Wednesday, July 7, 2021

China’s National People’s Congress May Expand Legal Aid in Death Penalty Cases

The closing ceremony of the 29th session of the 13th NPC Standing Committee on June 10. Image credit:   

China’s National People’s Congress is considering a new Legal Aid Law. Among its many provisions, Article 24 of the new law would extend access to legal aid to condemned defendants during final death penalty case review at the Supreme People’s Court. 

China’s legal system already provides legal aid to defendants in the trial phase of death penalty proceedings. However, legal aid does not currently cover the crucial final death penalty review stage of China’s capital punishment process: death penalty review at the Supreme People’s Court. Capital defense lawyers have dubbed the lack of legal aid in death penalty review the “last mile problem” of Chinese capital defense. The new law would finally address this last mile, bringing death penalty review under the scope of legal aid and guaranteeing universal representation during all stages of capital proceedings.  

The law would also improve the quality of death penalty counsel at both trial and review. The draft law mandates that legal aid lawyers representing clients in cases carrying a possible sentence of death or an indeterminate life sentence have at least three years of legal practice experience.  

The Development of the Legal Aid Law  

If enacted, the new Legal Aid Law will be China’s first comprehensive legislation on legal aid. Up until now, China’s legal aid has been governed by State Council Regulations. Implementation of the regulations takes place at a local level, and the quality of legal assistance has been uneven. Critics charge that low funding, low status, and lack of oversight lead to substandard representation in many legal aid cases. The new law earmarks funds and sets new standards in an attempt to address these problems. 

In recent years China’s leaders have signaled their intention to overhaul state legal aid as part of the Xi administration’s comprehensive effort to increase “governance through law.” In 2015 the CCP issued “Opinions on Improving the Legal Aid System,” a policy statement setting an agenda for improvements across the legal aid system. The document placed special emphasis on capital cases, including a call for legal aid in death penalty review cases. The 2015 opinion also called for an expansion in criminal representation generally, including the use of duty lawyers—criminal attorneys who can provide basic on-site legal advice at detention centers and courts. In 2018 the Supreme People’s Court and the Ministry of Justice issued “Measures on Launching the Pilot Program for Full Coverage of Lawyers’ Defense in Criminal Cases.” That measure did not specifically provide for death penalty review representation, but it has improved standards and increased access to defense lawyers in all criminal cases.  

The new Legal Aid Law is currently under review at the National People’s Congress. The first draft of the new Legal Aid Law was released in January. A second draft was introduced for public comment in June. The second draft notably improves upon the first by including an additional provision specifying that appointed legal aid counsel must have at least three years of experience in all death penalty review proceedings and trial cases carrying the possibility of an indeterminate life sentence or death sentence. 

Legal Aid and Death Penalty Review 

Death penalty review is the final stage of legal proceedings in China’s capital punishment system. A capital defendant in China initially undergoes a trial of the first instance, typically at an intermediate court. If found guilty, the defendant faces a trial of the second instance, typically at a provincial high court. Following a capital sentence in a second instance trial, the condemned defendant’s case will undergo a final death penalty review. In 2007 the Supreme People’s Court retook the authority to perform death penalty review from provincial courts as part of its sweeping efforts at death penalty reform. Since that time, all death penalty review proceedings have been handled by the Supreme People’s Court in Beijing. 

The Supreme People’s Court has not previously recognized a universal right to legal aid in its death penalty review proceedings. China’s Criminal Procedure Law (Art. 35) requires the provision of a legal aid lawyer in cases in which defendant faces an indeterminate life sentence or death sentence. This provision should logically extend to death penalty review. However, the Supreme People’s Court has declined to apply this provision in death penalty review.  

The conference on providing legal aid for death penalty review. Image credit: Southern Metropolitan 

Currently condemned defendants may choose to hire counsel for the proceedings; however,  if they do not do so, the state will not provide a lawyer for them. While official death penalty review data is a state secret in China, the available evidence indicates that under the current system—in which legal representation at the review is not mandatory and a defendant must hire an attorney privately—most condemned defendants do not retain a lawyer for the proceedings.  

Experts Debate the Draft Law 

On March 27 a group of 20 scholars and lawyers in China came together to discuss the implications of the death penalty review representation provision contained in the new Legal Aid Law. The conference was hosted by China University of Political Science and Law and Shangquan Law firm, a leading criminal defense firm in Beijing. Conference participants noted both the promise of the new legal aid law and the deficiencies that still exist in death penalty in China. 

Defense lawyers pointed out that while universal legal representation in death penalty review is an important legal development, obstacles to lawyer engagement with death penalty review proceedings hinder the substantive impact of the new law. For example, although death penalty review judges are legally mandated to meet with defense counsel, attorneys report difficulty in arranging these meetings. Lawyers also report difficulty accessing casefiles, and often end up taking pictures of documents on their phones because they cannot get copies. 

Scholars at the conference expressed concern that the expansion of legal aid to death penalty review might carry unexpected consequences for the legal market: legal aid lawyers assigned to death penalty review cases may lack experience and qualifications for this technical work, and the provision of these lawyers may also crowd out competent private lawyers who currently focus on death penalty practice. It is therefore important that the legal aid system provide sufficient compensation for this representation and also establish qualifications for death penalty review representation. The second draft of the Legal Aid Law, which was released subsequent to the conference, goes some way to addressing this concern by providing that legal aid counsel in both capital trial and death penalty review cases must have more than three years of related practice experience. Standing committee representatives also included a suggestion to include legal aid costs in the government budget, beginning at the county level. However, it is unclear whether death penalty review at the SPC would be covered by such a measure at the national level. 

Since the Supreme People’s Court retook the power of death penalty review in 2007, the Shangquan law firm in Beijing has been conducting empirical work on death penalty review representation. This work has included pro bono death penalty review representation in the past. At the conference, Shangquan law firm director Mao Lixin formally announced a new pro bono program that will provide pro bono representation for indigent condemned defendants facing death penalty review. The program was intended to run through March 2021, or until the new Legal Aid Law goes into effect. 

By Tobias Smith