Monday, December 21, 2015

China: State Security Indictments Hit Record High in 2014

Sources: Dui Hua; China Law Yearbook (various years)

China indicted more people for endangering state security (ESS) crimes in 2014 than in any year since China Law Yearbook began reporting the figure in 1999. The number of people indicted rose to 1,411, up 2 percent from 1,384 in 2013. These indictments spanned 663 cases, compared with 608 cases in the previous year.

With the uptick in indictments, the number of trials in the category that includes ESS jumped 20 percent. China Law Yearbook reports ESS trials in aggregate along with trials for dereliction of military duty and possibly other crimes. The number of trials in this category hit 1,074 in 2014, compared with 893 in 2013. Based on indictment statistics from previous years, Dui Hua has assumed that the number of trials attributed to dereliction of military duty and other crimes was negligible. Trial numbers are limited to trials of first instance that courts concluded during the year.

The ESS trial that received the most international attention in 2014 was that of Uyghur activist and scholar Ilham Tohti. He was convicted of splittism in September 2014 and sentenced to life in prison for operating a Uyghur news website. Including Ilham Tohti, Dui Hua’s Political Prisoner Database has information on 18 people tried for ESS in 2014, down from 32 in 2013 and 26 in 2012. Thus far in 2015, Dui Hua has information on nine people tried for endangering state security.

Chinese courts invariably convict and sentence those tried for ESS. Although acquittals are extremely rare, relatively light sentences are sometimes imposed. In 2014, at least three of those tried—Gu Yimin, Liang Haiyi, and Liu Benqi—were released by year end. All three were convicted of inciting subversion. Gu and Liu were tried for online posts that were critical of the Chinese government. Gu was sentenced to 1.5 years in prison and Liu to three years, but both were released due to time served in detention. Liang was likely tried for online posts and her involvement in public protests. Detained in 2011, Liang was released after a court sentenced her to a suspended sentence of two years.

ESS covers a range of political crimes including subversion, inciting subversion, splittism, inciting splittism, espionage, and state secrets violations. While it is considered the most serious category of political crimes—and is the only category that carries a mandatory supplemental sentence of deprivation of political rights—ESS crimes are not the only legal avenue used to punish activists. In recent years, authorities have also used “disturbing social order” crimes like “picking quarrels and provoking troubles” and economic crimes like fraud and operating an illegal business to put away critics.

“The number of individuals indicted for ESS crimes reached an all time high in 2014, a striking and troubling development,” said Dui Hua Executive Director John Kamm. “Given ongoing campaigns against protest and dissent, especially in the western region of Xinjiang, the number of ESS indictments and trials are unlikely to fall in 2015.”

Thursday, December 17, 2015

Chinese Court Amends Charges Against Guo Feixiong Before Conviction

Democracy activists Guo Feixiong (a.k.a., Yang Maodong, pictured left) and Sun Desheng (pictured right) were recently sentenced to prison terms. Credit: Weiquanwang

On November 27, Guangzhou’s Tianhe District People’s Court sentenced veteran democracy activists Guo Feixiong (a.k.a., Yang Maodong) and Sun Desheng to six years and two and a half years’ imprisonment, respectively. The court convicted Guo and Sun of public order offenses connected to street protests carried out in Guangzhou and other cities in the early days following Xi Jinping’s accession to power. The crackdown on the “Southern Street Movement,” along with the repression of the New Citizens’ Movement, signaled the new leadership’s resolve to curb grassroots activism, clamp down on criticism, and take control over the political agenda.

As in many other politically motivated criminal cases in China, the allegations appear to exaggerate the social harm caused by the defendants’ actions and ignore rights to free speech and association nominally protected under China’s constitution. Moreover, violations of due process plagued the prosecution of Guo and Sun. These violations include prolonged pre-trial detention, obstruction of defense counsel, and numerous irregularities at trial. There have been allegations of torture and mistreatment.

There are many grounds upon which to criticize and even condemn the convictions of Guo Feixiong and Sun Desheng. In this essay, we focus on a small, but significant, aspect of the trial process: the court’s modification of charges immediately before conviction. We explain court action and inaction with the aim of further understanding China’s criminal process and some of its many weaknesses and challenges.

What Did the Prosecution Allege?

In the indictment submitted to the court in June 2014, prosecutors from Tianhe District charged Guo and Sun with “gathering a crowd to disrupt order in a public place” under Article 291 of the Criminal Law. The allegation was based on two separate sets of material facts and associated evidence.

The first set concerned three days of protests held outside the offices of the newspaper Southern Weekly in January 2013. These demonstrations followed a decision to censor a closely watched “New Year’s Editorial” that supported constitutionalism. Authorities alleged that Guo Feixiong was a chief organizer of the protests, which included speeches, signs, and banners hailing press freedom, and which attracted hundreds of participants and onlookers.

The second set of allegations surrounded a series of “flash mob” protests purportedly initiated by Guo and Sun and carried out in eight cities across China in April and May 2013. Protesters held up signs and banners demanding that officials disclose their assets as part of the fight against corruption and that the government ratify the International Covenant on Civil and Political Rights. Images of these street protests were circulated online, leading prosecutors to claim that they “created false impressions.”

What Did the Court Do?

Many accounts report that, just before it sentenced the defendants, the Tianhe District People’s Court added a charge of “provoking a serious disturbance,” which carries a heavier penalty than those under Article 291. Perhaps more accurately, the court “modified” or “amended” the prosecution’s charges. No additional facts or evidence were introduced to support the addition of a new charge during the trial. The court did, however, take issue with the prosecution’s characterization of “flash mobs” as “gathering a crowd to disrupt order in a public space.”

The court found that, based on the facts and evidence presented at trial, the defendants’ actions should have been prosecuted under the offense of “provoking a serious disturbance” pursuant to Article 293(4) of the Criminal Law. Having identified this error, the court proceeded to amend the charges and issue its verdict accordingly.

Amending the charges meant that the court could impose separate penalties and calculate a combined sentence for the protests outside Southern Weekly (gathering a crowd to disrupt order) and the anti-corruption flash mobs (provoking a serious disturbance). While the maximum penalty under the charges in the prosecution’s original indictment would have been five years’ imprisonment, after modification, the court was able to impose a sentence of between five and ten years—based on a maximum penalty of five years for each charge.

Did the Court Violate Chinese Law?

There is no explicit provision in the Criminal Procedure Law (CPL) that authorizes courts to modify the prosecution’s charges in this way. Instead, this action seems to follow from the Supreme People’s Court (SPC) Interpretation on the Application of the CPL, Article 241(2):

When the facts alleged in the indictment are clear and the evidence is reliable and sufficient but there is a discrepancy between the crime alleged and the crime found in the course of the trial, [the court] shall issue a verdict based on the crime found in the course of the trial.

This provision implies, but does not expressly state, that the court may unilaterally modify the charges under these specified circumstances.

Of course, the question remains whether it is legitimate for the SPC to broaden its powers in this way. As a constitutional matter, the use of judicial interpretations to supplement and elaborate on existing law in a generalized manner appears to exceed the authority granted to the SPC to answer concrete applications of law. As a matter of practice, however, such legislation-through-interpretation is considered legitimate, and courts treat these interpretations as equivalent to law.

In short, while the legal basis for the court’s actions is not free from controversy, practically speaking, no appellate court is likely to accept a challenge on the grounds that the court acted contrary to law.

Did the Court’s Actions Amount to an Unfair Trial?

There is little question, however, that the effect of the court’s action deprived Guo and Sun of their right to a fair trial, which would make the decision illegitimate under Chinese and international human rights law.

By unilaterally modifying the charges just before sentencing, the court deprived the defendants of their right to a fair hearing by denying them adequate time and facilities to prepare a defense. Though much of the defense lawyers’ detailed statements to the court remained applicable, the lawyers could not have anticipated the court’s modification. Thus they were not prepared to present a thorough challenge to the applicability of Article 293(4). Lawyers were instead asked to deliver opinions on the spot and were interrupted by the court when they protested.

One of the principles underlying the idea of a fair judicial hearing is the “equality of arms” between prosecution and defense. Given that criminal defendants have the power of the state arrayed against them, adequate time and facilities to prepare is an essential part of guaranteeing some semblance of parity.

Article 227(3) of the CPL states that where the trial of first instance “deprives or restricts the statutory procedural rights (fading susong quanli) of a party to the case (dangshiren),” the appellate court should remand the case for retrial. Lawyers might try to make this argument when the case is appealed to the Guangzhou Intermediate People’s Court, but if the case is retried and the charges are modified in some other way, it seems highly unlikely that the court would reach a different result.

How to Modify Charges Fairly

There are many circumstances in which a charge might need to be re-characterized in the course of a trial. A charge of homicide might fall apart on the question of the defendant’s intention and need to be modified to intentional injury. There is often ambiguity about whether a defendant caught carrying drugs was trafficking or merely transporting.

Note that in both of these examples modifications would likely benefit the defendant, as the modified offenses are less serious than those originally applied. This is not what happened in the case of Guo Feixiong. Nonetheless, even when the defendant stands to benefit from amended charges, fair-trial principles should require the use of a more elaborate procedure with more of a role for both prosecution and defense.

This is the argument put forward recently by Shandong rights lawyer Xi Xiangdong. He notes that if the prosecution had wanted to modify its indictment, Supreme People’s Procuratorate rules would have required prosecutors to first seek approval from their superiors and submit the amended indictment to the court. Then, the court would notify the defendant, and a new trial hearing would have to be held—complete with investigation of evidence, debate, and final statements from both sides.

If the court identifies the need to modify the charges, Xi says, it can make this recommendation to the prosecution. If the prosecution agrees, the process would follow as described above. If the prosecution rejected the recommendation, then the court could proceed to amend the charges if it was in the interest of justice and proper application of the law. Xi rightly insists, however, that this ought to be the exception, rather than the rule. Finally, he notes that any such decision should only be made after giving due consideration to both prosecution and defense in the form of a hearing where both sides can confront each other’s opinion.

To be sure, such procedures would necessitate extra time and complication for all parties involved. Considering that the court let a year elapse between trial and verdict in the case of Guo Feixiong and Sun Desheng, there really is no excuse for not taking even this small step to provide a measure of protection to the fair-trial rights of the defendants.

Monday, November 30, 2015

Ethnic Nationalism Along the China-Burma Border

A map indicating the location of the Wa population within China's Yunnan province, which borders Burma.

Ethnic Nationalism Along the China-Burma Border

China watchers are well aware of ethnic unrest involving Tibetans and Uyghurs, but little is known about independence movements and cultural rights activism among other ethnic minorities. Dui Hua research has explored the suppression of Christianity among China’s ethnic Koreans. Now, based on public security records obtained by Dui Hua (PDF 1.2MB), we expand our understanding of this topic to include the Wa and Lahu.

The Wa and Lahu primarily inhabit mountain villages along the border between China's Yunnan Province and Burma. Today there are an estimated 1.2 million Wa people worldwide, with 800,000 in Burma and 400,000 in China, and 800,000 Lahu, of whom more than half reside in China.

In the latter half of the twentieth century, authorities in Yunnan's Simao Prefecture (or present day Pu'er City) targeted the Wa and Lahu people in efforts to suppress nationalistic sentiments. Official sources trace ethnic nationalism among these groups to Zhadie (扎谍), a Wa man born in a contested territory between China and Burma in 1924. Records describe him as an overseas separatist instructed by the United States and Kuomintang to carry out counterrevolutionary activities on the mainland. (Some Kuomintang forces refused to retreat to Taiwan and instead withdrew to Burma after the Communist Party established the People’s Republic of China in 1949.)

Calling himself “old Buddha,” Zhadie saw increasing support among Burmese Wa and Lahu after the end of World War II. In 1950, he began sending his followers to Pu’er and Lincang, Yunnan, to spread the idea of establishing a Wa-Lahu nation.

Zhadie argued that Wa-Lahu independence was necessary to free the two ethnic groups from Han Chinese oppression. According to government records, one of his slogans was: “Han Chinese repress Wa. Exterminate the Han.” Early on, Zhadie likened himself to the Mao Zedong of the Wa and Lahu people. In the 1980s, he compared himself to the Dalai Lama, as the spiritual leader of Wa and Lahu in China and Burma.

The number of Zhadie's supporters is unknown. Spotty government records state that as many as 3,500 people from more than 30 Wa villages gathered in Yunnan in March 1959 to perform folk dances led by Zhadie's followers and to listen to their nationalist speeches. The government responded by saying that the villagers had been “deceived” and by reinforcing patriotic education in the area.

Between 1950 and 1961, government sources document 48 instances of infiltration associated with Zhadie. Eleven were small-scale armed rebellions or disturbances that were swiftly suppressed by the much larger joint forces of the People’s Liberation Army (PLA) and public security. The largest of these armed activities took place in June 1951. During the incident two to three hundred of Zhadie's rebels besieged the Wendong District government and kidnapped communist cadres with the support of Kuomintang forces.

Burma agreed to let the PLA fight Kuomintang forces on Burmese soil in 1961, putting Zhadie’s mainland activities on hold for approximately two decades. Zhadie’s influence diminished without the military backing of the Kuomintang, but it had a resurgence during the reform and opening in 1978.

From the mid-1980s to 1998, Simao police arrested 66 people in 20 incidents of subversion and sabotage linked to Zhadie. During the period, he made plans for a Wa-Lahu nation more concrete, stating that it would be established in the year 2000 and that he would serve as president. In March 1990, nearly 200 villagers joined his core supporters in celebrating the establishment of the “Zhadie District government” in Yunnan’s Ximeng County. Between 1991 and 1993, his supporters went to 121 Wa and Lahu villages to hand out photos of Zhadie and seals and flags of the new "regime."

It was not until the mid-1990s that China addressed the problems through diplomacy. In the spring of 1996, Chinese officials traveled to Burma's Mongmao County to meet with Zhadie, then age 72, and announce that he and his adherents had violated Chinese law. China threatened to impose sanctions on Burma and to close the border for religious worship during Chinese New Year. In response, the local Burmese government began imposing restrictions on Zhadie in 1998, greatly diminishing his influence in China.

Nonetheless, nearly ten years later, on December 27, 2006, The People's Daily named Zhadie as an overseas separatist force in Yunnan that was funded by western countries and supported by the US government and religious organizations.

Thursday, November 5, 2015

Guangdong High Court Asks Why So Few Are Found Innocent

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

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

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

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

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

Acquittal Averse Strategies

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

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

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

Inside the Pressure Cooker

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

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

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

Prioritizing Public and Process

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

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

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

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

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

Thursday, September 24, 2015

Xinjiang’s State Security Prisoners: Failing to Reform (Part 2 of 2)

Twelve men accused of ESS are publicly sentenced in Yili (Ili) Kazakh Autonomous Prefecture, Xinjiang, September 18, 2008. Photo credit:

In 2008 the Xinjiang Rule of Law Leading Small Group published a policy document examining a number of challenges faced by prison authorities in managing the region’s endangering state security (ESS) prisoners. The first two sections of the document, which discuss the situation facing Xinjiang prison work and the psychological profiles of ESS prisoners, are translated here. What follows is a translation of the last two sections of the document. These sections describe attitudes towards reform among ESS prisoners and methods for prisons to improve their reform work. The document emphasizes the “clear hostility” of ESS prisoners, noting that it is “extremely common” for them to resist reform.

The document observes that by concentrating ESS offenders, prisons become fertile grounds for reactionary groups to recruit members and may ultimately become targets for attack. The language used in this paper conveys the sense that prison authorities are engaged in battle with enemy forces on China’s frontier and that, in the interest of “stability above all else,” military-level investments in personnel, equipment, and facilities are necessary.

Prisons are instructed to “strategically despise all enemies but tactically take [them] seriously” and to “divide and demoralize.” In some cases, the document specifically calls for solitary confinement, fixed sleeping positions, and prohibitions on sitting.

Among the groups identified in the document as a proponent of the “three forces” of ethnic separatism, Islamic extremism, and terrorism is the East Turkestan Islamic Party (ETIP). Chinese officials have ascribed a number of bombings and hijackings to the group, which was labeled a terrorist organization by the US government in 2002. As recently as May 2015, Mettursun Eziz was sentenced to four years’ in prison for circulating religious materials produced by ETIP.

Thursday, September 17, 2015

China Adds Life Without Parole to Anti-Corruption Arsenal

The National People's Congress passes the ninth amendment to the Criminal Law in August. Credit:

Just before passing the ninth amendment to the Criminal Law late last month, the Standing Committee of China’s National People’s Congress inserted a new provision. Unlike many other new provisions, including those regarding defense lawyers and capital punishment, “cults,” and protestors, this provision was not subject to public consultation. In China’s non-democratic political system, public consultation is one of the few chances for citizens to provide input into the legislative and policymaking processes. It is intended, at least in part, to reinforce popular support for the outcome.

This last-minute provision altered Article 383, which covers the offenses of corruption and taking bribes. Effective November 1, the provision authorizes courts, in certain cases, to add a condition at the time of sentencing to require an individual to spend life in prison without possibility of sentence reduction or parole. The condition may only be applied in corruption cases where the defendant received a suspended death sentence and had that sentence commuted to life imprisonment after the two-year period of reprieve. If such a condition is imposed, the convicted individual will not be eligible for clemency that is ordinarily available under law—meaning that he or she will truly be required to spend the rest of his or her life in prison.

Paving the Way to Abolition

Chinese media has emphasized the significance of this provision as part of the sweeping anti-corruption campaign that has become a signature policy of Xi Jinping. Legal experts and commentators have widely praised the move for sending a strong signal that corruption will continue to be punished severely.

Others have noted that the introduction of life without possibility of release may have wider implications for abolishing the death penalty in China. Public attitudes toward the death penalty are complex and context-dependent, but continued popular support for capital punishment is one factor underlying the cautious and gradual approach that China’s leaders have adopted in reducing its use. Longstanding anger over rampant corruption has helped fuel public support and contributed to anxiety over efforts to strip the death penalty from many economic and non-violent offenses.

Part of this anxiety is rooted in the belief that the death penalty is the only punishment severe enough to deter the most serious crimes. However, in recent years, policies aimed at gradual abolition have led to fewer and fewer death sentences in corruption cases, making suspended death sentences the de facto maximum penalty. Through commutation and sentence reduction, individuals given suspended death sentences can potentially leave prison after serving terms not much longer than the maximum sentence of fixed-term imprisonment, or about 18 years. Some members of the public also worry that corrupt officials might be able to use connections or bribes to buy prison stays that are even shorter.

Given these factors, the introduction of life without parole in serious corruption cases has the potential to mitigate some of the public doubts about lenient punishment for corrupt officials. In so doing, it could also clear the way for China to eventually eliminate the death penalty for corruption. Advocates of death penalty reform anticipate that imprisoning corrupt officials for the rest of their lives would satisfy the public’s expectation of severe punishment. They also believe that in the future life without parole could be extended to other types of crime—including violent offenses.

Following a reform model often seen in China, legal reformers thus appear to have taken advantage of the current anti-corruption environment to experiment with a new kind of punishment and assess the prospects for further refinement and expansion based on practical experience.

A number of issues remain to be addressed. Zhuang Deshui, an anti-corruption expert at Peking University, points out that in order for the new measure to have its desired deterrent effect, courts must “dare” to use it. To this end, Professor Zhao Bingzhi of Beijing Normal University Law School notes that it is necessary for the Supreme People’s Court to issue a judicial interpretation setting clear guidelines for when to apply the new condition. How fairly the condition is applied will play an important role in whether the public can accept life without parole as a substitute for the death penalty.

Choosing Retribution over Rehabilitation

By choosing to deprive certain prisoners of any possibility for early release, China is giving more weight to the retributive and deterrent functions of criminal punishment than to its longstanding emphasis on rehabilitation and reform. If things continue to develop in this direction, what impact might this have on China’s criminal justice system?

Other than the United States, where in the 1980s an abrupt departure from reformative justice helped make life without possibility of commutation or parole a common sentence, very few other jurisdictions impose such categorical penalties. Elsewhere, in fact, it is more common to make possible some form of conditional release after ensuring that an individual has been imprisoned long enough to reflect the seriousness of his or her offense. This is in keeping with the United Nations Standard Minimum Rules for the Treatment of Prisoners. The rules state that the protection of society through imprisonment, and other deprivations of liberty, “can be achieved only if the period of imprisonment is used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life.”

In an article published just last year, Professor Zhao Bingzhi criticized life imprisonment without the possibility of sentence reduction or parole as inhumane and a violation of human dignity comparable to the death penalty itself. In a forum on death penalty reform in 2008, Zhao and other Chinese legal experts presented arguments on why life without parole was unreasonable and ill suited to China’s justice system. Now, however, these same experts appear to be embracing more stringent penalties in the interest of making it possible to do more to reduce the death penalty. Life without the possibility of release for corrupt officials may be popular with the public, but the American experience ought to serve as a warning to China that failure to strike the right balance between punishment and reform can lead to many new and serious challenges to human rights.

Tuesday, August 25, 2015

Xinjiang’s State Security Prisoners: Failing to Reform (Part 1 of 2)

Twelve men accused of ESS are publicly sentenced in Yili (Ili) Kazakh Autonomous Prefecture, Xinjiang, September 18, 2008. Photo credit:

In 2008 the Xinjiang Rule of Law Leading Small Group published a policy document examining a number of challenges faced by prison authorities in managing the region’s prisoners serving sentences for endangering state security (ESS). The first two sections of the document are translated below. They discuss the climate surrounding Xinjiang prison work and the psychological profiles of ESS prisoners. The last two sections of the document, focusing on how to better reform ESS prisoners, will be translated in an upcoming post.

The document focuses on external factors, like increasing US attention to the “Xinjiang question” and the “three forces” of ethnic separatism, Islamic extremism, and terrorism. Also mentioned are internal factors, such as an insufficient number of prison police, a shortage of funds, and outdated facilities.

Over the years, Dui Hua has drawn on evidence from a variety of open-source documents to conclude that Xinjiang accounts for a considerable proportion of the nation’s ESS arrests, indictments, and trials. In 2008, Xinjiang accounted for more than 75 percent of ESS arrests and 82 percent of ESS indictments nationwide. In the first 11 months of that year, Xinjiang’s procuratorate reported that 1,295 individuals were arrested and 1,154 were indicted for ESS crimes in the region. Between 2008 and 2010, Xinjiang, which accounts for less than two percent of China’s population, accounted for 50 percent of the nation’s first-instance ESS trials. In 2013 and 2014, Xinjiang conducted about 300 ESS trials of first instance each year.

The large number of ESS cases in Xinjiang is connected to the region’s complex history; diverse population; and geo-strategic importance, bordering Russia and Central Asia on China’s northwest. The emergence of independent Central Asian states after the collapse of the Soviet Union and the spread of Islamic ideologies have heightened Chinese authorities’ concerns about stability in the region. Authorities in Xinjiang see themselves as engaging in an ongoing battle against the “three forces.” In their view, what hangs in the balance is the stability of Xinjiang and the allegiance of the region’s 10 million Uyghurs—an ethnically Turkic, culturally distinct, and predominantly Muslim people who have been the main inhabitants of the region for more than 1,000 years.

The document describes the “American Factor” as a “constant threat” to Xinjiang’s social and political stability. It mentions US support for nonviolent resistance movements, or color revolutions, in Central Asia and notes that religious extremism has flourished in countries where color revolutions occurred. US interest in human rights in Xinjiang, particularly its criticism of controversial ESS cases like that of Ilham Tohti, remains a point of contention in US-China relations. China continues to see such attention as interference in its domestic affairs, and accuses the United States of a “double standard” in combatting terrorism for its penchant to draw attention to Chinese policies that marginalize and criminalize Uyghur culture in its response to ethnic clashes in Xinjiang.

Tensions between Han Chinese and Uyghurs flare up periodically as protest. Some of the protests turn violent, as in the deadly riots that erupted in Ürümqi in July 2009. In recent years official media have reported an increasing number of violent incidents in the region. Xinjiang police counted over 190 “terrorist” attacks in 2012. Authorities have also implicated Uyghurs in incidents outside the remote western region, including Beijing’s Tiananmen car crash in October 2013 and knife attacks at Kunming and Guangzhou train stations in 2014 and 2015, respectively. Law enforcement has responded by tightening controls on religious and cultural activities and cracking down on “infiltration” by trans-national radical groups.

One of the radical groups named in the paper is Hizb ut-Tahrir, or Party of Liberation. Many countries have banned the group. Chinese government records show that a substantial proportion of ESS cases are attributed to Hizb ut-Tahrir. For example, in 2010, police in Kashgar identified 522 people for their involvement with Hizb ut-Tahrir, compared with just 47 people involved with the East Turkestan Islamic Party. That said, independent media reports documenting Hizb ut-Tahrir activity in Xinjiang are scarce.

Moving to psychological profiles, the document distinguishes different segments of Xinjiang’s ESS prisoner population by factors such as age, level of education, and exposure to religious ideas. The profiles suggest the need for differentiated strategies of “education and reform.” Prison authorities put considerable emphasis on the need to “convert” ESS offenders and replace their “bigoted” and “reactionary” ideas about ethnicity, religion, and history with proper Marxist understandings that reduce antagonism towards the party-state.