Tuesday, August 22, 2017

How Transparency in Death Penalty Cases Can Reduce Wrongful Convictions

He Jiahong (right) speaking on a forum at the "World Day Against Death Penalty", October 2014.

He Jiahong is a special kind of Chinese legal expert. He is a well-known legal scholar at Renmin University Law School in Beijing, where he specializes in criminal justice and the issue of wrongful convictions. He is also the author of detective novels and writes prolifically on legal subjects for popular audiences. He reportedly likes to describe himself as: “I am not only a jurist but a novelist, so I often have novel ideas about law.”

One of the ways in which He Jiahong expresses those ideas is through his public WeChat channel—a blog distributed to anyone who subscribes via the social media platform. Recently, he posted a piece with the rather provocative title: “The Number of Executions Should be Made Public.”

In China’s criminal justice discourse, public calls for greater transparency around the use of the death penalty are not unheard of but are nevertheless eye-catching when they do appear, especially from well-known legal experts such as He. Information related to the death penalty, including the number of executions carried out each year, continue to be treated as a closely guarded “state secret.” This is despite the fact that there are many indications that China has significantly reduced its use of capital punishment over the past decade—though it is still generally believed to be the world’s top executioner—and continues to face pressure from NGOs and United Nations human rights bodies to be more transparent about its use of the death penalty.

Changsha Court public announcement of death sentences. Source: Hu Guiyun.

He Jiahong raises some familiar arguments in support of greater transparency about capital punishment in China, including the importance of preventing wrongful executions, demonstrating the progress made in reducing the use of the death penalty, and the value of facilitating public discussion about the future of capital punishment. He clearly believes that openness and greater transparency will help build public trust in the judiciary and show respect for the public’s right to access such information.

He notes that the trend towards online publicization of court documents is making secrecy about capital punishment irrelevant. On this point, he is perhaps overly optimistic. Dui Hua and other organizations that have tried to use online platforms like the Supreme People’s Court’s national database of court judgments have found it seriously lacking when it comes to information about cases involving the death penalty and other “sensitive” subjects.

This suggests that the trend toward judicial transparency is already bound by pre-set limits on what information is considered “appropriate” for public disclosure. If the Chinese government were to do as He Jiahong recommends and make data about capital punishment public, it would first have to make the top-down decision to lift secrecy restrictions. The hope of a shortcut to judicial transparency through the release of court data is unlikely given such secrecy restrictions.


The Number of Executions Should be Made Public

He Jiahong

He Jiahong, professor at Renmin University School of Law. Source: Financial Times.

On April 27, 1987, a dismembered female corpse was found in the Mianjiang River of Mayang County, Hunan. After searching missing-person’s reports, identification by family members, and blood-type analysis, the police confirmed that the deceased was a woman from Guizhou named Shi Xiaorong who had been missing for a month after working at a local hotel.

After several months of investigation, police determined, based on the manner in which the culprit had dismembered the corpse that the killer was a butcher named Teng Xingshan… On December 6, police placed Teng Xingshan under custody and investigation. Following continuous interrogation, Teng finally “confessed.” On December 13, 1988, the Huaihua Prefecture Intermediate People’s Court sentenced Teng Xingshan to death. On January 19, 1989, the Hunan Higher People’s Court rejected Teng’s appeal, upheld the original verdict, and approved his death sentence.

In order to ensure that the death penalty is applied impartially and correctly, Chinese law mandates a special review and ratification procedure for death penalty cases, on the principle of a two-stage judicial process of trial and appeal. According to the provisions of the 1979 Criminal Procedure Law, death sentences with two-year reprieve were to be reviewed by high people’s courts and death sentences with immediate execution were to be reviewed by the Supreme People’s Court. Regardless of whether or not the defendant filed an appeal, cases involving the death penalty would all be subject to an automatic review process. In 1983, in an effort to “strike hard and fast” against criminal acts that seriously endangered public security and social order, the Supreme People’s Court delegated the power to review death sentences for homicide, rape, robbery, setting explosions, and other serious crimes to high people’s courts. To a certain degree, this led to a loosening of the review and control procedures over the death penalty. Since high people’s courts in provinces, municipalities, and autonomous regions were generally the courts hearing appeals in death penalty cases, delegation of the power to review these cases meant that the same court became responsible for hearing the appeal and carrying out the final review. The review and ratification process that had been originally intended as a way to strictly control use of the death penalty became effectively meaningless.

Teng Xingshan’s case was handled under the combined “two-in-one” process of appeal trial and death sentence approval that existed during that particular period of Chinese law. On January 28, 1989, Teng Xingshan was executed by gunshot. However, that wasn’t the end of the case, because the so-called “victim” was still alive and would later “come back to life.”

In 1993, Shi Xiaorong finally made it home to Guizhou after having been abducted and trafficked to Shandong. When she heard about the Teng Xingshan case, she said that she didn’t even know Teng, and certainly did not have any “dubious relationship” with him. She even wrote to the Hunan court, asking it to revoke its mistaken judgment that she had “dubious relations” with Teng Xingshan, had been “murdered” by him, and demanded compensation for her reputation damage. But there was no response from the court. Shi now has a new life and no longer cares about an old case that has nothing to do with her.

News that the “dead had come back to life” eventually reached Teng Xingshan’s family. Teng’s parents had both died not long after their son had been executed. His brother figured that because their family was poor and ordinary they should not oppose the government. Not wanting to make trouble for himself, he decided not to mention the matter to anyone outside the family. In 2004, Teng Xingshan’s daughter Teng Yan had already grown up and worked as a migrant laborer for many years. After she learned the truth about what had happened, she and her younger brother Teng Hui, with help from a lawyer, filed a motion for appeal with the Hunan Provincial Procuratorate and Hunan High People’s Court. On October 25, 2005, the Hunan Higher People’s Court ordered a retrial in Teng Xingshan’s homicide trial and formally acquitted him of the charges. Teng Yan and Teng Hui received state and other compensations in the amount of 666,660 yuan (approximately US$85,000 at the time).

At the time, the National People’s Congress Legislative Affairs Commission was organizing experts and scholars to study ways of reforming the Criminal Procedure Law, and the death penalty review procedure was one of the areas that everyone was paying close attention to. There’s no question that the Teng Xingshan case played a role in pushing forward reform of the death penalty review system. The Supreme People’s Court decided from January 1, 2007, to take back the authority to review death sentences in all cases.

It’s now been 10 years since the reform of the death penalty review system. I was recently asked how I’d evaluate this reform. I said that it’s certainly been very positive, but I would have a hard time saying for sure. I believe that, since the power to review death sentences was returned to the Supreme People’s Court, the death penalty has definitely been applied with much greater strictness, in greater accordance with the rules, and in a more uniform manner. And the number of executions has certainly also decreased by a great deal. But because I don’t know the specific details, it’s impossible to comment in an objective and precise way.

In China, the number of executions seems to be treated as a kind of “state secret”. Those in the know remain tight-lipped on the subject, while those on the outside let their imaginations run wild. In my opinion, there’s no reason to treat the number of executions as a “state secret.” All death sentences in China are handed down and executed openly and in accordance with the law. It’s all perfectly open and aboveboard—executions are not carried out in secret or indiscriminately. Why does the government choose to be so secretive and why is it afraid of keeping the public informed? Disclosing the number of executions will not stain the reputation of the judicial organs or lead to social unrest. Tempered by their experience of numerous wars and disasters, Chinese people surely are psychologically resilient enough to face up to the number of executions!

On this point, policymakers ought to abandon their antiquated ideas of closed-door justice and embrace the modern judicial norms of transparency. Practical experience shows that openness is the best publicity and offers the best route to foster public trust. Publishing execution numbers also demonstrates judicial organs’ respect for citizens’ right to access information (zhiqingquan).

Actually, the Chinese judiciary has already made progress on this front, as court verdicts have begun to be published online! As a technical matter, when court verdicts are all online it won’t be that difficult to use “big data” technology to tally up the number of executions. Even if officials don’t make it public, the public can still find out. Therefore, I recommend that the Supreme People’s Court choose the right moment to begin publishing the number of executions. This can demonstrate the Chinese government’s resolve and sincerity in facing up to capital punishment and promoting civilized justice.

At the present time, there are more than 140 countries and regions in the world that have abolished the death penalty either by law or in practice. This shows that abolishing the death penalty is the general trend of human society because it is in line with the general spirit of humanitarianism and civilized justice. Furthermore, abolishing the death penalty is an effective way to prevent wrongful executions of innocent people. For judicial personnel, “no unjust treatment, no indulging wrongdoings” is but a beautiful tale/lore. Police, prosecutors and judges aren’t supernatural beings, and making the incorrect decisions when evidence is lacking is something that cannot be entirely avoided. Therefore, to prevent further miscarriages of justice in which innocent people are mistakenly put to death, we should seriously consider abolishing capital punishment.

I am deeply aware that China cannot abolish the death penalty at the current time, but we should have an earnest discussion about the issue and, through our efforts, make more of our fellow Chinese understand that the death penalty is not perfectly justified. Our government ought to make a solemn pledge to the world that China will make an effort to abolish the death penalty and that it will start by making the number of executions public so that the world can see the progress of China’s death penalty policies. After several years of continued hard work, China will go from “executing fewer” to “no executions” to full abolition of capital punishment, once again making China one of the most civilized, humane, and harmonious countries in the world!

Wednesday, August 2, 2017

Violent Crime and Juvenile Justice: Lessons for China and the United States (Part II of II)

Following “Violent Crime and Juvenile Justice: Lessons for China and the United States Part I,” Part II explores the states of California and South Dakota, characterized by their “mid-high” to “high” juvenile confinement rates. Do lower juvenile confinement rates guarantee more lenient policies regarding juvenile waiver into adult court?

Number of Inmates Serving Life-Without-Parole Sentences for Crimes Committed as Juveniles

Data taken from July 2015 study “No Hope: Re-Examining Lifetime Sentences for Juvenile Offenders.” Source: Philips Black.
The US is also dealing with the issue of violent crimes committed by juveniles 15 and under, with perhaps the most famous case being the “Slender Man” incident in Wisconsin, in which two 12-year-old female defendants stabbed a classmate repeatedly and were charged with attempted homicide. Because these cases are highly complex, this article conducts in-depth case studies comparing different state approaches to high profile felonies committed by juveniles 15 and younger, similar to the Slender Man case. Two case studies involve female juvenile defendants, and two involve males. Chinese officials considering policy reforms aimed at curbing violence among very young juveniles might draw important lessons from these state-level US cases.

California: Mid-High Confinement Rate (173-366.5 per 100,000)

Facts: Female defendant, Sarah Weeden, who was 14 at the time of the crime, was arrested, convicted, and sentenced for the murder of Navnil Chand, killed by gunshot by 23-year-old Sertice Melonson. The crime occurred in August 2005. According to testimony at Weeden’s 2008 trial, Weeden agreed to meet Chand at a park for a date and directed him there by cellphone. When he arrived, Melonson waited to rob him. During the robbery, Melonson shot and killed Chand. In April 2017, the 9th US Circuit Court of Appeals reversed Weeden’s conviction and remanded her for a new trial, finding that Weeden’s trial attorney provided ineffective assistance of counsel for failing to have Weeden evaluated by a psychologist to determine her capacity to form criminal intent. Weeden might be re-tried in juvenile court.

Law and Policies: California has three ways that juveniles can be prosecuted as adults:
  1. Statutory Exclusion: California has a list of offenses, which if committed by a youth aged 14 or older, require that the youth be criminally prosecuted as an adult. Cal. Welf. & Inst. Code § 602(b);
  2. Discretionary Judicial Waiver: The juvenile court has original jurisdiction over most juvenile cases, but in certain delineated cases where the child is at least 16 years old at the time of the offense, the state may request that the juvenile court transfer jurisdiction to adult criminal court. The juvenile court must conduct a hearing and consider statutorily listed factors to determine whether to transfer jurisdiction. Cal. Welf. & Inst. Code § 707;
  3. Once an Adult, Always an Adult: California has a set procedure by which if a juvenile has been adjudicated, and certain criteria are met, all future charges against them will be automatically prosecuted in adult criminal court. Cal. Welf. & Inst. Code § 707.01.
Defendants Waived Into Adult Court? Weeden appears to have been processed automatically in adult trial court pursuant to the “statutory exclusion” provisions above. Weeden’s appellate attorney notes that prosecutors filed directly in Superior Court (i.e., “adult court”) because it was a murder case, without consideration of factors such as Weeden’s age, maturity level, or mental health. Jurors found Weeden guilty of first-degree murder as an aider and abettor to Melonson, and Sacramento Superior Court Judge Maryanne G. Gilliard sentenced her to 27 years to life in prison.

South Dakota: High Rate of Juvenile Confinement (366.5-560 per 100,000)
Facts: In 2000, a jury convicted Daniel Charles of first-degree murder in the sniper killing of his stepfather, Duane Ingalls. Charles was 14 at the time of the crime. Charles was sentenced to life in prison without the possibility of parole (LWOP), despite the fact that such sentences were largely ruled unconstitutional by the US Supreme Court in 2012. In March 2017, Charles was resentenced to a 92-year sentence, a decision that was upheld by the South Dakota Supreme Court.
Law and Policies: South Dakota has three ways that juveniles can be prosecuted as adults:
  1. Discretionary waiver: for any felony; there is no minimum age requirement. S.D. Codified Laws § 26-11-4;
  2. Statutory Exclusion: required for youth age 16 and older accused of class A, B, C, 1, or 2 felonies. S.D. Codified Laws § 26-11-3.1;
  3. Once an Adult, Always an Adult (if convicted of the offense): S.D. Codified Laws § 26-11-4.
Defendant Waived Into Adult Court? It appears that Charles was waived into adult court based on the “discretionary waiver” provisions listed above.

Figure 1. Selected Non-custodial Measures for Women in Prison in US States
State Confinement Rate, 2013 (per 100,000 juveniles) Defendant Age, Sex, Crime State Laws on Waiver into Adult Court Case Prosecuted in Adult Court?
Wisconsin 109.5-173 12-year-old girl defendants; attempted homicide, stabbing WI law requires children as young as 10 to be charged as adults for homicide crimes Yes
Massachusetts 46-109.5 15-year-old boy defendant; homicide, stabbing Juveniles 14 and older accused of homicide are automatically tried as adults Yes
California 173-366.5 14-year-old girl defendant; homicide, gunshot (participant) Mandatory adult court jurisdiction for violent crimes committed by person 14 or older Yes
South Dakota 366.5-560 14-year-old defendant, homicide, gunshot Discretionary waiver Yes; defendant sentenced to LWOP in 2000, later commuted to 92 years

Reforming Juvenile Sentencing Standards
While the case studies and data presented above are subject to multiple interpretations, the case studies curiously display little correlation between confinement rate and waiver into adult court jurisdiction laws. Where a trend can be identified is in the relationship between high confinement rates and the severity of punishment (as exemplified in the South Dakota case).

Juvenile justice policy reformers have tended to assume that limiting adult court jurisdiction for very young juvenile offenders will help limit unnecessary juvenile confinement. In extremely serious cases involving very young defendants, however, it appears that juvenile court jurisdiction is almost never an option. The two states with the lowest juvenile confinement rates in the case study have the most restrictive laws in favor of trying very young, violent juveniles in adult criminal court: Massachusetts and Wisconsin. Rather than focusing on waiver into adult court in these cases, perhaps juvenile justice reformers should place more emphasis on reforming juvenile sentencing standards and providing defendants with mental health evaluations.

The case study comparison suggests that harsh penalties, rather than mandatory adult court jurisdiction, might co-occur more significantly with high juvenile confinement rates. After all, the state with the highest juvenile confinement rate in the case study, South Dakota, also dealt the harshest penalty: Daniel Charles, the 14-year-old defendant in the South Dakota case, was tried in adult court without a mental health evaluation and was sentenced to life without parole. Even following US Supreme Court criticism of life sentences for juveniles in 2012, the South Dakota court still provided Charles only a nominal commutation to his sentence, reducing the life sentence to a term of 92 years in prison, allowing Charles no chance at parole until he is 60 years old. Further, it appears that only in the bizarre Slender Man case in Wisconsin were the defendants given a mental health evaluation before adjudication. In California, this omission resulted in the reversal of the defendant’s conviction. Increased attention to a defendant’s mental health status might also lower pressure on judges to impose long prison sentences on very young juveniles, thereby reducing the overall rate of confinement in the US.

Tuesday, August 1, 2017

Violent Crime and Juvenile Justice: Lessons for China and the United States (Part I of II)

In May 2014, two twelve year-old girls were charged with attempted homicide in Wisconsin. Image Credit: Newsweek.
Recently, stories of violent crimes committed by juveniles, particularly girls, have featured widely in Chinese media. Stories include the case of a 14 year old girl in Yunnan who was charged with homicide in cooperation with her much older boyfriend and a 12 year old in Hunan who is suspected of having fatally poisoned two other primary school girls. Dui Hua’s 2014 Women in Prison symposium also features research exploring violent crimes committed by juvenile girls in Beijing courts. It found that the percentage of violent crimes committed by juvenile girls has been increasing over the past several years.
The US is also dealing with the issue of violent crimes committed by juveniles 15 and under, with perhaps the most famous case being the “Slender Man” incident in Wisconsin, in which two 12-year-old female defendants stabbed a classmate repeatedly and were charged with attempted homicide. Because these cases are highly complex, this article conducts in-depth case studies comparing different state approaches to high profile felonies committed by juveniles 15 and younger, similar to the Slender Man case. Two case studies involve female juvenile defendants, and two involve males. Chinese officials considering policy reforms aimed at curbing violence among very young juveniles might draw important lessons from these state-level US cases.
Putting the Case Studies in Perspective
To better understand these case studies on violent juvenile crime, this section provides a survey of each state’s rate of juvenile confinement. State juvenile policy works best when the lowest possible proportion of the juvenile population is confined in a detention facility.
Understanding each state’s juvenile confinement rate will then allow for the selection of state-level case studies that reflect the variation in juvenile justice policy across the United States. Using the map below, we hope to identify what conditions are operating in states that do a good job of keeping juveniles out of adult prisons.
The data and maps used in this article come from the Office of Juvenile Justice and Delinquency Prevention (OJJDP), which collects comprehensive data for all 50 states and the District of Columbia. The following map is based on the most recent available data from 2013. [1]

In the map above, it appears that in general, lower confinement rates are found in the Northeast and in some states in the South. (The raw data for 2013 can be found here.)

State-Level Case Studies of Violent Crimes Committed by Young Juveniles
Based on this map of juvenile confinement rates, case studies were selected from different states to get a sense of the variations in juvenile justice performance across the country. The case studies focus on violent crimes committed by juveniles in four states: Massachusetts, Wisconsin, California, and South Dakota, each with varying juvenile confinement rates. Massachusetts has a “low” confinement rate, Wisconsin has a “mid-low” rate, California has a “mid-high” rate, and South Dakota has a “high” rate.

This case selection is intended to gain a better understanding of the spectrum of regional variations in juvenile justice performance across the US, even though the cases themselves likely represent a small number of recent violent juvenile crimes committed in the US.

Massachusetts: Low Confinement Rate (46-109.5 per 100,000 juveniles)
Facts: Fifteen year-old Mathew Borges is accused of stabbing Viloria Paulino, his Lawrence High School classmate on November 18, 2016, decapitating him and mutilating his body.
Laws and Policies: Massachusetts has one way that juveniles can be prosecuted as adults: “Statutory exclusion: [adult court original jurisdiction is] mandatory for youth 14 and older charged with first-degree or second-degree murder. Mass. Gen. Laws Ann. ch. 119, § 72B.”
Defendants Waived Into Adult Court? The defendant was automatically processed in adult court based on the severity of the charges: “Borges will be arraigned in Lawrence District Court…as an adult on a count of first degree murder.”

Wisconsin: Mid-Low Confinement Rate (109.5-173 per 100,000)
Facts: In May 2014, two 12-year-old girls stabbed another girl of the same age 19 times to impress the fictional “Slender Man” horror character; the case has received extensive media attention and the trial is now pending in adult court.
Laws and Policies: In the “Slender Man” case, the adult court assumed mandatory “original jurisdiction” over the case, even though the defendants were 12 years-old, because under Wis. Stat. Sec. 938.183(1), “adult courts have exclusive original jurisdiction over first degree intentional homicide, attempted first degree intentional homicide, first degree reckless homicide, second degree intentional homicide.” According to the Wisconsin Council on Children and Families, “Wisconsin’s lowest age of automatic adult court jurisdiction (age 10) is the lowest in the nation,” and “Wisconsin is one of only 7 states remaining in which youth under 18 are automatically considered adults.” For less serious offenses, Wisconsin youth ages 15 and 16 can still be waived into adult court for any delinquent offense, and for a few serious offenses youth as young as 14 may be waived. Wis. Stat. Sec. 938.18(1).
Defendants Waived Into Adult Court? The defendants were automatically placed into adult court, as mandated by law, and appealed their placement in adult court. The Wisconsin Court of Appeals upheld the placement of defendants in adult court, and denied a related motion for “reverse waiver” that would have placed defendants back in juvenile court: “Wisconsin law requires children as young as 10 to be charged as adults for the most serious crimes, but allows them to seek transfer back to juvenile court, as was recently tried, unsuccessfully, by the two 12-year-old Waukesha girls charged with trying to kill a sixth grade classmate last year to please Slender Man.”

1. OJJDP Statistical Briefing Book. “The information in this table is based on the state where the offense was committed. However, the state of offense is not always reported. Youth for whom state of offense was unknown are included in U.S. totals (3,401 in 1997). These instances are not evenly distributed across states. As such, users should exercise caution when examining state-level trends or comparing states. Visit the EZACJRP methods section for more information. U.S. total excludes youth in tribal facilities. The residential placement rate is the number of juvenile offenders in residential placement per 100,000 juveniles age 10 through the upper age of original juvenile court jurisdiction in each state. To preserve the privacy of the juvenile residents, state cell counts have been rounded to the nearest multiple of three. Detail may not add to total because of rounding. Rates and percentages presented are also based on rounded totals. More information on this rounding rule is available on the EZACJRP Web site.” Return to article