Wednesday, December 20, 2017

Imprisonment for Crimes No Longer in the Criminal Law

1983 Strike Hard Campaign in Shanghai. Given the catch-all nature of hooliganism, hooligans became a target of the campaign, where tens of thousands were prosecuted, many for non-violent acts seen as “immoral.” Image Credit:

Dui Hua research has uncovered the names of more than 180 individuals serving sentences for hooliganism -- a crime removed from the Criminal Law in 1997 -- as late as 2015. Dozens of these prisoners are still serving their sentences. Based on circumstantial evidence, Dui Hua believes that one of them may have been convicted of hooliganism for offenses committed during the Spring 1989 protests that rocked China.

The last known June Fourth prisoner serving a sentence for hooliganism was Liu Zhihua (刘智华). Liu was released from Loudi Prison in Hunan Province in January 2009.

Hooliganism: A Catch-all Offense

Since hooliganism was codified in the Criminal Law in 1979, a large but unknown number of people have been convicted of this offense. The crime of hooliganism was created with the aim of deterring a wide range of disorderly conduct including “assembling a crowd to have brawls, stirring up fights and causing trouble, humiliating women, and other hooligan behavior.” Inspired by the criminal laws of the former Soviet Union and other socialist states, Chinese lawmakers left vague what constituted “humiliation of women” and “other hooligan behavior.” Hooliganism is essentially a catch-all offense, giving authorities discretion to punish undesirable behavior as defined in interpretations issued by the Supreme People’s Court and the Supreme People’s Procuratorate.

The Case of Wang Shaohua: A June 4 Prisoner?

Wang Shaohua (王少华) was sentenced to death with reprieve for hooliganism at the age of 17, two months following the pro-democracy protests of 1989. Wang remains incarcerated in Wuzhong Prison in Ningxia autonomous region. Student and worker protesters who participated in the June Fourth protests were given swift and severe punishments for crimes such as hooliganism, counterrevolution, and charges such as arson, assault, and robbery, often within a few months following their detention. August 1989 accounts for the highest number of trials for hooliganism following the June Fourth protests.

Wang was sentenced in Shizuishan, a town just 47 miles north of Ningxia’s provincial capital Yinchuan. Yinchuan was a city rocked by the June Fourth protests. A government record states that approximately 50,000 people took to the streets of Yinchuan on May 18. The day following the bloody suppression in Beijing on June 4, 800 students and teachers from Ningxia University held a memorial for the deceased protesters. Two days later, the number of participants at the memorial nearly doubled. The mourning continued until participants were arrested en masse by public security authorities on June 25.

Wang received several sentence reductions after being convicted of hooliganism. In 1997, Wang was released on medical parole, but he failed to observe the terms of his parole and was eventually taken back into custody. In 2008, a local court combined the remainder of his hooliganism sentence with an additional crime of tomb-robbing, leading to a total sentence of 19 years' imprisonment. Wang is due to be released in August 2018. (Unlike counterrevolution which was tried by intermediate people’s courts, hooliganism was tried by district courts.)

Incarceration for Crimes no Longer in the Criminal Law

Image Credit: Dui Hua Foundation.

After the crime of counterrevolution was removed, along with hooliganism, in the revised Criminal Law in 1997, Dui Hua Executive Director John Kamm began lobbying the Chinese government to release counterrevolutionaries who were still serving sentences in prison. His pleas fell on deaf ears. A letter from the Ministry of Justice dated April 17, 1998, cited Article 12 of the amended Criminal Law: “Before the entry into force of this law, any judgment that has been made and entered into law and has become effective according to the laws at the time shall remain valid.”

Individuals who committed crimes of counterrevolution before the revised Criminal Law came into effect that were discovered after 1998 have in fact been prosecuted and sent to prison for committing the crime of counterrevolution. A striking example is the case of Chen Yulin, a former Chinese official and Hong Kong businessman who was sentenced to life in prison in 2004 for spying for the British in pre-handover Hong Kong.

Chinese news media has reported at least two hooliganism trials since the crime was removed in 1997. In May 2012, Zhao Dameng (赵大猛) received a suspended sentence in Nanjing for an act of hooliganism committed in 1996; in April 2013, a man surnamed Cao was sentenced in Hunan to 18 months’ imprisonment for hooliganism. Several other hooliganism trials concluded recently have not received any coverage.

Dui Hua’s research into online judgments reveals that as of January 1, 2015, at least 182 hooliganism prisoners remained in prison. Of them, 121 were released between 2015 and 2017; 61 continue to serve their sentences.

China’s Criminal Law imposes no limit on the period of prosecution for cases where the suspect has escaped after a case has been filed by police or procuratorate, or heard by the courts. Not all hooliganism prisoners sentenced after 1997 were escapees like Zhao Dameng. Some were released on probation, but re-sentenced for violating parole rules. Courts can also hear a new case and extend sentences for hooliganism prisoners for violating prison regulations. A few prisoners were sentenced to new offenses that were missing in the original hooliganism trials, and thus received sentence extensions.

Dui Hua found that 20 of 182 hooliganism prisoners still in jail as of January 1, 2015, were sentenced during or after 2010. Of these 20 prisoners, Chen Dong (陈东) is set to be released in 2023. Chen was sentenced to 15 years’ imprisonment for hooliganism as a standalone charge in 2010.

Image Credit: Dui Hua Foundation.

  • The 1983 Strike Hard Campaign
  • Given the catch-all nature of hooliganism, hooligans became a target of the 1983 Strike Hard campaign where tens of thousands of hooligans were prosecuted not only for their violence or trouble-making, but also other non-violent acts seen as “immoral.” Courts were required to hand down “swift and severe” punishments, with sentences up to immediate execution. An even larger number were sent to re-education through labor camps without trial.

    Most prisoners sentenced to death with reprieve or life imprisonment during the 1983 campaign have received some form of clemency, but not all of them have been released. Dui Hua’s research indicates that as of January 1, 2015 six hooligan prisoners sentenced in 1983 were still serving their sentences and as of the end of 2017 two remain incarcerated.

  • The 1996 Strike Hard Campaign
  • In 1996, China launched a second Strike Hard Campaign, this time to curb the growing influence of gangsters and triads. Although hooligans were not the focus of the campaign, another wave of life sentences and death with reprieve sentences for hooliganism were imposed. Dui Hua found that as of January 1, 2015, 76 hooliganism prisoners sentenced during the 1996 campaign remained imprisoned and twenty are still serving their sentences as of the end of 2017. At least four will be released in the 2020s.

    Ethnic Bias in Clemency

    Clemency provided to hooliganism prisoners has a clear ethnic bias. Of the six hooliganism prisoners who did not receive clemency prior to 2016, four are Xinjiang ethnic minorities. The other two are Han Chinese who were sentenced to life imprisonment in 2012. The Fujian High People’s Court received recommendations from the prison to commute their sentences to 19 years and 19½ years, respectively, in 2015. The result of the sentence commutation application is unclear.

    Unlike the two Han Chinese who were considered for clemency three years into their sentence, the same opportunity was not given to three Uyghurs and one Uzbek in Xinjiang until they had served many more years of their sentences. The Uzbek was sentenced in 1992 to death with reprieve for hooliganism and other violent crimes; the Uyghurs were sentenced to life imprisonment or death with reprieve in April-May 1997. They were sentenced a few months after the Ghulja Incident in 1997, a violent crackdown by the Chinese government on the traditional Uyghur cultural festival of Meshrep. While the two sentenced to death with reprieve had their sentences commuted to life imprisonment, neither of them are known to have received further sentence reductions. Even if the Xinjiang High People's Court were to have granted them clemency in 2016, they would still have at least two more decades to serve until the late 2030s, possibly making them the last known hooligans serving sentences for the now defunct crime.

    An Outdated Sentencing Regime

    One would be mistaken to assume that the acts that hooliganism prisoners were prosecuted for are no longer considered illegal. In today’s Criminal Law, crimes of disturbing public order like “picking quarrels and provoking disturbances” and “assembling crowds to disturb public order” are used to prosecute human rights lawyers, petitioners, and protesters for what were formerly considered hooligan “trouble-making behavior.” Equivalents for hooligan “licentious behavior” like “insulting women” are harder to locate in the current criminal law.

    In March 2015, President Barrack Obama commuted the sentences of 22 prisoners who were sentenced to life imprisonment for drug offenses because they were convicted under what he called an “outdated sentencing regime”. Their cases were largely non-violent, but “because of the operation of sentencing laws on the books at the time, [they] received substantial sentences that are disproportionate to what they would receive today,” said a deputy attorney general at a press conference announcing the clemency initiative. Similarly, hooliganism prisoners are incarcerated under an “outdated sentencing regime.” Campaign-style trials during the two Strike Hard Campaigns were concluded at the expense of defendants' rights and judicial fairness. The sentences they received at that time were more severe than what they would receive under today's Criminal Law. Under Article 15 of the International Covenant on Civil and Political Rights, a prisoner shall benefit from a lighter penalty if such provision is made by law subsequent to the commission of the offense. As a signatory of the covenant since 1998, China should consider granting additional clemency to those who remain in jail for the crimes of hooliganism and counterrevolution. Failure to do so will present yet another obstacle to the country’s ratification of the International Covenant on Civil and Political Rights.