Tuesday, December 13, 2016

China Tightens Clemency Rules for Political Prisoners

Supreme People's Court of China, Beijing. Image credit: WIPO Magazine

On November 14th the Supreme People’s Court (SPC) published China’s most recent interpretation of the Criminal Law’s articles on sentence reduction and parole. The regulations, which take effect on January 1, 2017, will tighten rules for granting reduced sentences and parole to prisoners serving time for endangering state security (ESS) and other serious crimes including corruption. [1] They reflect a 2014 guiding opinion (指导意见) from the Communist Party’s Political and Legal Commission that mandated tougher rules for “three types” of crimes including bribery, financial fraud and organized crime—and they are considerably more detailed than the Court’s previous interpretation on sentence reduction and parole, issued in 2012.

For decades, the SPC has issued regulations calling for “strict handling” of clemency for prisoners serving sentences for counterrevolution and (after 1997) ESS, a category of crimes that includes subversion, inciting subversion, splittism, and inciting splittism. However, until these latest regulations were issued, the court hadn’t defined “strict handling”, leaving it up to the provinces to decide what measures to apply to ESS prisoners in each jurisdiction. [2]

Under the new regulations, “ordinary prisoners” sentenced to life in prison must wait two years before the sentence is commuted to a fixed term sentence of no less than 19 years. Thereafter, each ensuing sentence reduction can occur at a minimum interval of two years, and the length of the reduction is based on the prisoner’s behavior and whether the prisoner performs “meritorious service.” [3]

The new regulations mandate that ESS prisoners like Ilham Tohti and Wang Bingzhang (王炳章) and other prisoners serving life sentences for serious crimes must wait a minimum of three years, rather than two, before the sentence is commuted to a term of no less than 20 years (as opposed to 19 for ordinary inmates). While each ensuing sentence reduction can occur at a minimum of a two-year interval, reductions for ESS prisoners cannot exceed one year. In the best-case scenario, if Ilham Tohti’s life sentence were commuted to a 20-year fixed term sentence in January 2017, it would be 2030 before his sentence would expire, and that would be only if all regulatory requirements for subsequent sentence reductions had been satisfied.

Similarly, prisoners serving fixed term sentences of more than ten years under the new regulations are treated differently according to whether the crime is an ordinary crime or falls under one of the categories of serious crime (which includes ESS) as specified in the SPC regulations. Thus, an ordinary prisoner serving a 12-year sentence for robbery must wait a minimum of two years before being eligible for his or her first sentence reduction, and thereafter must wait at least eighteen months before being considered for subsequent reductions. The length of the reductions is largely at the discretion of the prison authorities, but cannot exceed two years.

By contrast, while a prisoner serving a 12-year sentence for subversion, an ESS crime, must wait at least two years before the first sentence reduction (which is the same for ordinary prisoners) thereafter, he or she must wait more than eighteen months before being considered for a sentence reduction, and the sentence reduction cannot exceed one year.

Three points are worth bearing in mind:

  1. The new regulations apply to everyone currently serving prison terms; in other words, existing sentences are not “grandfathered.” Dui Hua has documented many cases of prisoners serving long sentences for counterrevolution and endangering state security who have received generous sentence reductions that released them from prison many years before the expiration of their original sentences. (Hong Kong journalist Xi Yang , for example, served less than four years of a 12-year sentence for trafficking in state secrets.) The new regulations apply to prisoners whether their sentences were handed down before January 1, 2017 or after. Prior rules and practices will no longer apply.

  2. Provincial prison authorities will be able to impose stricter restrictions than those in the SPC regulations, but they may not impose laxer restrictions.

  3. Medical parole is not covered by the new regulations. Prisoners with serious illnesses can be released at any time with the approval of prison authorities and, for prominent political prisoners, approval by the Ministry of Justice in Beijing. (ESS prisoners who perform meritorious service can be granted clemency, but Dui Hua is not aware of a single example of an ESS prisoner getting a sentence reduction or parole in this manner.) Accordingly, as it has been for many years, medical parole remains the best hope for political prisoners seeking early release from prison.

1. For sentences up to ten-years, serious crimes include graft; undermining financial order and committing security fraud; organizing, leading, participating in, harboring, or colluding with organized crime; endangering state security; terrorism; serious drug-related crimes; recidivism; refusing to fulfill financial judgment. For sentences of ten-years or more, serious crimes include the above, and murder, rape, robbery, kidnapping, arson, causing an explosion, releasing harmful materials, and organizing violent crimes.   Return to Article

2. In the absence of a national standard as to what "strict handling" means, local authorities have been given broad discretion of interpretation and implementation. In December 2003, the Shanghai High People’s Court issued provisional rules stipulating that a sentence reduction for an ESS prisoner is normally up to one year shorter than that for other prisoners who satisfied the same conditions. The rules also stated that there must be an additional delay of one year before sentence reduction when a prisoner was eligible for “a normal commutation to a 20-year fixed-term sentence." In 2009, the Yunnan Prison Management Bureau announced that sentence reductions for ESS prisoners would be three to six months shorter than those for other inmates under satisfying the same conditions. Restrictions on parole for ESS prisoners are also in force in other provinces and municipalities. In January 2005, Beijing issued a decision that required instructions from higher organs before parole can be granted to ESS prisoners. In the same year, Shandong issued a similar provisional notice that stated “criminals who endanger state security… are normally not to be granted parole.”    Return to Article

3. The regulations define meritorious service as 1. Preventing others from committing crimes; 2. Reporting and exposing criminal activities inside or outside prison, or providing important clues for solving a case, which are later verified as being true; 3. Assisting the judicial organs in arresting other criminal suspects; 4. Making outstanding achievements in technological innovation in production and scientific research; 5. Actively resisting natural disasters or preventing major accidents; 6. Making major contributions to the state or society.   Return to Article