Wednesday, June 6, 2018

Mixed Signals in Reports of “Zero Confession” Executions

In 2016, Nie Shubin was exonerated 21 years after his execution. Nie's parents burn a copy of the exculpating court documents near Nie's tomb in Hebei province, December 2016. Image credit: SixthTone.

“Hunan Has Executed its First Criminal in a ‘Zero Confession’ Case; The Female Drug Lord Went to Her Death Refusing to Admit to Drug Trafficking” reads a recent Chinese news headline. The coverage suggests that Yang Kelian—a middle-aged woman with an elementary school education—thought that she could get away with her crimes if she did not confess, but she was nonetheless found guilty and put to death. Dui Hua has uncovered similar recent reports of “zero confession” capital convictions and executions for non-violent drug crimes in Sichuan, Jiangsu, and Hubei.

In a healthy legal system, the presence or absence of a confession does not bear on the fairness and accuracy of judicial proceedings. Sometimes the guilty confess and sometimes they do not; sometimes the innocent insist on their innocence, but sometimes they admit to crimes they did not commit. Unfortunately, in China suspects are often pressured to confess, and face consequences if they do not. In recent years China has embarked on criminal procedure reform aimed at addressing these concerns. Insofar as recent “zero confession” headlines herald a departure from a singular focus on self-incrimination, these reports signal a laudable development. However, upon closer inspection, these cases depict a legal process in which the role of confession remains problematic.

The tone, timing, and facts of these reports on zero confession cases send ambiguous signals about the rights of defendants and the role of evidence in capital cases today. In tone, defendants are portrayed as obstinate or foolhardy in their refusal to admit guilt. With respect to timing, state media tends to report these cases in the run-up to high-profile and heavily politicized anniversaries such as China’s June 26 International Anti-Drug Day. The evidence in these cases is impossible to judge independently, because these verdicts are not being posted online, despite the Supreme People’s Court’s professed commitment to release case documents on its new central database. Altogether, despite invoking improvements in criminal procedure, these reports serve as veiled warnings about the consequences for any criminal suspect who might wish to stay silent.

“Zero Confession”

What is a “zero confession” (零口供) case? In a widely cited 2001 article published in the People’s Procutorial Monthly, criminal law scholar He Jiahong describes “zero confession” as a legal standard used by Chinese law enforcement in deciding whether to pursue prosecution. When a defendant has not confessed, He writes, the procuratorate should view the lack of a confession as having zero or nil confessions—that is, the lack of a confession is indicative of neither guilt nor innocence. The procuratorate should therefore rely on the sufficiency of other evidence in deciding whether to proceed with the case.

While the term zero confession was originally limited to charging decisions, it is now a catch-all term for defendants who do not confess at later stages of adjudication as well. In a zero confession drug trafficking case from Hubei, defendants Long and Hong (both are presumably pseudonyms) did not confess during the trial. And in the case from Hunan, Yang Kelian was convicted and executed without ever making a confession.

The zero confession standard emerged as a response to a Chinese criminal procedure culture in which nearly all cases include confessions and virtually all prosecutions result in convictions. This system has long been criticized for both incentivizing coerced confessions and producing wrongful convictions and wrongful executions. In 2012, China amended its China’s Criminal Procedure Law to better safeguard the rights of criminal defendants and improve the rules of evidence, particularly in capital cases. While the 2012 Amendment (which took effect on January 1, 2013) was a step forward for criminal procedure reform, the language of the Amendment is in some places contradictory, and fails to establish an unambiguous “right to silence” for criminal defendants. The amendment also falls short in establishing rules of exclusion that prevent the introduction of confessions obtained through coercion. In practice, it is widely reported that law enforcement still coerces confessions in many criminal cases, including through the use of torture. In 2008, a grocery shop owner named Nian Bin was sentenced to death for allegedly poisoning his neighbors. Nian claimed he confessed to the crime under the duress of police torture. Years later, Nian’s lawyers proved that the police had fabricated evidence against Nian and withheld information that would have proven his innocence. One of most famous cases of forced confession involving torture and resulting in execution is the case of Nie Shubin. In 1995, Nie was sentenced to death for murder, even after rights groups and fellow inmates argued that Nie’s confession was forced under torture. More than twenty years later it was discovered that Nie was in fact wrongfully convicted when the real perpetrator came forward to admit guilt. In Nian’s case, the Fujian high court upheld the death sentence despite also finding that the case had “unclear facts and insufficient evidence.” In Nie’s case the only evidence was the confession he gave under police torture.

A common theme in zero confession case coverage is the sufficiency of evidence in the absence of confession. In this regard, media coverage shines a welcome light on the legal and practical requirements of substantiating a case without the words of the defendant. In the case of Wei and Quan, two defendants from Jiangsu (who are only identified by last names), reports go to great pains to enumerate the evidence: including cell phone records, eye witness testimony, confessions from other defendants, and bank records. Ultimately, this evidence was deemed sufficient to sentence the two people to death for sale and transport of drugs.

Recalcitrant Defendants

Although the term zero confession was originally intended as a value-free description of a defendant’s decision not to confess, state media reports of zero confession convictions universally portray a defendant’s lack of confession as evidence of conniving or bad faith, rather than an assertion of rights or a sincere avowal of innocence. In describing the motivations of defendants in a case from Hunan, the reporter asserts that the two individuals, Long and Hong, believed that so long as they did not confess, they would not be convicted of a crime. Similarly, defendant Yang Kelian is described as thinking that as long as she didn’t confess, she would get away unpunished. In a zero confession case of drug manufacturing in Sichuan, state media reported that a Mr. Liu (full name withheld) was trying to “escape the crackdown of public security agencies. In the face of the interrogation of the police, Liu, a suspect in drug crimes, was not only deaf and mute, but also refused to sign all legal documents.”

Nowhere in this coverage of zero confession cases is it suggested that these defendants have a right to stay silent, or that they might choose to do so because they believe themselves to be innocent. As is often the case in China, neither the condemned nor their representatives are interviewed or quoted in the coverage; in some of the reported cases defendants have already been executed. Reporters based their stories exclusively on law enforcement officials and investigators.

Non-Violent Drug Crimes

Although zero confession cases occur for other types of criminal charges, there appears to be a trend in state media reports that link zero confession cases with capital drug crimes in particular. This trend is likely due to both an underlying rise in capital drug cases and a Chinese state policy to combat drug crimes with harsh punishment.

China has a drug problem. By the country’s own account, drug users, drug cases, and drug seizures have all increased dramatically in recent years. The increasing ease of manufacturing synthetic drugs has also dramatically scaled up drug operations and diffused drug enforcement challenges from border regions into the nation’s interior.

China’s response to the drug epidemic has been to continue a course of punitive measures for narcotics, even as the state has reportedly eased off capital punishment for other types of crimes. Today, four types of drug crimes—manufacturing, trafficking, sale, and smuggling—are eligible for the death penalty in China. It is estimated that drug crimes make up a large portion of China’s annual executions. China is one of a small minority of countries that imposes the death penalty for drug crimes, a practice that violates both international laws and norms (although US President Donald Trump has recently voiced support for executing those convicted of drug crimes).

China does not seem to be moving away from imposing capital punishment for drug offenses. Indeed, state media reports of zero confession convictions reflect not only the underlying phenomenon of capital drug cases, but also state efforts to publicize a crackdown on drugs. Two of the cases highlighted here, from Hubei and Jiangsu, were published in the week leading up to China’s June 26 International Anti-Drug Day. State media traditionally announce harsh punishments for drug offenders during this anniversary. Coverage of zero confession cases seems designed to make a public example of defendants who do not confess. One story about the Yang Kelian case from Hunan sums up, “presently, the number of drug cases is increasing. The quantity of drugs is increasing. Drug networks are becoming increasingly widespread. The age of participants is getting younger. Connecting drug crimes is becoming easier. This case has a deterrent effect.” A story about the Jiangsu case concludes in a similar way, stating that sentencing the two defendants to death “is of great significance for cracking down and preventing drug-related crimes.”

Transparency and Rule of Law

Ultimately the fairness of a conviction in any capital case—regardless of whether a confession is involved—can only be assessed through a public judicial process and a transparent court record. The Supreme People’s Court has made valuable steps in this direction by launching a central website hosting judgments from China’s courts. A review of the documents in zero confession cases is a necessary check on the claims about these cases published in state media.

Dui Hua conducted a search on the central court website for records related to six defendants sentenced to death in four zero confession cases in four different provinces over the last year. Each case was reported in some detail by state media, (although in the cases from Sichuan, Hubei and Jiangsu just the defendants’ surnames or pseudonyms were provided). Dui Hua was able to locate a record related to only one the six defendants, Yang Kelian, the “Female Drug Lord” mentioned at the beginning of this article. That record is from the case of a co-defendant; it is a Hunan High Court second instance trial verdict from 2017 for defendant Chen Wenxin. The record indicates that Chen, who was given a suspended death sentence for drug trafficking, named Yang in a confession he provided to the court. Despite the detailed media accounts of Yang’s case, the judgment in her own case has not been published.

Dui Hua calls on China’s Supreme People’s Court to publish all death penalty case records online. As a first step, the court should consider making public any cases that have been reported in state media. That way, even if those put to death will remain silent forever more, the public may still have the information necessary to make up its own mind about a defendant’s choice not to confess.