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.

    Thursday, November 16, 2017

    Five Years and Counting

    Guangdong Jiangmen Detention Center. It is divided into 79 cells and the buildings form a large enclosed space in the middle. In 2013, the facility held about 1,600 detainees. One of them was Mark Swidan. Image:

    A troubling feature of China's criminal justice system is that a judgment in a criminal trial can be postponed indefinitely after the trial concludes. American citizen Mark Swidan was formally detained on drug charges on November 14, 2012. He was tried in 2013 by the Guangdong Jiangmen Intermediate People's Court. The court has yet to announce its judgment; the Supreme People's Court in Beijing has extended the deadline for the court to render a judgment at least a dozen times. The most recent extension was granted on October 14, 2017. This extension, as with the others, is for three months. A judgment must be announced or another extension must be applied for by January 14, 2018. January 14 is Mark Swidan's birthday.

    In the meantime, Mark Swidan remains held in the Jiangmen Detention Center run by the Jiangmen Public Security Bureau. He receives monthly visits from an officer at the American Consulate in Guangzhou.

    Mark Swidan in happier days. With mother, Katherine, in Houston, 1991. Image credit: Katherine Swidan

    Mark Swidan was taken into custody during a police raid on his hotel room on November 12, 2012. He was on a business trip. Two individuals – an interpreter and a driver – had come to his room. Police reportedly found drugs on their persons. No drugs were found on Mr. Swidan or in his room. Drugs were found in the room of another suspect. No forensic evidence has been produced – no drugs in his system, no DNA on the packages, no fingerprints on the packages or drug paraphernalia – tying Mr. Swidan to the drugs. No emails, letters, or phone calls have been found that link Mr. Swidan to any drug transaction. The indictment states that Mr. Swidan played a secondary role in the alleged crime. Prosecutors recommended a lesser sentence. Mr. Swidan has no history of criminal behavior, including using or trafficking in drugs.

    The alleged crime involved 11 people, including, in addition to American citizen Mark Swidan, four Mexicans, one Canadian, one Hong Kong resident, and four Chinese citizens. It is believed that some of defendants have pointed the finger at Mr. Swidan, who comes from a Texas family of limited means. He is unable to hire good legal counsel. Mr. Swidan refuses to admit guilt. He is said to rather die than admit to a crime he didn't commit.

    Reports given to the family over the years suggest that Mr. Swidan has suffered during his five years in the detention center. He has had his art supplies seized. He has been shackled, bullied, and denied medical treatment. His mother is often unable to have her letters delivered. He has threatened suicide. Detention centers are often accused of being carceral facilities where torture is common place.

    According to a human rights officer working for the United Nations in Geneva, the way Mr. Swidan's case has been handled is a "cut and dry case of arbitrary detention." In perhaps the best known case of someone determined by the Working Group on Arbitrary Detention to have been arbitrarily detained in part because of a long delay in announcing a verdict, the WGAD found that the failure to announce a verdict in the case of American journalist Jason Rezaian, detained in Iran in 2014 and tried in the summer of 2015, was a violation of Article 14 of the International Covenant on Civil and Political Rights.

    It is not unheard of for Chinese defendants to have their judgments delayed for a period of several months. Prominent dissidents like Gao Yu, Guo Feixiong, and Pu Zhiqiang all had their judgments delayed for many months. But holding a foreigner for five years without adjudication is unheard of. No Chinese official has given an explanation for this interminable delay, merely stating that the case is "complicated."

    Article 202 of China's Criminal Procedure Law (CPL) states that a people's court should announce judgment within two months of the completion of the trial, and no more than three months can pass without a judgment being announced. If the crime can result in a death sentence or if there are complicating factors, then the higher court can extend the time for rendering a judgment by three months. "If there are special circumstances requiring additional extensions, the court must apply to the Supreme People's Court for approval." There is no statutory limit for the number of times a judgment can be extended.

    Complicating factors leading to an extension of the judgment include 1) if the offense involves both criminal and civil penalties (Article 202); 2) if the case is an important or complicated one in rural areas with inconvenient transportation; 3) if the case involves large criminal organizations; 4) if it is an important case involving crimes committed in multiple locations; and 5) if collecting evidence is difficult (2-5 are covered by Article 156.) In short, there are many reasons why a Chinese court can extend a judgment for as long as it wants, and there are no means to force a decision.

    "Justice delayed is justice denied" is a legal maxim, widely ascribed to the British jurist William Gladstone, that is the basis of a fundamental due process right, the right to a speedy trial and judgment. Another legal maxim is that a suspect is innocent until proven guilty. In the eyes of the law, Mark Swidan is an innocent man.

    Justice has been denied to Mark Swidan and he and his family have suffered greatly. But China's reputation as a country that respects the letter and spirit of law and protects fundamental rights has also suffered. The Jiangmen Court needs to announce its judgment, a judgment which will hopefully result in Mark Swidan going home without further delay.

    Thursday, November 2, 2017

    Clemency for Singing Red Songs

    Prisoners compete in a red song contest at Fuquan Prison in Guizhou province. Image Credit: Weibo.

    Before Bo Xilai’s famous downfall in 2012, he was widely known for his role in launching Chongqing’s “Red Culture Movement” as the city’s Party Secretary. The movement was an attempt to revive Mao-era culture through a series of propaganda campaigns. A hallmark of the movement was the promotion of singing “red songs” from China’s “revolutionary era.” The songs reached nearly every corner of daily life in Chongqing, from televisions and radio programs to schools and workplaces.

    What is perhaps less known is how the red culture movement also found its way into China’s prisons. In 2008, a total of 100 revolutionary songs glorifying the Communist Party of China, the People’s Liberation Army, and the People’s Republic of China were selected to “rehabilitate” prisoners through prisoner performances. In some cases, these performances have been used to gain points towards granting clemency for prisoners in the form of sentence reductions.

    There is little doubt this directive comes from the highest echelons of judicial power in China. In a statement released by the Ministry of Justice, they acknowledged the “benefits” of instilling red culture for both prison administration and prisoner rehabilitation. They encouraged all judicial officials to further understand the “essence” of red culture. The Ministry even claimed that the contribution of red songs to prisoner reform was “statistically proven.” In 2010, the success rate of reforming “stubborn” prisoners was celebrated for having marginally increased from 79.1 to 81.56 percent since the introduction of red songs in 2008. Over the same period, red songs also purportedly helped to lower the number of prisoners classified as “at-risk.”

    Red song rehabilitation has been widely challenged in and outside of China by former prisoners. In an interview with The Beijing News in November 2012, former Chongqing village official Ren Jianyu (任建宇) recounted his experience serving in a re-education through labor (RTL) facility. He said that in the now defunct system of RTL, detainees would receive sentence reductions for singing red songs. Ren was sentenced to two years for inciting subversion in November 2011 for circulating critical messages online about China’s political system. After Ren had served over one year of his sentence, the Chongqing RTL Committee vacated his sentence on the grounds of insufficient evidence. When asked why Ren refused to sing in RTL while he had promoted red songs in his capacity as a village official in the past, Ren responded that red songs were “meaningless” and had no actual benefits for rehabilitation. Government officials are better off spending resources improving people’s livelihood rather than promoting red songs, said Ren.

    Reforming Prisoners through Red Song Rehabilitation

    In the first few decades after 1949, red songs were used as a legitimate tool for ideological reeducation and prisoner rehabilitation against the “class enemy.” Today, official narratives claim that red songs can widen prisoners' intellectual and cultural horizons, instill repentance, and ultimately transform them into law-abiding citizens. On August 31, 2015, prisoners in Guangdong’s Huizhou Prison took part in a red song performance contest to commemorate the 70th anniversary of the War of Resistance Against Japan. The prison’s website displayed a picture of three prisoners singing on a red-carpet podium underneath a slogan reading “Remember History and Martyrs; Treasure Peace.” The nature of the contest was described as both artistic and rehabilitative. The prison claimed that the participants were inspired by the “revolutionary heroes” mentioned in the red songs and through their participation became more “enthusiastic, determined, and confident” to reform.

    A red song can be performed as a small choir of a few dozen prisoners or as a massive show with hundreds of participants. To celebrate China’s National Day in 2016, over a thousand prisoners in Guizhou’s Liupanshui Prison spent two months rehearsing patriotic songs and choreography for a performance titled “Blessing the Motherland, Thankful for Society.” The prison stated that red songs allowed prisoners to reflect on their crimes and alleviate stress. A month later, Sichuan’s Yibin Prison reported hosting a red song contest with over 500 prisoners.

    Red song performances are about more than just singing. To diversify and develop a unique prison culture, Fuquan Prison in Guizhou organized 64 prisoners in an artistic troupe to play musical instruments such as drums, gongs, and cymbals in preparation for a red song contest. The prison even hired an expert musician from Shaanxi to teach how to play the instruments to the prisoners.

    The messages of nationalism and party allegiance underlying these red songs are clear. In June 2014, Guangxi’s Guizhou Prison organized a red song concert in celebration for the 93rd anniversary of the founding of the CCP. Each participant was required to perform two propaganda songs, one of which was titled “Without the Communist Party, There Would Be No New China.” The second song could be chosen from a list of eleven songs provided by the prison. The Guangxi Prison Administration Bureau claimed that the positive energy and patriotism cultivated from red songs created a healthy environment for rehabilitation.

    Prisoners in a Xinjiang prison perform in a red singing song contest titled “Remember History, Treasure Peace, Love the Motherland, Combat Splittism.” December, 2015. Image Credit: Xinjiang Prison Website.

    Prisoners from ethnic minority groups are no strangers to the red song artistic troupes, in fact their participation is actively sought out. In a China National Radio article, the Xinjiang Agriculture Construction Division praised red songs not only for their propensity to boost the “low levels of cultural development among prisoners,” but also as a way to nurture a sense of national identity. On October 25, 2015, eight Uyghur prisoners were selected to sing the song “Socialism Is Good” in Xinjiang’s Alar Prison. In Alar Prison, Han Chinese and Uyghur prisoners reportedly recite red poems and sing red operas together, of course all in Mandarin Chinese. Instilling messages of nationalism and party allegiance through red songs and the deliberate usage of Putonghua education serves the party and prison’s wider aim to “de-extremize” Uyghur prisoners in the restive region, stated Xinjiang Production and Construction Corps Prison Administration Bureau.

    Clemency Rewards for Red Prisoners

    In May 2011, Chongqing Standing Committee member Liu Guanglei demanded that clemency be granted to prisoners for their excellent performances of red songs, leading to widespread criticism concerning the legality and arbitrariness of such a practice. The Chongqing government issued a vague defense, reiterating that sentence reductions and parole are granted in accordance with the law and that the performance of red songs was not the only basis to evaluate clemency. There are no legal provisions that reference red songs as determining meritorious behavior or remorse – conditions necessary for granting clemency under China’s Criminal Law.

    It’s unclear how many prisoners have benefited from early releases for red song performances. After delving into clemency judgments from the Supreme People's Court website, Dui Hua found that the performance of red songs continues to be commonly used to gauge meritorious behavior and remorse, even for prisoners who are sentenced to life imprisonment or death with reprieve for violent crimes. For example, a prisoner convicted of rape in Heilongjiang was deemed to have an outstanding performance and to have shown remorse due to his active participation in a red song singing contest in 2015. “He actively requested to participate, earnestly took part in rehearsals, memorized well the lyrics, mastered the singing technique, and played a positive leading role [among prisoners].” As a result, he was granted a two-year sentence reduction in January 2016.

    Normally, prisoners can accrue points for acts of meritorious behavior that can then be used towards sentence reductions and parole. Participation in a red song performance generally awards one point. A prisoner from Fujian sentenced to life for aggravated assault earned two points for winning the championship in a red song performance during a “culture week” event in December 2013. He received additional points for his keen participation in political and cultural learning alongside his excellent labor. In October 2015, the Fujian High People’s Court commended his enthusiasm to reform and commuted his sentence to a fixed-term of 20½ years’ imprisonment.

    From government offices to schools and television stations, red song performances have been promoted at the behest of propaganda officials to stir patriotism and party allegiance. While many leftist groups today gather in public spaces in China to sing red songs in praise of Chairman Mao, ironically many have been placed under surveillance and even imprisoned for subversion for organizing underground parties seeking to revive pre-reform era socialism.

    Within the carceral system, Ren Jianyu’s criticisms concerning the superficiality of promoting red songs as a means to rehabilitation ring true. Using public displays of patriotism as a benchmark for rehabilitation indicates a trend towards a more moralistic form of criminal justice and one that opens more opportunities for the arbitrary treatment of prisoners. While China has made early releases more accessible to “ordinary” prisoners who avidly sing praises of the nation, it is likely that those imprisoned for expressing dissent of one-party rule or criticism of the state are less willing to participate. Dui Hua has long observed that the rate of clemency for prisoners convicted of inciting subversion or splittism is far lower than the rate enjoyed by the general prison population. Red song rehabilitation has made clemency for political prisoners more difficult, and further derailed China's crafting of a single-track criminal justice system committed to equal procedural rights for all.

    Wednesday, October 11, 2017

    The United States and European Union Hammer China at the Human Rights Council

    Statements delivered at the Human Rights Council 36th Session; clockwise from top left: the US, China, Germany, and Estonia (representing the EU). Image Credit: UN Web TV.

    At the 35th session of the Human Rights Council (HRC) in Geneva in June 2017, the European Union (EU) was unable to make a statement criticizing China’s human rights record under Item 4 of the Council agenda, “Human Rights Situations that Require the Council’s Attention.” The EU works under the consensus principle, meaning that all 28 member countries must agree on important foreign policy statements, and Greece, which has received massive investments and aid from China (China Cosco Shipping owns a controlling stake in the Greek port of Piraeus), refused to endorse the EU’s statement, effectively killing the initiative.

    Diplomats and representatives of human rights groups were outraged. Rubbing salt into the wound, China thanked Greece. The German foreign minister accused China of trying to undermine “One Europe.”

    Media coverage was intense. In one of many articles in American and European media that covered the debacle, The Washington Post, in an article entitled “Europe divided, China gratified, as Greece blocks EU statement over human rights,” wrote that “Money really can buy love, and in China’s case, it appears to be helping to keep the EU divided and ineffective.”

    In a stunning reversal, the EU made an Item 4 statement at the 36th session of the HRC that ended in Geneva on September 29. The EU statement was accompanied by Item 4 statements by Germany, the United Kingdom, and the Czech Republic. (Switzerland, which is not a member state of the EU, made a statement on Liu Xia, the widow of Nobel Peace Prize laureate Liu Xiaobo, under Item 2 of the agenda.) The EU regretted the death in prison of Liu Xiaobo and called on Beijing to lift restrictions on Liu Xia. It expressed concern over the lack of transparency and respect for due process in the cases of detained human rights lawyers and called on China to ensure fair trials for individuals detained for their human rights activities, including Jiang Tianyong, Wang Quanzhang, Tashi Wangchuk, and Wu Gan. It also called on China to respect cultural diversity and freedom of religion in Tibet and Xinjiang.

    Germany expressed deep worries over widespread human rights abuses in China, especially in Tibet and Xinjiang. It cited infringements on the freedom of religion witnessed at the Larung Gar monastery in Sichuan Province, and urged China to immediately release all human rights defenders, including Jiang Tianyong, Wang Quanzhang, Wu Gan, Liu Feiyue, Huang Qi, Li Tingyu, Lu Yuyu, and Tashi Wangchuk. It asked China to allow visits of the UN Special Procedures.

    The United Kingdom (UK) registered sadness over the death of Liu Xiaobo, and concern over the handling of his case. It too called for the lifting of all restrictions on Liu Xia.

    Dui Hua has failed to find a single media article on the EU’s about-face. Nor has the foundation received an explanation of how it came about. The final decision was said to have been reached by foreign ministers in New York for the United Nations General Assembly meeting. It was also claimed that the final decision was reached in Brussels hours before the statement was delivered. One European diplomat said that Germany in particular was incensed by the Greek scuttling of the EU statement at the 35th session of the HRC, and let Greece know “which side of their bread was being buttered by whom,” a reference to the bailout of cash-strapped Greece by the European Commission and EU member states. Another official cited widespread disappointment with the bilateral human rights dialogue held between China and the EU on June 22-23, 2017. Despite questions by the EU on Liu Xiaobo, the Chinese side said nothing in reply, even though it has emerged that the Chinese side was aware at the time that Liu was gravely ill.

    The statements under Item 4 by the EU, Germany, and the UK could impact the holding of future bilateral human rights dialogues between the countries and China. Prior to the June 22-23, 2017 dialogue, China warned the EU that the dialogue would be cancelled if it made an Item 4 statement at the 35th session of the HRC. Now that the EU, Germany, and the UK have defied China, it may well turn out that sessions of human rights dialogues expected to be held in 2018 will not take place, dealing a fatal blow to the practice of holding human rights dialogues with China.

    The United States Issues Sharp Criticisms at HRC 36

    As if to challenge the narrative, advanced by critics, that the Trump administration does not care about human rights abuses in China, the US Mission in Geneva made three statements that sharply criticized aspects of China’s human rights behavior. Statements were made under Items 3 (“disappearances”), 4 (“situations requiring attention”), and 5 (“human rights bodies and mechanisms.”) No other country made three critical statements.

    The Item 4 statement accuses China of arbitrary detentions, torture, and forced confessions on state media of lawyers and activists. Both Item 4 and Item 5 cite retaliations against family members and others who cooperate with UN Special Procedures. Item 4 says that conditions in Tibet and Xinjiang are akin to martial law.

    Of particular note is language on Hong Kong in the U.S. Item 4 statement: “We are concerned by the decision of the Hong Kong authorities to seek tougher sentences for activists after they served their original sentences.” This is a rare instance of U.S. criticism of Hong Kong at a session of the HRC.

    Another first for the U.S. was the issuance of a statement under Item 3 of the agenda. The statement criticized China for detaining the Hong Kong Causeway Bay booksellers in 2015, and the alleged kidnapping by Chinese security agents of billionaire businessman Xiao Jianhua in a Hong Kong hotel earlier this year. The US Item 3 statement registered concern over enforced disappearances in only two countries, China and Syria, in that order.

    China Reacts

    China’s mission in Geneva issued furious rebuttals to the US and EU Item 4 statements, accusing the countries of widespread and serious human rights abuses. It singled out racism and white supremacism in the United States and the rise of neo-Nazis and xenophobia in Germany. The UK was called out for “the phenomenon of modern slavery in which tens of thousands of migrant household workers suffer ill treatment.”

    China was especially angered by the US statement under Item 3. Not only did the Americans criticize Chinese actions involving Hong Kong, the Chinese side was given only 20 minutes to craft a reply. In one respect, however, the Chinese government was relieved by the action in Geneva. It had been rumored that another joint statement like the one made by the United States and 11 "like-minded countries" under Item 2 at the 31st session of the Human Rights Council would be delivered at the 36th session. It appears that the strategy by Western countries has shifted from making joint statements to making individual statements. Whether this strategy holds going forward remains to be seen.

    Tuesday, September 26, 2017

    The Importance of Mental Health Evaluations in Juvenile Cases (Part II of II)

    Juvenile Justice Information Exchange Illustration by Kathy McCarthy.
    Continuing from Part I, Part II of “The Importance of Mental Health Evaluations in Juvenile Cases” explores how the states of California and South Dakota apply or fail to apply juvenile competency laws when it comes to violent crimes committed by young juveniles.

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

    Facts: A female defendant, Sarah Weeden, who was 14 at the time of the crime, was arrested, convicted, and sentenced for the killing of Navnil Chand, who was killed by gunshot in a robbery by 23-year-old Sertice Melonson. The crime occurred in August 2005 and Weeden’s trial was in 2008. In April 2017, the 9th US Circuit Court of appeals reversed Weeden’s conviction and remanded 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 Weeden’s capacity to form criminal intent. Weeden might be re-tried in juvenile court.

    California on Juvenile Mental Health/Competency: According to the Youth Law Center based in San Francisco, California case law has held, since 1978, that children must be competent to stand trial, but the California legislature only passed a juvenile competence statute in 2010 (i.e., after Weeden’s trial). Since then, the legislative framework provides that if a juvenile case presents evidence that the defendant might not be competent to stand trial, the courts have a variety of informal and formal options to determine competency.

    Defendants Evaluated for Mental Health/Competency Before Conviction? Weeden was never evaluated for competency by the Sacramento District Attorney’s Office, and Weeden’s attorney did not request a psychological evaluation, forming the basis for the reversal of Weeden’s conviction. In reversing the conviction, the 9th Circuit opinion criticized Weeden’s trial attorney “for not seeking a psychological evaluation on Weeden to determine the effect of her youth on her mental state and whether she could form the intent to rob.”

    South Dakota: High Rate of Juvenile Incarceration (366.5-560 per 100,000)

    Facts: In 2000, a jury convicted Daniel Charles of first-degree murder in 2000 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), but such sentences were largely ruled unconstitutional by the US Supreme Court in 2012. Charles was resentenced to a 92-year sentence, a decision that was upheld by the South Dakota Supreme Court in March 2017.

    South Dakota on Juvenile Mental Health/Competency: The South Dakota legislature passed a juvenile competency statute in 2013, giving trial courts wide latitude to order psychological evaluations to determine a juvenile defendant’s competency to stand trial, with the evaluation to occur within 30 days of the court’s order. This law was passed well after Charles was convicted and sentenced for killing his stepfather.

    Defendants Evaluated for Mental Health Before Conviction? Extant accounts of the killing and the trial give no indication that mental health of Charles was considered, as the defense theory was based purely on the claim that Charles accidently shot the victim.

    Why mental health evaluations are critical for juvenile justice

    Among the four violent criminal cases examined, the only one in which the defendant was given a psychological evaluation before adjudication was in Wisconsin, a state that had an existing statute covering juvenile competency hearings. Juvenile incarceration rate was not associated with a greater tendency to conduct mental health evaluations— in the Massachusetts case, the defendant was not evaluated despite presenting significant mental health concerns. These findings support appeals by proponents to implement juvenile competency legislation so that courts follow clear procedures regarding when and how juvenile defendants should receive mental health evaluations. This growing trend is especially important given the complicated mental health issues facing adolescents and questions about criminal culpability that arise from scientific findings about the juvenile brain. Although these cases are a small sample, they suggest that if state legislatures provide statutory guidance on juvenile competency, it becomes more likely that juvenile defendants will receive a professional evaluation before they are sentenced to a lengthy term of confinement. With a mental health evaluation, youth in conflict with the law have a better chance of accessing the necessary mental healthcare and community services that they need to recover and live a better life.

    If the mental health problems of more juveniles are identified and early intervention is prioritized in case handling, more juveniles and communities would also benefit from the policy advances being made in juvenile mental healthcare programs. A 2016 NCBI/NIH study on mental health and juvenile crime examined the effectiveness of various intervention and treatment programs/approaches, finding that treatment models including Cognitive-Behavioral Interventions (CBI) and Functional Family Therapy (FFT) are effective treatment frameworks for juvenile offenders. These models share two major features: integrated systems of care (education, child protection, family participation, and mental healthcare) that intervene in juvenile cases in a collaborative manner to meet the interrelated needs of each individual youth; and an approach to rehabilitation that emphasizes an effective screening and assessment process.

    If we don’t identify mental health issues in juveniles prior to conviction, we run the risk of allowing the carceral system to be the site where juvenile mental health disorders are identified and treated, or worse yet further ignored. Prisons have repeatedly proven to worsen inmate’s mental health and contribute to their recidivism. According to the National Center for Mental Health and Juvenile Justice, the timing of mental health intervention is critical:
    “Youths who immediately receive a mental health screening are more likely to have their problems identified and treated. Often, however, screening and assessment take place only after a juvenile has been adjudicated and placed in a correctional facility. A prompt mental assessment of juveniles at initial court intake allows the information gained to be used in making diversion or other dispositional decisions.”
    Reforms in Nevada are consistent with these findings, as they have appropriated funding and mandated the implementation of mental health evaluations and programs before a youth is convicted and punished. At Mendota Juvenile Facility in Madison, Wisconsin, results from a program to treat psychopathology among violent juvenile offenders are promising. The study finds that even among violent juvenile offenders who exhibit psychopathological traits, interventions focused on positive reinforcement and constant staff presence produced much lower rates of general and violent recidivism 4.5 years after offenders were released compared to recidivism rates among juveniles released from ordinary (non-psychopathology specialist) detention centers.

    Despite the tragic circumstances behind these cases, hopefully they can buoy a growing trend towards juvenile competency statutes in the United States that grant better treatment for juvenile offenders and an overall reduction in juvenile incarceration.

    The Importance of Mental Health Evaluations in Juvenile Cases (Part I of II)

    Girls detained at a Santa Clarita detention facility in Los Angeles. Image Credit: LA Times.
    According to a National Conference of State Legislatures report, approximately 70 percent—or 2 million—juveniles arrested each year in the United States suffer from a mental health disorder. One in five “suffer from a mental illness so severe as to impair their ability to function,” and in addition, juvenile offenders often suffer multiple disorders at once, substance abuse being the most common co-occurrence with mental illness. Dui Hua has previously pointed out that girls in conflict with the law are more likely than boys to attempt suicide and to self-mutilate. And the disproportionately high rate of girls who are also victims of sexual abuse places them at even greater risk of suffering from multiple mental health illnesses.

    Perhaps the most famous recent criminal case in the United States involving mental health concerns and very young female defendants is the “Slender Man” incident in Wisconsin, in which two 12-year-old female defendants stabbed a classmate repeatedly and were charged with attempted homicide. This unusual case reflects the complex intersection between mental health, crime, and juvenile justice policy and suggests that the growing trend toward juvenile competency statutes in certain US states might be a path towards more humane and sensible treatment of juvenile offenders.

    This article is another installment in Dui Hua’s investigation of how different states approach high profile felonies committed by juveniles 15 and younger. In a similar vein to earlier installments, two case studies involve female juvenile defendants and two involve males, and the states chosen represent a variety of juvenile incarceration rates and juvenile policies. See here for a broad 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. Selecting states with varying juvenile incarceration rates and juvenile justice policies is instructive for analyzing juvenile justice trends in the United States.

    This article compares different state-level policy on juvenile competency hearings and applies these policies to the specific facts of each case, inquiring whether the defendants in each case were provided a psychological or mental health exam before adjudication and sentencing. Competency refers to the minor’s ability to understand the proceeding against them and to assist in his or her own defense. Competency evaluations can uncover not just mental health issues facing defendants, but also substance abuse and developmental problems that often co-occur among adolescents.

    This section presents serious crimes committed by juveniles in four states. Part 1 investigates the states of Massachusetts and Wisconsin representing states with relatively low juvenile incarceration rates. Part 2 examines the states of California and South Dakota, representing states with higher juvenile incarceration rates.

    Massachusetts: Low Incarceration Rate (46-109.5 per 100,000 juveniles)

    Facts: Mathew Borges is accused of stabbing Viloria Paulino, his Lawrence High School classmate on November 18, 2016, decapitating him and mutilating his body. Borges was 15 at the time of the crime.

    Massachusetts on Juvenile Mental Health/Competency: A Massachusetts bill that would create a juvenile-specific competence law in Massachusetts has been pending in the legislature for years. In general, juvenile defendants should be briefly evaluated by a court clinician; a more comprehensive evaluation may be conducted in an inpatient setting, but many of juveniles cannot easily be seen in the short same-day time frame created by the initial triage stage.

    Defendants Evaluated for Mental Health Before Conviction? The defendant does not appear to have been evaluated for mental illness since his arrest, despite mental health concerns noted in media reports. Classmates described Borges as a quiet teenager with anger issues, with one classmate saying “He was scary,” and that “He was negative to be around. He seemed mad at the world.” Another classmate stated that Borges was frequently involved in fights.

    Wisconsin: Mid-Low Incarceration 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 separate trials for the two defendants are currently pending. One of the girls, now 15-years-old, pleaded guilty but claimed that she could not be held responsible for her actions on grounds of insanity; she will be placed in a mental hospital for three years. The trial for the second girl is scheduled to begin on October 9.

    Wisconsin on Juvenile Mental Health/Competency: Wisconsin appears to be among a minority of US states that have passed laws providing for mental health screening of juvenile offenders via competency hearings, which occur before juvenile defendants can be sentenced to confinement. Wisconsin has had this provision on its books since 1995; under Wis. Stat. 938.295(2)(a), in cases where “there is probable cause to believe that the juvenile has committed the alleged offense and if there is reason to doubt the juvenile’s competency to proceed, the court is required to order the juvenile to be examined by a psychiatrist or licensed psychologist.

    Defendants Evaluated for Mental Health Before Conviction? Both defendants in the Slender Man case were assessed in 2014 for their competence to stand trial. Since then, one defendant was diagnosed with schizophrenia and both defendants have pled not guilty by reason of mental disease.

    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

    Thursday, July 6, 2017

    The “Hidden Rules” of China’s Criminal Justice System

    Rule of Law was a centerpiece of the Fourth Plenum meeting of the Central Committee of the CCP in October 2014. Image Credit: Getty Images.

    Xi Jinping made judicial reform a priority item on his agenda after fully taking power in 2013. He promised to “construct a rule-of-law country” and repeatedly emphasized the need for governing with respect to Chinese law and the constitution. Legal institutions were the focus of the “Fourth Plenum” meeting of the Central Committee of the Chinese Communist Party in October 2014, which pledged to “strive to let the popular masses feel justice in every court case.” Since then, efforts have been undertaken to “deepen” reform of the country’s legal institutions and officials have been served notice to achieve their reform targets before the upcoming 19th Party Congress later this year.

    In the run up to the 19th Party Congress, we should expect to hear more talk of the great achievements and successful reforms of China’s judicial system. In February, the Supreme People’s Court released a white paper on judicial reform describing its progress in improving the efficiency, accountability, and transparency of the judicial system and declaring that 63 of the 65 reform goals it had set for itself to achieve by 2018 had already been basically accomplished by the end of 2016.

    The reform of China’s law-enforcement and judicial institutions has certainly made some progress in recent years, but are there problems in the country’s legal system that remain untouched by these reforms and continue to undermine the ability of those institutions to deliver justice?

    According to Professor Chen Ruihua, an expert on criminal procedure law at Peking University Law School, the answer is a resounding yes. In a recent blog post, widely circulated online, Chen observes that there are 17 “hidden rules” that govern how the Chinese criminal justice system “really” operates. These rules describe a system of collusion between institutions intended to check each other’s powers, courts that are fundamentally biased against defendants, and a coordinated effort to limit the impact of defense lawyers.

    A list like this is clearly not meant to be analytical, though Chen has spoken and written quite frankly and at length on the flaws he observes in China’s criminal justice system. At a time of renewed ideological attacks against judicial independence and separation of powers, it takes courage to even raise the possibility that the progress of Chinese legal reform is not everything it’s made out to be.


    17 “Hidden Rules” of China’s Criminal Justice System

    In the Chinese criminal justice system, the “gong-jian-fa” institutions (public security, procuratorate, and courts) follow a set of “hidden rules” outside of the formal legal system. These “hidden rules” have great vitality and have operated over a long period of time, making it difficult to change them despite revisions to the criminal procedure law or even judicial reforms. Professor Chen Ruihua sums up these “hidden rules” as follows:

    1. The investigative organs will only file a case for investigation when that case has already been solved.
    2. Most of the public security organ’s criminal investigation activity is completed before issuing the decision to arrest.
    3. The vast majority of cases are only solved after obtaining a confession of guilt by the suspect.
    4. If it were not for the purposeful restriction of the rights of defense lawyers and the extralegal detention measures against suspects, solving criminal cases would be extremely difficult for the majority of investigative organs.
    5. Compared to plaintiffs in civil trials, the public prosecutor in a criminal trial has a far stronger appetite for “winning”.
    6. When a case lacks clear facts or evidence, the procuratorate would rather withdraw the prosecution than allow the court to acquit the defendant.
    7. Almost all police and procurators treat defense lawyers with a certain degree of hostility.
    8. When a case lacks clear facts or evidence, courts will generally issue decisions that “give lenient punishment when there is doubt” or “remand for retrial;” the “presumption of innocence” is an extremely rare exception.
    9. Nearly all first-instance trials proceed by reading the record of criminal investigation aloud.
    10. In cases where the defendant hasn’t put forward enough exculpatory evidence, the court’s judgement is basically a kind of process to affirm the conclusions of the investigators and prosecutors.
    11. The vast majority of criminal judges lean toward the side of prosecution and will do everything they can to avoid allowing a “guilty” defendant to escape justice.
    12. Judgments in the vast majority of cases are reached outside of the trial process.
    13. The vast majority of judges turn a blind eye to procedural violations of law made by police, procurators, and first-instance trial judges.
    14. When a defendant refuses to admit guilt during the investigation or trial phases, it becomes a significant basis for the court to impose a more severe punishment.
    15. In the vast majority of cases it is a “responsible” judge that makes the judgement decision.
    16. Judges would rather write extremely detailed “trial conclusion reports” than provide detailed reasoning for their judgments.
    17. Whether it is the individual police, procurator, judge, or the “gong-jian-fa” organs, each has a direct interest in how criminal cases are decided.