to the problem of torture and abuse in China’s pre-trial detention centers, there has been no shortage of expert opinion about how reform ought to proceed. Previous attempts to regulate these facilities by replacing outdated administrative regulations with national legislation have been stymied, however, despite support from the highest levels in China’s government. Although there is widespread consensus about the desirability of placing pre-trial detention centers under the management of judicial administration authorities (who already manage most of China’s other custodial facilities) and of breaking the current tendency of the police to use pre-trial detention as an instrument of solving crime, such an institutional rearrangement would have practical implications for the “balance of power” inside the criminal justice system. Moreover, by constraining the ability of police investigators to “dig for additional crimes” among detainees, detention center reform could have a significant impact on the perceived effectiveness of China’s law enforcement authorities.

These and other issues were recently explored in an article published in China Youth Daily. The article notes that the Ministry of Public Security has taken the lead in drafting new legislation to regulate pre-trial detention centers. This suggests that long-awaited reforms to the system may be imminent. Experts surveyed on the subject express optimism about the prospects for specific reforms to be integrated into the new legislation, but there is also an undercurrent of disappointment. More far-reaching proposals appear to be off the table, and for the time being at least, China’s police seem poised to retain control over pre-trial detention.

Among the experts interviewed by China Youth Daily was Cheng Lei, deputy director of the Center for Criminal Procedure and Reform at Renmin University of China. Professor Cheng partnered with Dui Hua to conduct research at Chinese women’s prisons and detention centers last year as part of our women in prison symposium. During his interviews, incarcerated women complained most about insufficient family contact. In practice, family visits are prohibited for people in pre-trial detention.

Can a Detention Center Law End “Death by Blind Man’s Bluff”

Xu Xiaotong
China Youth Daily, May 14, 2014

“Coercion of confessions through torture, jailhouse bullies, detention beyond legal time limits, and digging for additional crimes” are four major abuses of the current detention center management system. The 2012 revisions to the Criminal Procedure Law established provisions that prohibit coercion of confessions through torture and forcing self-incrimination and require exclusion of illegally obtained evidence and full audio-visual recording of interrogations. But these are all missing from the Detention Center Regulations. A Detention Center Law being drafted by the Ministry of Public Security will remedy this, possibly ending incidents like “death by blind man’s bluff” and “death by drinking water” that have aroused such public doubt.

At a seminar held at the Institute of Law of the Chinese Academy of Social Sciences in April 2014, Director General Zhao Chunguang from the Department of Prison Administration at the Ministry of Public Security (MPS) revealed that the ministry is in the process of drafting a Detention Center Law (DCL).

Following that, scholars under the MPS said that the formulation of the DCL is focused on incorporating detention centers’ years of reform experience and bringing them into line with the new Criminal Procedure Law (CPL) in order to better serve the entire criminal justice system.

Consensus on Detention Center Legislation

The current Detention Center Regulations were issued 24 years ago in 1990. Since then, China’s CPL has undergone two major revisions in 1996 and 2012.

These antiquated regulations are no longer in sync with the CPL.

Fan Chongyi, honorary director of the Criminal Procedure Research Center at China University of Political Science and Law, gives an example: “Now we call them ‘criminal suspects.’ At that time, they were called ‘criminals.’”

The 2012 CPL revisions established mechanisms to prohibit coercion of confessions through torture. Among these are provisions that prohibit forcing self-incrimination, exclude illegally obtained evidence, and stipulate full audio-visual recording of interrogations. But these are all missing from the Detention Center Regulations.

Fan Chongyi believes that, whether in terms of terminology or content, the Detention Center Regulations have already fallen behind the needs of the current era. He also says that another principal feature [of the legislation] will be to sum-up and regularize the reform experiences of the past several years.

In 2009, Li Qiaoming was beaten to death by a jailhouse bully while detained at the Puning Detention Center in Yunnan Province. The detention center claimed that Li had died while playing blind man’s bluff with other detainees. Following this, there were a series of unnatural deaths in detention centers, leading public opinion to focus attention on detention centers.

Under scrutiny from all sectors, the MPS began carrying out reforms to the detention center system. Cheng Lei, deputy director of the Center for Criminal Procedure and Reform at Renmin University of China, told China Youth Daily that to date the MPS has already issued around 200–300 normative documents related to detention centers, with no shortage of highlights.

At the end of 2013, the Henan High People’s Court instituted a reform of its trial process whereby defendants are not required to wear “prisoner uniforms” when appearing in court. Cheng Lei notes that, many years ago, internal MPS rules concerning detention centers had stated that detainees could choose their own clothing when appearing in court. But these rules did not carry the force of law; therefore, it was necessary to upgrade them into law and routinize this practice.

In October 2013, the 12th National People’s Congress (NPC) Standing Committee announced its legislative agenda for the coming five years, and the DCL was among the 68 pieces of draft legislation listed therein.

Actually, the MPS began researching how to revise the Detention Center Regulations as early as 2000. In December 2008, the second Central Plan for Legal System Reform clearly called for “perfecting legislation related to detention centers and improving the mechanisms for procuratorial monitoring of detention centers.” These then became legal-system reform tasks assigned to the MPS to take the lead in implementing with assistance from the State Council Legislative Affairs Office and other bodies.

In 2011, the revision plans for the Detention Center Regulations were basically ready, but in the end, they were never passed.

Fan Chongyi told China Youth Daily that the revisions were not passed because of a recommendation from the Legislation Committee of the NPC Standing Committee. The Legislation Committee considered that, according to the provisions of the Legislation Law, coercive measures and procedural institutions concerning restriction of individual freedom can only be enacted through legislation and this legislative authority cannot be delegated to the State Council.

For this reason, revision of the Detention Center Regulations was temporarily put on hold.

Cheng Lei also believes that it would be inappropriate for legislation concerning detention centers to continue to take the form of administrative regulations. He contends that only administrative organs can be bound by State Council regulations, whereas detention centers must also interact with judicial organs like the procuratorates and courts.

Fan Chongyi told China Youth Daily that the MPS began drafting work on a DCL a year ago and has now completed a preliminary draft. Cheng Lei believes that there is basic consensus about the content of the detention center legislation but that its progress will depend on whether the State Council Legislative Affairs Office, which is taking the lead, has enough legislative resources to see it through.

Debate over “Combining Investigation and Detention”

On the subject of detention center legislation, what one hears most from criminal justice experts and lawyers are calls for detention centers to be stripped away from the public security bureaus.

According to the current Detention Center Regulations, detention centers are units of governments at the county level and above that are managed by public security organs. Under this kind of system, detention centers serve the interests of handling cases. They have turned into combined investigation-custody units—that is, they serve the purpose of case investigation.

Professor Meng Zhaoyang of the People’s Public Security University of China has written that, in several seminars discussing the Detention Center Regulations in 2010, scholars all maintained that “coercion of confessions through torture, jailhouse bullies, detention beyond legal time limits, and digging for additional crimes” were four major abuses of the current detention center management system, the causal root of which was the investigation-custody combination.

According to Fan Chongyi, one of the goals of the current legislation is to transform thinking from the notion that detention centers should serve the interests of case investigation to [the notion that they should serve] an impartial position in service of the criminal process. “If you don’t take proper custody and beat everyone to death, how can the criminal process proceed?” he asks. “When it becomes common practice to coerce confessions and beat people during interrogation, how can you safeguard the criminal process?”

The newest recommendations come from the Zhejiang High People’s Court. According to a report in Qianjiang Evening News, Qi Qi, president of the Zhejiang High People’s Court, summed up the characteristics and lessons of wrongful convictions as part of the work report delivered to the second plenary session of the 12th Zhejiang Provincial People’s Congress in January 2014. During his report, Qi also recommended the “separation of investigation and custody.”

But there are some practical obstacles to transferring management of detention centers to the judicial administration authorities. Most detention centers are located at the county level, explains Fan Chongyi. If detention centers are transferred too suddenly, the county-level judicial administration authorities “might not have the personnel, budget capacity, or material resources to keep up.”

Furthermore, Cheng Lei points out that it would be easy to fix many of the problems facing detention centers under public security management. The institutional bottlenecks that inhibit development of detention centers do not all originate in the public security organs; rather, they come from other institutions. “For example,” he says, “[they are the result of the] finance, housing, civil affairs, and health [institutions]. Detention centers are spaces in which people live. It’s necessary to deal with many different aspects, and this depends on the public security organs’ ability to coordinate with each of these institutions.”

Beginning in 2009, the MPS undertook a series of reforms to strengthen the neutral position of detention centers. Fan Chongyi believes that, after five years of reform, they have gradually begun to take on an internal functional neutrality. For example, the MPS requires that responsibility for management of detention and investigation at the county and prefectural levels be divided between two separate deputy public security heads. In this way, there develops a kind of mutual constraint at the leadership level.

A scholar who has participated in several discussions on the problems facing detention centers told China Youth Daily that the biggest obstacle preventing the neutrality of detention centers is “digging for additional crimes.” This refers to the additional questioning and investigation of offenders being held in detention centers or prisons in an effort to uncover new facts or leads related to crime. Objectively speaking, many cases are solved through digging for additional crimes.

According to statistics published in the 2008 China Law Yearbook, more than 600,000 leads related to additional crimes were dug up in public security detention facilities nationwide, from which more than 300,000 criminal cases were solved—12.6 percent of all cases solved by public security organs nationwide that year. For this reason, detention centers have been criticized as the “second front” for public security investigation.

On this subject, Cheng Lei has suggested the possibility of reforming detention center management following the proposal in recent legal system reforms to unify the management of local courts and procuratorates under the provincial level. In other words, provincial-level public security departments would manage all detention centers, enabling them to break free from management by county- and prefecture-level public security units. “This is because the pressure to solve cases comes mainly from the local level,” Cheng says. “In this way, there would be a lot less pressure on the heads of local detention centers.”

Another of his recommendations would be to set up a custodial enforcement authority that would be responsible for managing prisons, detention centers, drug treatment centers, and other custodial enforcement units.

On this point, however, scholars involved in the process told China Youth Daily that the draft being proposed by the MPS would not make major changes to the institutional structure of detention centers.

Opening up the Closed Doors

Apart from an overall change in the way of thinking, detention center legislation is also being directed toward the protection of rights and openness and transparency.

Cheng Lei’s Center for Criminal Procedure and Reform at Renmin University of China is working with the MPS Department of Prison Administration to carry out pilot reform projects in detention centers throughout China. Two such projects concern systems for carrying out inspections of detainees and handing detainee complaints. In the former project, ordinary people are selected to serve as specially invited inspectors authorized to enter detention centers at any time to meet with detainees and carry out spot inspections. In the latter project, individuals from all sectors of society are invited to form a complaints committee to handle major and difficult complaints raised by detainees.

Cheng says that the results from these projects over the past two or three years have been good and have helped make detention centers more open and transparent.

Another area [awaiting reform] is the problem of pre-trial visitation [by family members]. In China, once criminal suspects are taken into custody the earliest they see their family members is at trial. Cheng Lei notes that, actually, the law has no provision prohibiting [earlier] visits. “The detention centers’ own rules state that you must first seek approval from the unit handling the case, but the unit handling the case definitely won’t permit visits in order to facilitate its own investigation.” Because the legal provisions are not clear on this, Cheng believes, there are deviations in enforcement that lead to detainees being deprived of their lawful rights. This is a problem, he contends, that the current round of legislation should try to overcome.

Another area of reform is the strict execution of offsite transfers. According to Cheng Lei, coercion of confessions through torture usually takes place prior to arrival at the detention center or during temporary transfers outside the detention facility. Now, these temporary releases must first get the signed approval of the principal person in charge at the local public security bureau, and [the law] requires that detainees be returned the same day and prohibits them from being held overnight. Moreover, [detainees] must be given physical examinations before they leave and upon return to the facility.

Even though the results of these reforms have been positive, there remain concerns. Can the good intentions of the MPS be implemented in the more than 2,700 detention centers throughout the country? Cheng Lei is not optimistic: “No matter how good central policies might be, public security bureaus are under pressure when they need to solve major or important cases. When they ask a detention center to assist in the investigation, what can the head of the local detention center do?”