Wednesday, November 30, 2016

Is Life Without Parole a Signal of China's Will to Reduce Executions?


High ranking officials Bai Enpei (left) and Wei Pengyuan (right) sentenced to life without parole for extreme corruption charges. Image credit: Comm News and Caixin.

Former high-ranking officials Bai Enpei and Wei Pengyuan have become the first individuals in China sentenced to life in prison without the possibility of a sentence reduction or parole (“life without parole,” or LWOP). The sentences for Bai and Wei were made possible by last year’s amendments to the PRC Criminal Law, which included a new provision that authorizes judges to issue LWOP along with suspended death sentences in extremely serious corruption cases.

Before these cases, it had become common in China for high-ranking officials to receive sentence commutations after their suspended death sentences, effectively allowing for release on parole several years later. The judgments for Bai and Wei, however, state explicitly that after a two-year reprieve from their death sentences, they must begin serving LWOP sentences.

On October 9, 2016, the Anyang City Intermediate People’s Court in Henan province found that Bai abused his posts and illegally amassed more than RMB 247 million yuan (approximately USD $37 million) in assets. (Bai had previously served as Party Secretary in Yunnan and Qinghai provinces and was most recently a Vice Chair of the National People’s Congress Environment and Resources Protection Committee.) A week later, the Baoding City Intermediate Court in Hebei province similarly found that Wei kept more than RMB 200 million yuan (approximately USD $30 million) at his home, corroborating suspicions that Wei received bribes to approve coal projects.

Bribery charges in excess of RMB 3 million yuan trigger a maximum penalty of death, but other defendants accused of receiving millions more in bribes have still received sentences that leave open the possibility of future release (e.g., Zhou Yongkang and Liu Zhijun). Bai and Wei have thus become the first “tigers” ensnared in Xi Jinping’s anti-corruption campaign to receive sentences mandating that they die behind bars.

Observers Question Legality of New Life Without Parole Sentences

Since the sentences of Bai and Wei were reported, some informed observers have questioned whether the courts properly applied the law, with attorney and microblogger Chen Youxi emerging on social media as a leading critic. When the Criminal Law was amended last year, Dui Hua noted that Article 383—which covers official corruption—authorizes courts to simultaneously pronounce sentences of LWOP and death with two-year reprieve during initial judgment (as opposed to courts issuing LWOP decisions after completion of the two-year period of reprieve). Consistent with Article 383, the courts in the cases of Bai and Wei both pronounced the LWOP sentences at the time of judgment.

Attorney Chen acknowledges that Article 383 authorizes courts to pronounce LWOP sentences, but finds that the Criminal Law only allows the court to amend a suspended death sentence after the defendant successfully completes the period of reprieve. Legally speaking, completing the death penalty suspension is not a foregone conclusion—for instance, the defendant must admit guilt and no new crimes can be discovered during the period of reprieve.

Chen claims that issuing LWOP as a condition of a suspended death sentence assumes that the defendant will successfully complete the reprieve period. According to Chen, a broader analysis of the legislative and regulatory framework of the Criminal Law indicates that the courts’ actions and Article 383 violate the legal logic relevant to suspended sentences.

Is Life Without Parole a Step Towards Abolishing the Death Penalty for Corrupt Officials and the General Public Alike?

Despite Attorney Chen’s objections, the sentences given to Bai and Wei are likely to be upheld, as they come in the context of China’s broader effort to combat corruption and to place serious limits on the death penalty. Since 2011, 22 non-violent crimes have been removed from the list of capital offences. Beijing Normal University Criminal Law Institute Professor Yuan Bin believes that capital punishment is a source of tension between the legal system and Chinese society: on the one hand, corruption is primarily a non-violent offense that does not directly threaten lives, and so the death penalty seems disproportionate; on the other, there is strong public support for harsh punishment of corrupt officials, which suggests that efforts to abolish the death penalty for offenses such as bribery would meet stiff public resistance.

Further complicating matters, despite public support for harsh punishment, the current trend in sentencing is against executing corrupt officials. Though three high-ranking officials were executed in 2011 for taking bribes, since 2012, when Xi Jinping came to power and launched his anti-corruption crackdown, no high-ranking officials charged with accepting bribes have been executed.

The June 2013 sentencing of Liu Zhijun is seen by many as a turning point towards leniency for corrupt officials. Though he was found guilty of taking bribes totaling more than RMB 64 million yuan (more than USD $10 million), instead of immediate execution he received a suspended death sentence. According to Southern Weekend’s count, among high-ranking officials criminally charged since the 18th Party Congress, six have received life in prison with no imposed restrictions on the possibility of parole (including Zhou Yongkong and Ling Jihua) and 21 have received fixed prison terms.

At least some lawyers and judges have suggested that the trend against executions in official corruption cases might lead to abolition of the death penalty altogether. A “highly experienced” judge commented on Chen Youxi’s microblog that eliminating capital punishment for official corruption might provide a model for total abolishment of the death penalty. The judge noted that if the death penalty was phased out, China would join more than 100 nations that have legally abolished the death penalty or have done so in practice. Most likely, even if China eliminated executions in practice, the death penalty would almost certainly remain on the books as a punishment option in extreme cases.

Often overshadowed by debates over the death penalty, life imprisonment without parole is also a controversial international topic. The UN General Assembly, for instance, since 2006 has regularly called for immediate abrogation of juvenile LWOP sentences in all countries. From 2006-2008, the US cast the lone dissenting vote to this resolution, but reversed its stance in 2009. The US Supreme Court then found in the 2012 case Miller v. Alabama that the Eighth Amendment of the US Constitution “forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders.”

In the aftermath of the Miller case, Dui Hua also noted LWOP for adult offenders runs counter to the spirit of international conventions, including those to which the US is a party. The International Covenant on Civil and Political Rights (ICCPR) states that the aim of prison systems “shall be [prisoner] reformation and social rehabilitation”—a futile goal if an eventual re-entry to society is not within reach. Nonetheless, LWOP sentences are common in the US for violent crimes like homicide, and according to the Sentencing Project, there are more than 49,000 people in American prisons serving sentences of life without the possibility of parole (as of 2012). By comparison, lifetime prison sentences are not an option in many countries across Latin America, Europe, and Asia.

In China, the goal of deterring corruption appears to outweigh the controversy over imposing LWOP for non-violent crimes. Professor Ruan Qilin of the China Politics and Law University Criminal Justice Institute suggests that LWOP sentences are appropriate given China’s fight against corruption and the rarity of executions for officials convicted of corruption. Instead of executing corrupt officials, LWOP preserves a deterrence function, while at the same time, citizens fed up with corruption are “comforted and placated” (抚慰和鼓舞). Professor Ruan claims that LWOP has a greater deterrent effect than sentencing practices in other countries, specifically questioning those in Spain, where even violent terrorists are regularly released early despite initial prison sentences hundreds of years long.

Phasing out the Death Penalty: Welcome to the Life Without Parole Era?

It remains to be seen whether the sentencing treatment of Bai and Wei is a harbinger of change. Will the Chinese government note public reaction to the use of LWOP in corruption cases and adjust accordingly? Even if the public is generally amenable to LWOP for corrupt officials, societal tensions will still arise in response to wrongful executions of ordinary citizens (e.g., the recent investigation into officials involved in the wrongful conviction of 18-year-old Huugjilt in 1996). The knowledge that, in cases of corruption, high-ranking political officials are largely exempt from capital punishment (and therefore from the possibility of wrongful execution), while ordinary citizens have no such protection, will likely not sit well with the general public. Should these circumstances swing public opinion against general use of the death penalty, future amendments to the Criminal Law might include LWOP as a possible replacement in an array of criminal offenses.

Tuesday, November 8, 2016

The Case of Feng Zhiming: A Question of Accountability


Li Sanren and Shang Aiyun, parents of Huugjilt, who was wrongly executed for rape and murder at age 18. Image credit: China Daily

On October 18, a court in Inner Mongolia sentenced the former deputy police chief of Hohhot, Feng Zhiming, to 18 years in prison. Feng’s conviction on charges of corruption, taking bribes, having large amounts of property that cannot be accounted for, and illegal possession of firearms and ammunition made national headlines, in part because of his connection to one of China’s most infamous cases of wrongful conviction and execution of an innocent person— the case of Huugjilt.

Huugjilt was executed in 1996 for the rape and murder of a woman whose body he had reported finding in a public toilet. The case against the 18-year-old Huugjilt moved swiftly through the criminal justice system, taking just over two months from the time of his arrest to his execution. Law-enforcement authorities considered it an open-and-shut case, based mainly on the strength of the defendant’s confession, allegedly made while he was in custody. The key players responsible for steering Huugjilt’s case through the system went on to receive promotions and commendations. But in 2005, a serial murderer confessed to the crime. When authorities reviewed the case they determined that Huugjilt had been wrongly convicted.

In the years that followed, judicial authorities were repeatedly ordered to reopen the case. But it was not until November 2014 that the Inner Mongolia Autonomous Region High People’s Court held a new trial and posthumously exonerated Huugjilt of all charges.

Days after the court’s decision, it was announced that Feng Zhiming, the police official who had led the original criminal investigation in 1996, had been placed under arrest by the local procuratorate and was being investigated for dereliction of duty, coercing confessions through torture, and taking bribes.

To many Chinese, Huugjilt’s wrongful conviction and Feng Zhiming’s arrest were clearly connected. At the time of the arrest many hailed it as evidence of a new commitment to fighting wrongful convictions by demanding individual accountability from law-enforcement. However, Feng Zhiming’s conviction—despite the heavy prison sentence—left many disappointed when no mention was made of the Huugjilt case or Feng’s role in it. An online survey of more than 1,000 people conducted by the Beijing News found that nearly three quarters of respondents thought that Feng should have been held criminally responsible for his role in the Huugjilt case and 57 percent considered the verdict’s failure to mention the case “unreasonable.”

It took 18 years to finally exonerate Huugjilt of the crime for which he was wrongly executed, so there’s a certain symbolic balance in a prison sentence of 18 years for the man widely believed to have been responsible for the miscarriage of justice. However, absent an official statement from judicial authorities connecting Feng’s many criminal misdeeds with Huugjilt’s specific case, the question of accountability and positive change in the legal system remains.

Last February when authorities in Inner Mongolia announced the results of their investigation into 27 individuals being held in connection with Huugjilt’s wrongful conviction, Feng Zhiming was unique in that his case was being “handled separately” in the criminal justice system. But in the The Beijing Times of October 19, 2016, columnist Binglin observes that the earliest charges brought against Feng Zhiming dated from 2000—four years after Huugjilt’s execution—meaning that the question of his role in the case was never actually put before the court. Binglin asks:

Does Feng Zhiming’s responsibility for this miscarriage of justice fall within the scope of criminal liability? Even if his responsibility is limited to the realm of administrative sanction or party discipline, the fact that he’s been held criminally responsible for other acts shouldn’t mean abandoning the pursuit of a clear explanation of personal accountability and punishment for his role in the miscarriage of justice.

On the same day, in Shanghai’s Oriental Morning Post, columnist Shen Bin points out that Feng Zhiming’s corruption has been documented “to two decimal points,” meaning that the investigation was conducted quite thoroughly. He asks: “Has the statute of limitations expired or has so much time passed since the Huugjilt case that it’s become too difficult to pin down the relevant evidence? I hope there will be an authoritative answer.”

Ultimately, these discussions highlight the importance of transparency and accountability. While the arrest and sentencing of Feng Zhiming provides some consolation, without the specific accountability that a judicial judgment could bring, justice has yet to run its full course. And without a reasonable explanation for why Feng’s role in the Huugjilt case has so far gone unpunished, many will conclude that there has been some sort of cover-up.