Ethnic Nationalism Along the China-Burma Border

A map indicating the location of the Wa population within China's Yunnan province, which borders Burma.

Ethnic Nationalism Along the China-Burma Border

China watchers are well aware of ethnic unrest involving Tibetans and Uyghurs, but little is known about independence movements and cultural rights activism among other ethnic minorities. Dui Hua research has explored the suppression of Christianity among China’s ethnic Koreans. Now, based on public security records obtained by Dui Hua (PDF 1.2MB), we expand our understanding of this topic to include the Wa and Lahu.

The Wa and Lahu primarily inhabit mountain villages along the border between China's Yunnan Province and Burma. Today there are an estimated 1.2 million Wa people worldwide, with 800,000 in Burma and 400,000 in China, and 800,000 Lahu, of whom more than half reside in China.

In the latter half of the twentieth century, authorities in Yunnan's Simao Prefecture (or present day Pu'er City) targeted the Wa and Lahu people in efforts to suppress nationalistic sentiments. Official sources trace ethnic nationalism among these groups to Zhadie (扎谍), a Wa man born in a contested territory between China and Burma in 1924. Records describe him as an overseas separatist instructed by the United States and Kuomintang to carry out counterrevolutionary activities on the mainland. (Some Kuomintang forces refused to retreat to Taiwan and instead withdrew to Burma after the Communist Party established the People’s Republic of China in 1949.)

Calling himself “old Buddha,” Zhadie saw increasing support among Burmese Wa and Lahu after the end of World War II. In 1950, he began sending his followers to Pu’er and Lincang, Yunnan, to spread the idea of establishing a Wa-Lahu nation.

Zhadie argued that Wa-Lahu independence was necessary to free the two ethnic groups from Han Chinese oppression. According to government records, one of his slogans was: “Han Chinese repress Wa. Exterminate the Han.” Early on, Zhadie likened himself to the Mao Zedong of the Wa and Lahu people. In the 1980s, he compared himself to the Dalai Lama, as the spiritual leader of Wa and Lahu in China and Burma.

The number of Zhadie's supporters is unknown. Spotty government records state that as many as 3,500 people from more than 30 Wa villages gathered in Yunnan in March 1959 to perform folk dances led by Zhadie's followers and to listen to their nationalist speeches. The government responded by saying that the villagers had been “deceived” and by reinforcing patriotic education in the area.

Between 1950 and 1961, government sources document 48 instances of infiltration associated with Zhadie. Eleven were small-scale armed rebellions or disturbances that were swiftly suppressed by the much larger joint forces of the People’s Liberation Army (PLA) and public security. The largest of these armed activities took place in June 1951. During the incident two to three hundred of Zhadie's rebels besieged the Wendong District government and kidnapped communist cadres with the support of Kuomintang forces.

Burma agreed to let the PLA fight Kuomintang forces on Burmese soil in 1961, putting Zhadie’s mainland activities on hold for approximately two decades. Zhadie’s influence diminished without the military backing of the Kuomintang, but it had a resurgence during the reform and opening in 1978.

From the mid-1980s to 1998, Simao police arrested 66 people in 20 incidents of subversion and sabotage linked to Zhadie. During the period, he made plans for a Wa-Lahu nation more concrete, stating that it would be established in the year 2000 and that he would serve as president. In March 1990, nearly 200 villagers joined his core supporters in celebrating the establishment of the “Zhadie District government” in Yunnan’s Ximeng County. Between 1991 and 1993, his supporters went to 121 Wa and Lahu villages to hand out photos of Zhadie and seals and flags of the new "regime."

It was not until the mid-1990s that China addressed the problems through diplomacy. In the spring of 1996, Chinese officials traveled to Burma's Mongmao County to meet with Zhadie, then age 72, and announce that he and his adherents had violated Chinese law. China threatened to impose sanctions on Burma and to close the border for religious worship during Chinese New Year. In response, the local Burmese government began imposing restrictions on Zhadie in 1998, greatly diminishing his influence in China.

Nonetheless, nearly ten years later, on December 27, 2006, The People's Daily named Zhadie as an overseas separatist force in Yunnan that was funded by western countries and supported by the US government and religious organizations.

Guangdong High Court Asks Why So Few Are Found Innocent

A recently freed, wrongfully accused man becomes emotional during a 2014 interview. Credit: Nandu.com

Since 2012, Chinese legal authorities have overturned a series of high-profile convictions and taken steps to prevent miscarriages of justice, but one question is still being asked: why do Chinese courts acquit so few defendants? (In 2013, the acquittal rate rose for the first time since 2000, growing annually from six acquittals per 10,000 adjudications to seven.) Some argue that institutional support for conviction stands in the way of systemic change.

Researchers at Guangdong High People’s Court wanted to find out for themselves, conducting interviews, holding seminars, and analyzing court documents related to acquittals throughout the province. The results, which were published as a report last year, offer a fascinating view into how those within the judiciary interpret the institutional, legal, political, and social factors that shape the way Chinese courts operate.

The researchers report that, for the five years between 2008 and 2012, Guangdong courts acquitted only 198 individuals in 180 cases. This represents a mere 0.04 percent of all individuals subject to criminal decisions that took effect during the period. The great majority (86 percent) of acquittals were on grounds of insufficient evidence, with a handful of others issued for things like self-defense, mental incompetence, or defendants who were under the age of 16. Acquittals occurred in a wide variety of cases—though not in any involving state-security offenses—but were most frequent in cases of assault. The trial process typically took longer than average when it resulted in acquittal, extended in accordance with the law by both courts and prosecutors. The average length of a trial that ended in acquittal was 169 days, or about five months, with the longest stretching to 504 days and the shortest at 55.

These quantitative results are not the most interesting part of the report, in part because there are so few cases to study. Much more interesting are the authors’ observations on the factors contributing to the dearth of acquittals, the impact this has on the legal system and society at large, and what might be done to remedy the situation.

Acquittal Averse Strategies

The extremely low number of acquittals doesn’t mean that criminal prosecutions in Guangdong are rock-solid. The report points out that, when the facts of the case are unclear and evidence is insufficient, judges use a number of strategies other than acquittal. In relatively minor cases, for example, courts might work out an informal “plea bargain,” promising to hand down a non-custodial penalty (like a suspended sentence) in exchange for a defendant’s promise not to appeal. In death-penalty cases, on the other hand, a court might issue judgments “with room to maneuver” (liu you yudi caipan)—imposing a more lenient suspended death sentence that gets commuted to life imprisonment (and then, later, a fixed-term sentence) almost automatically. Appeals courts are in an even better position to shift responsibility, as they can always send cases back to a lower court for retrial rather than rule to acquit.

Another common way courts avoid acquittals is to allow the prosecution to withdraw its indictment, which it may do at any point before a verdict is announced. In some cases, this has the effect of ending the case against the defendant, but in others, the prosecution can decide to submit a new indictment or send the case back to police for additional investigation. This amounts to a waste of resources, the report says, and results in individuals being locked up for far longer than they ought to be.

The report argues that prosecutors, with the help of the courts, are abusing this provision of the Criminal Procedure Law (CPL) and that the practice needs to be more strictly regulated. For example, it recommends that prosecutors generally not be allowed to withdraw indictments for unclear facts or insufficient evidence. This is because the CPL already gives prosecutors two opportunities to request trial adjournment for additional investigation. If this is not enough, the report concludes, then the court should exercise its power to issue an acquittal. The report also suggests prohibiting prosecutors from withdrawing an indictment once investigation of the facts and evidence has begun at trial and, when withdrawal is approved, limiting prosecutors to one re-indictment.

Inside the Pressure Cooker

Why is it necessary to go through so much effort to avoid issuing acquittals? A recurring theme throughout the report is pressure. Stability-first governance campaigns and a whole system of associated performance measurements create pressures for conviction throughout the criminal justice system. Written and unwritten rules place a premium on rates of case-solving, arrest approval, and conviction as factors used to measure police or procuratorate effectiveness and can be tied to individual promotion or ranking. Since acquittals have the effect of lowering these statistics, police and prosecutors are incentivized to seek conviction and mobilize all manner of available resources to influence courts not to acquit.

As the final stop in the criminal process, courts bear the brunt of the pressure to convict that’s built into the system. As the report puts it: “The public security bureau is responsible for cooking the meal and the procuratorate for serving it. Last to come, the court has only two choices as it faces this meal—either eat up or reject all the work that the first two institutions have already put into the case.” Acquittal, in other words, puts courts in potential conflict with other local law-enforcement bodies that are expecting conviction.

In major cases, especially homicides, police often face considerable political and social pressure to bring a culprit to justice. When they do make arrests, it can lead to merit citations being publicly issued to the investigation team even before indictment, let alone conviction. If the court later acquits, not only must these citations be withdrawn, there will likely be compensation claims made against the police for wrongful detention. In some cases, the same individuals who had been rewarded for solving the case might end up facing investigation for misconduct or even criminal liability.

Prioritizing Public and Process

There are many negative consequences arising from courts’ failure to issue acquittals, according to the report. The most obvious effect is on the credibility of the courts. On this point, the report is particularly frank, warning: “the public is already deeply suspicious and dissatisfied with the [level of] fairness in our criminal justice system, and wrongful convictions are adding fuel to the fire.” They continue, stating: "Convictions based on protecting face and reducing pressure only bring momentary peace and tranquility. When and if the bomb will explode all becomes a matter of luck. But what’s certain is that, the moment the bomb goes off, the courts will suffer the heaviest casualties."

In order to prevent calamity, the report recognizes that courts must exercise their judicial powers more independently, but it provides little advice on how to do so, apart from improving awareness and understanding of the law and legal principles like the presumption of innocence. There is no mention of the "coordination” between police, procuratorates, and courts by the party’s politico-legal committees and little on the role of adjudication committees, where senior court officials get an opportunity to weigh in on how to rule in complex or important cases they have not personally heard.

In fact, the authors appear to believe that increased communication between investigators, prosecutors, and judges can help judicial authorities make their case about resolving problematic prosecutions through acquittal. They recommend, for example, having police and prosecutors sit in on adjudication committee meetings in cases where problems arise. The assumption is that this will enable the courts to exert influence over the other law-enforcement bodies as opposed to the other way around.

One thing that seems to be on the minds of the report’s authors is a responsibility system for wrongful convictions. They make the case that mistakes are inevitable within any legal system and that neither wrongful convictions nor acquittals should automatically be thought of as “mistakes” for which someone must be punished. That is what happens, they suggest, when too much emphasis is placed on outcomes without giving due weight to process.

This is especially important for judges, they argue, and requires transforming the way that judges are evaluated and how data is used. They believe that judicial statistics like conviction rates have no place in deciding promotion or professional ranking. They do, however, see value in continuing to collect statistics and conduct ongoing research in order to evaluate the performance of the criminal justice system as a whole and to boost its credibility with the public.

Xinjiang’s State Security Prisoners: Failing to Reform (Part 2 of 2)

Twelve men accused of ESS are publicly sentenced in Yili (Ili) Kazakh Autonomous Prefecture, Xinjiang, September 18, 2008. Photo credit: iyaxin.com

In 2008 the Xinjiang Rule of Law Leading Small Group published a policy document examining a number of challenges faced by prison authorities in managing the region’s endangering state security (ESS) prisoners. The first two sections of the document, which discuss the situation facing Xinjiang prison work and the psychological profiles of ESS prisoners, are translated here. What follows is a translation of the last two sections of the document. These sections describe attitudes towards reform among ESS prisoners and methods for prisons to improve their reform work. The document emphasizes the “clear hostility” of ESS prisoners, noting that it is “extremely common” for them to resist reform.

The document observes that by concentrating ESS offenders, prisons become fertile grounds for reactionary groups to recruit members and may ultimately become targets for attack. The language used in this paper conveys the sense that prison authorities are engaged in battle with enemy forces on China’s frontier and that, in the interest of “stability above all else,” military-level investments in personnel, equipment, and facilities are necessary.

Prisons are instructed to “strategically despise all enemies but tactically take [them] seriously” and to “divide and demoralize.” In some cases, the document specifically calls for solitary confinement, fixed sleeping positions, and prohibitions on sitting.

Among the groups identified in the document as a proponent of the “three forces” of ethnic separatism, Islamic extremism, and terrorism is the East Turkestan Islamic Party (ETIP). Chinese officials have ascribed a number of bombings and hijackings to the group, which was labeled a terrorist organization by the US government in 2002. As recently as May 2015, Mettursun Eziz was sentenced to four years’ in prison for circulating religious materials produced by ETIP.

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On the Current Situation and Countermeasures for Reform of
ESS Prisoners under the New Circumstances [Excerpt]
August 4, 2008

[The first two sections of this document are translated here.]

III. Reform Situation

1. Basic Situation
   
   The number of endangering state security (ESS) offenders in Xinjiang prisons has risen annually since 2000. Prior to being arrested, these ESS offenders mainly resided in four regions: Kashgar, Hotan, and Aksu in southern Xinjiang and the Ili Kazakh Autonomous Prefecture. People between the ages of 18 and 40 account for a relatively large number of these ESS prisoners, revealing that young men are always the main targets for recruiting and training by ethnic separatists. An increasing number of these prisoners are serving long sentences, and fewer serving short terms. From this, we can see two things. On the one hand, the intensity of our strikes against ESS offenders has been increasing, and the battle against them intensifies every day. On the other hand, [the phenomenon of] ESS crime is becoming increasingly acute, and it is becoming increasingly difficult to reform ESS prisoners. The process of educating and converting ESS prisoners is complicated, and the responsibility is formidable. Moreover, as the number of ESS offenders who have completed their sentences and been released from prison increases, the work of post-release monitoring and “rehabilitation” becomes even more difficult.
   
2. Current Reform Situation
   
   At present, one can say that the reform of ESS prisoners is mostly in a stage of equilibrium. But because these prisoners are influenced by a special mentality, social background, and religious ideology, one can identify two or even more extremes in the overall development trend for the reform of ESS prisoners. This mainly manifests itself in the following five forms.
   
1. Those who increase their understanding and gradually convert. This type accounts for 2.39 percent of ESS prisoners. Most are relatively young, have had relatively little religious influence, have a relatively high level of education, and were accomplices in their crimes. After a certain period of education and reform, they are able not only to acclimate to the reform environment but to more easily accept new knowledge and ideas. These are the easiest ESS prisoners to reform.
2. Those who sit back and observe, hesitating to move forward. This type accounts for 19.22 percent of ESS prisoners. Most of them lack fully developed thinking, are somewhat less affected by narrow ethnic or religious views, and lack willpower and judgment. Although they recognize that maintaining ethnic separatist views does not have positive results, they do not recognize that prisons are resolute in striking against ethnic separatists. They are unable to grasp the opportunity to reform. They hesitate, watch those around them, leave things to chance, and go with the flow. In the course of education and reform, it is only necessary to appeal to emotion or reason to make them recognize that ethnic separatism has no future and is a dead-end; then they are easy to convert.
3. Those who follow the crowd and parrot what others say. This group accounts for 36.43 percent of ESS prisoners. Most of them are not set in their thinking and have rather large mood swings. They have incorrect views about ethnicity and religion, have a difficult time properly distinguishing fact from fiction, and have a low level of education. In the process of reform, they run hot and cold, do not have thoughts of their own, vary in their zeal for reform, and are easily influenced by ESS prisoners around them and by other relevant matters.
4. Those who pretend to follow one path but secretly pursue another. This type accounts for 30.53 percent of ESS prisoners but has quite serious negative side effects. Typically, this kind of person was a principal, leading, or core member of a criminal gang and possesses more systematic reactionary thinking and stronger organizational powers and influence. During the process of reform, they appear to have a positive attitude and submit to management, are eloquent, and exhibit a relatively good attitude towards acknowledging guilt. But deep down they continue to possess extremely strong anti-social and separatist thinking, and they maintain an attitude of stubborn resistance throughout the process of reform. In prison management work, it takes extra effort to control and educate this type of person.
5. Those with stubborn thinking and a greater potential for risk. There are relatively few of this type, about 11.52 percent of [ESS prisoners], but their ethnic separatist and extreme religious ideologies are deep-rooted. After entering prison they typically maintain an attitude of refusal to stop until their goals are achieved, causing their criminal motivations to grow stronger. On the one hand, they seek ways to make contact with ethnic separatist forces remaining outside prison. On the other hand, they wait for opportunities to link up within the prison, continue to propagate their ethnic separatist speech and ideas, and carry out illegal religious activity in vain hope that, once the time is right, they can carry out violence or organize an escape, prison riot, or prison break and kill prison guards and civilians. If they were ever able to carry out their plans successfully, the consequences would be too terrible to imagine.
3. Clear Hostility
   
   In recent years, it has become extremely common for ESS prisoners to resist reform, engage in sabotage, and plot disturbances and riots. This can mainly be seen from the following new tendencies and characteristics.
   
1. Members who are secretly recruited and trained conspire over a long period of time, carry out more covert and odious actions, and cause more serious harm as they intensify their plots to carry out organized and planned disruptions and riots in prison. For example, on March 15, 2005, a certain prison uncovered a major case of conspiracy involving four ESS prisoners who had recruited a total of 34 ESS and ordinary prisoners, since June 2004, to form an “East Turkestan Islamic Party.” The group secretly plotted to make contacts inside and outside the prison and to carry out mass disturbances and riots. There are several characteristics of this case. First, the goal was absolutely clear—to establish an organization with ties inside and outside the prison, carry out a prison break, and ultimately establish an “East Turkestan Republic.” Second, after secret plotting on numerous occasions, they drew up an extremely complete plan for a prison break. Third is the well-established manner in which members of the organization communicated, divided up labor, and exerted control over one other. Fourth is the broad scope whereby targets were recruited. The large number of people involved in the case, length of time of the conspiracy, size of the organization, and thoroughness of the planning are all something rarely seen in the past decade. Were the plan to have succeeded, the consequences would be unimaginable.
2. Former “Hizb ut-Tahrir” members continue to propagate their reactionary ideas in prison and have intensified their conspiratorial activities to establish reactionary groups, recruit members, plot disturbances and prison breaks, and ultimately establish a “caliphate” government. After entering prison, former Hizb ut-Tahrir members commonly do not acknowledge guilt or accept the verdict against them. They stubbornly maintain their reactionary views and seek opportunities to provoke incidents. On May 7, 2005, Changji Prison uncovered a case of members of the reactionary group circulating written information about Hizb ut-Tahrir. They secretly recruited members in a planned, orderly, and purposeful manner in an attempt to accomplish something bigger, like a prison riot or prison break. The chief culprit, [name redacted], recruited 22 members and organized three group networks. Afterwards, eight other similar cases were uncovered in succession, fully reflecting the intensity and complexity of the battle against Hizb ut-Tahrir.
3. Former violent terrorists, with a deep resentment of our government and prison correctional officers, attempt to use violent terrorist means to kill us. They resist reform activities in increasingly arrogant and brazen means like gathering together to create disturbances and seizing opportunities to concoct incidents. On May 29, 2005, immediately after an ESS prisoner was put in solitary confinement for violating discipline in a certain prison, 27 ESS prisoners collectively went on strike and created a disturbance in the prison. They made unreasonable demands about removing that ESS prisoner from solitary confinement and changing the prisoner monitors. After a probing and detailed investigation, the prison uncovered a core of four ESS prisoners as well as 34 people who were either involved in the case or participated in activities of the “East Turkestan Islamic Liberation Organization.” In August of the same year, investigation also uncovered a case of major conspiracy led by four ESS prisoners and involving 11 criminals. On November 14, 2004, these prisoners made an oath to form a “bayat” [i.e., “oath of allegiance”] organization, secretly recruited members, and attempted to collaborate with forces outside the prison to murder police guards and collectively break out.　
   With respect to the main prisoners involved in the aforementioned cases, the Xinjiang Prison Bureau requested sentence extensions in accordance with the law in December of last year. Nonetheless there remain some prisoners who continue to have an attitude of refusing to acknowledge guilt and to display extreme resentment. Some engage in self-mutilation, slash their wrists, bite off their tongues, or try to kill themselves by smashing into walls; some threaten police guards, openly saying “if you sentence me, I won’t live”; some use the excuse of illness and make unreasonable demands in an attempt to escape legal sanctions.　
   
4. Intense infiltration of “three forces” [elements] into prisons presents new and more serious challenges to our anti-infiltration and anti-prison-break work. This mainly manifests itself in the following. Separatists outside the prison intentionally commit crimes to “break in” to the prison, gather intelligence, and recruit members. There is increased use of video cameras, cameras, and binoculars outside the prison walls by people of unclear backgrounds who photograph and view the situation inside the prison walls. There is continual intensification in the use of the mail to send money and items [into the prison], carry out reactionary propaganda infiltration on incarcerated ESS prisoners, and use secret codes in an attempt to establish contacts with those outside the prison. There are those who make secret connections inside and outside and await “rescue” by separatist groups outside the prison. On several occasions, prisons that hold ESS prisoners have discovered that ESS prisoners’ relatives have sent reactionary letters encouraging prisoners to maintain their reactionary standpoints and separatist ideas and await “rescue.”

IV. Methods for Improving Education and Reform of ESS Prisoners

In light of the new circumstances and problems surrounding the reform of ESS prisoners, Xinjiang prison work must always firmly plant the idea of “stability above all else.” We must closely ensure unwavering focus on prison security and stability by continually improving the party’s leadership over prison work and building and perfecting enduring mechanisms for prison security and stability. We must always maintain the focus of prison work on severe combat against the sabotage activity of “three forces” inside the prison and on reforming ESS prisoners. This should be emphasized as important over the long term. Special effort should be made to strengthen the management of ESS prisoners and raise the quality of reform.

1. Continue to increase intra-prison investigation, taking account of hostility and criminality.
1. Continually improve the investigation and study of prison and enemy intelligence. Dedicate intensive research to ESS prisoners’ criminal psychology, patterns of reform, and specific countermeasures. Explore and summarize past experience and methods to guide future practice, and enhance professional strengths.
2. Organize a tightly controlled, rationally arranged, and high-quality network of informants. Strictly implement a reward-and-punishment system for informants, and use formal, administrative, and material means to motivate them. In particular, establish a system to pay informants and use other practical measures to encourage them.
3. Gradually shift the focus of prison investigation work to combatting serious behaviors aimed at resisting reform. With respect to some serious reform-resistance behavior that does not constitute new criminal activity according to the current legal framework, we need to employ strategies, collect evidence, solidify evidence, and actively communicate with the relevant authorities in order to use legal methods to carry out a reasonable, effective, firm, and severe crackdown in practice.
4. Maintain good experiences and practices, such as making prevention the focus, treating small things as if they were major, and “fixing the barn door before the horse is lost.” Aim to uncover major cases during the conspiracy stage and eliminate all kinds of new criminal activity at their inception. In addition to standardizing daily work routines, we need to increase funding, improve investigative equipment and facilities within the prison, pay attention to employing modern detection technology, and improve the overall efficacy of investigation within the prison.
2. Exemplify targeted management of ESS prisoners, taking account of ESS prisoners’ characteristics.
1. Implement and refine categorized management. Use scientific methods of classifying ESS prisoners according to the different natures of their crimes and their different social backgrounds, psychological profiles, ideological bases, and behavioral displays. Remain firm in carrying out separate detention of leaders, core members, and dangerous elements.
2. In the course of daily management, uphold the “four stricts” of strict management, strict education, strict crackdown, and strict prevention. Intensify the punishment and crackdown against those who dare to reveal themselves, making them truly feel the severity of the law and the force of dictatorship. For the main suspects in a case, employ separate or isolated detention; carry out 24-hour monitoring by prisoner monitors and daily, unscheduled patrols by correctional officers from the functional office; and have on-duty correctional officers carry out daily body searches and inspections of beds and cells. For dangerous individuals connected to a case, carry out detention using restraints in accordance with the law. Implement a system of fixed positions for sleep and prevention of sitting and movement for those involved in a case. Strictly implement a specific accountability system and arrange for correctional officers with a strong sense of responsibility and professional character to take responsibility for management and education.
3. Enhance the management of ESS prisoners’ labor. Adjust the projects and times for ESS prisoners’ labor. If anything is inappropriate as labor to be carried out by ESS prisoners, it must be resolutely canceled.
3. Make further use of the ability of education and reform to address the root of the problem and increase the quality of ESS prisoners’ reform
1. Periodically hold special meetings regarding education work. Analyze and study the new circumstances and problems that arise in the course of education and reform work for ESS prisoners and enact targeted measures and methods to raise the relevance of this work.
2. Speed up the compilation and improvement of targeted teaching materials. Mainly include content on: Marxist worldview, philosophy, and values; national, ethnic, religious, historical, and cultural views; and Xinjiang’s history and development, current events, and politics.
3. In light of the realities of ESS prisoners’ mentalities, place the focus on increasing political thought education that is targeted, flexible, and varied. Avoid boring study methods like reading the newspaper or textbooks, and fully take advantage of myriad educational methods such as lectures, one-on-one education, using cases to study the law, analyzing classic cases, and speaking of the law from personal experience.
4. Further intensify one-on-one education. Under the current conditions of correctional officer scarcity, focus on one-on-one education for target prisoner groups like ESS prisoners and stubborn ESS prisoners. Actively take advantage of the function of one-on-one education to attack the mind of ESS prisoners. Establish three levels of one-on-one education [to be carried out by] prison leadership, the functional office, and unit guards as a network for guaranteeing education and reform.
5. Properly carry out assault and conversion work targeting “stubborn ESS prisoners.” Extend the experience of selected pilot efforts to the whole, putting the stress on effectiveness. Promote experiences of educating and converting ESS prisoners, and, when targeting stubborn elements, employ strategies of “strategically despise all enemies but tactically take our enemies seriously” and “gather the majority, isolate the minority, treat them differently, divide and demoralize.” Launch an education campaign to attack and convert 100 stubborn ESS prisoners. Increase the conversion rate by employing effective measures that concentrate advantages of police force and energies like concentrated classes, responsibility contracts, close supervision, and conversion deadlines. Go on the offensive to educate “stubborn ESS prisoners” on policies, laws, the general situation, and morality in order to target their reactionary thinking and ideas.
4. Wield the Might of Policy and Uphold the “Four Combines”
   While educating and reforming ESS prisoners, respect the fundamental principles of individualized education, categorization, and management and persuasion through reasoning. Properly grasp the four areas of indoctrination, guidance, penetration, and criticism and uphold the “four combines,” namely, combine strengthened indoctrination and self-education, combine ideological education and psychological treatment, combine collective attacks with individualized education, and combine the attack-and-convert strategy with consolidating results. Fully wield the power of the party’s ethnic and religious policies and national laws and strengthen the ideological education of ESS prisoners.
   
1. Proceed from a practical basis, strengthen “three courses” education, and fully promote basic education. In the content of “three courses” education, target the special criminal thinking of ESS prisoners and place emphasis on patriotism, ethnic and religious policies, and political ideological education regarding the general situation, legal system, and morality. Educate using useful passages from the Islamic Quran that can correct criminal thinking, for example content regarding doing good deeds and prohibitions on evil as well as on love, honesty, equality, and forgiveness. Focus on ESS prisoners who do not understand Chinese or are illiterate by carrying out cultural education to eradicate illiteracy and study Chinese. Encourage ESS prisoners with relatively good behavior to participate in adult university self-study examinations and strengthen technological and technical education and training, especially in practical technologies.
2. Use scientific techniques and fully make use of the functions of psychological therapy in reforming criminals, making education and reform deeper and more detailed. Utilize the scientific methods of psychological therapy, set up archives, and provide scientific bases for establishing a targeted educational program. Fully understand all aspects of ESS prisoners’ psychological profiles as they relate to social behavior, including personalities, temperament, interests, emotions, attitudes, beliefs, value systems, and interpersonal relations, and establish a psychological file for each ESS prisoner. Design questionnaires based on the content and methods of the prison’s “three courses” and its management and education needs, carry out deep investigation and screening classification of ESS prisoners, and analyze and research ESS prisoners’ mental characteristics in order to serve as a holistic basis for accurately grasping their basic situation.
3. Maintain close cooperation with all sides and open up new roads to education and reform. Establish a global view; strengthen coordinated combat operations and broaden channels by combining forces within the prison’s departments of education, prison administration, prison investigation, and production labor; and continually seek new methods, roads, and channels for education and reform, taking greater and greater steps towards a systematized, standardized, scientific, and modern system of education and reform.
5. Take Resolute Steps to Enhance the Quality of Correctional Officers
1. Strengthen education on political views and beliefs in order to enable guards of all ethnicities to come of their own accord to stand on the front lines of the battle against separatism. When it comes to questions of major principles involving national interests and the interests of individual ethnic groups, always achieve unequivocal understanding, unambiguous attitudes, and unwavering action.　
2. Strengthen education regarding the Marxist view on ethnic groups and the party’s ethnic and religious policies, deepen anti-separatist ideological education and education regarding Xinjiang history.
3. Conduct planned training on religious knowledge for correctional officers who educate and reform ESS prisoners. Hold training classes and organize patriotic religious figures to lecture guards at the prison in order to help them understand necessary religious knowledge. Require that correctional officers pay attention to accumulating basic knowledge about Islam, ethnic customs, psychology, and history in the course of their daily work, study, and lives.
4. Continue to carry out “bilingual” study activities for all correctional officers, with ethnic minorities learning Chinese and Han studying ethnic minority languages. Work hard to cultivate a corps of specialized teachers and education experts skilled at implementing ethnic and religious policies and laws, and establish a special correctional officer training corps for managing and educating ESS prisoners.
6. Further Enhance Construction of Technologies for Prison Security and Prevention
1. All high-security prisons housing ESS prisoners should install high-functioning prison security and prevention technology systems, including multimedia monitoring, intercom calling, emergency alarms, interview listening, perimeter-intrusion detection, smart grid, and access control functions.　
2. Recommend distributing a certain amount of non-ESS prisoners who nevertheless possess ethnic separatist tendencies in prisons throughout Xinjiang. To this end, all medium-security prison farms should have at least one target section that employs the best security and prevention technology according to high-security prison standards.
3. Given the special regional circumstances of Xinjiang, ordinary prisons should also install necessary monitoring systems.
4. Set up a local area computer network to cover the entire prison system, achieving remote monitoring of targeted prisons. The local monitoring control center may, as needed, carry out appropriate monitoring of targeted sections of targeted prisons and carry out remote command during emergency incidents in order to strengthen the ability to handle emergency incidents.
5. Gradually set up an electronic education system to reduce the opportunities for prisoners to use the large-scale gatherings that occur during class time to make contact with one another.
6. Set up prison administration information management systems in select prisons.

In summary, we must always clearly recognize the long-term, complex, and difficult nature of reforming ESS prisoners. While we implement each type of effective management measure, we must remain unwavering in remaining centered on the task of improving the quality of education and reform and having this central task lead our other work. Through continually strengthening education and reform measures, improving the quality of education and conversion, and truly grasping the laws of criminal reform, we are able to transform from passive defense to active attack. Only in this way can we fundamentally safeguard the security and stability of our prisons.

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References:

1. Yang Zheng, Research on Violent Terrorist Crime (Xinjiang People’s Publishing House, April 1999).
2. Wang Jiye, “Leading All Aspects of Prison Work with Socialist Legal Institutions,” China Prisons, 2006(5).
3. Xinjiang Prison Studies Association, “Notes on Reforming ESS Prisoners in the Xinjiang Prison System,” Prison Research, 2005(12).
4. Li Weiguo and Sun Xinmin, “Analysis of Current Situation and Enhancement Approach for Control of ‘ESS Prisoners’ in the New Era,” Prison Research, 2006(5).

Chinese Source（原文）: 试论新形势下危安犯的改造现状及对策 http://www.fzxj.cn/view.asp?id=12152

三、改造状况

（一）基本情况

从2000年以来危安犯在押情况来看，新疆危安犯呈逐年增长的趋势。在押危安犯捕前主要分布在南疆喀什、和田、阿克苏、伊犁四个地区。其中18-40岁年龄段的危安犯较多，这表明青壮年人始终是民族分裂份子培养和发展的重点对象。而且重刑犯越来越多，轻刑犯相对减少。由此可以看出：一方面，我们对危害国家安全犯罪分子打击力度在不断加大，与危害国家安全犯罪分子的斗争日趋激烈；另一方面，危害国家安全犯罪在不断加剧，对危安犯的改造难度也越来越大，同时教育转化危安犯的过程曲折，任务艰巨。并且，随着危安犯刑释人数的增加进一步加大了对这些人员接茬监控及帮教的难度。

（二）改造现状

当前，对危安犯的改造，总的来讲处于较平衡阶段，但由于受其思想特点、社会背景及宗教意识等因素影响，危安犯在改造中整体上呈现出两极甚至多极分化的发展态势，具体主要表现为以下五种形式。

1. 认识提高，逐步转化。此种类型危安犯约占2.39%。这部分人大多是年龄偏低，受宗教影响较轻，文化程度相对较高，犯罪中处于从犯地位。经过一定时期的教育改造，他们不仅能较快地适应改造环境，还较易于接受新知识、新观念的灌输，属于危安犯中的易改造部分。
2. 坐以观望，徘徊不前。这种状况的危安犯约占19.22%。他们大多思想不太成熟，受狭隘民族观、宗教观影响较少，缺乏意志力和判断力。他们虽然认识到坚持民族分裂的观点没有好结果，但却看不清监狱坚决打击民族分裂主义分子的形势，不能恰当把握改造时机，犹豫不决，瞻前顾后，抱着侥幸心理随大流。在教育改造中，只要对其动之以情，晓之以理，让其认识到民族分裂是没有前途的，是死路一条，也是易于转化的。
   
3. 随波逐流，人云亦云。此种危安犯约占36.43%。他们大多数思想不稳定，情绪波动较大，民族、宗教观念不正确，明辨是非能力差，文化程度低。在改造中，忽冷忽热，没有主见，改造积极性忽高忽低，易受周围危安犯及相关事态的影响。
4. 明修栈道，暗渡陈仓。这种危安犯约占30.53%。但他们所起的负作用却相当大。这种人一般是犯罪团伙中的主犯、首犯或骨干，有较系统的反动思想，较强的组织能力和影响力。他们在改造中表面上积极主动，能服从管理，能言善辩，认罪态度较好，但内心反社会思想、分裂思想极为顽固，在改造中抱着顽抗到底的态度。这些人是监管工作中需要着重进行管束和教育的对象。
5. 思想顽固，潜在危险性大。这些罪犯人数较少，约占11.52%左右。但民族分裂和极端宗教思想根深蒂固，入监后往往抱着不达目的誓不罢休的意识，导致其犯罪动机的持续和强化。他们一方面想方设法与狱外残余的民族分裂主义势力勾结；另一方面伺机在狱内进行串联，继续宣传其民族分裂主义言论思想和进行非法宗教活动，妄想时机一旦成熟，就付诸暴力、组织越狱、暴狱、劫狱，杀害民警和群众。倘若他们的图谋得逞，后果不堪设想。

（三）突出敌情

近年来，在押危安犯的抗改、破坏和预谋闹监、暴狱等又犯罪活动十分活跃，主要表现在以下新的动向和特点：

1. 密谋时间长、行动更加隐蔽、性质更加恶劣、危害更加严重的秘密发展和培养成员，妄图进行有组织、有计划的闹监、暴狱的预谋活动加剧。例2005年3月15日，某监狱破获了一起以四名危安犯为首，自2004年6月以来拉拢发展了共计34名危安犯和刑事犯成立“东突厥斯坦伊斯兰党”，密谋策划、内外勾结、集体闹监暴狱的重大预谋案件。这起案件的特点：一是目的十分明确，就是要成立组织、内外勾结实施暴狱，最终成立“东突厥斯坦伊斯兰共和国”。二是通过多次密谋，制定了十分周末的暴狱计划。三是组织成员之间的联系、分工以及控制组织成员的手段十分严密。四是发展拉拢组织成员对象范围十分广泛。 这起案件涉案人数之众、密谋时间之长、组织规模之大、预谋计划之周密、都堪称近十年来所罕见，一旦得逞，其后果不堪设想。
2. 原“伊扎布特”组织成员在狱内继续宣传反动思想，成立反动组织、发展组织成员，妄图闹监、暴监，最终成立“哈力发”国家的阴谋活动加剧。原伊扎布特反动组织成员入狱后普遍不认罪，不服判，顽固坚持反动立场，寻机挑起事端。2005年5月7日，昌吉监狱破获了一起伊扎布特反动组织成员在狱内利用书写传阅伊扎布特反动组织知识，有计划、有步骤、有目的的秘密发展组织成员，妄图做大成势，闹狱暴狱的案件。其中主犯阿某发展成员22名，并组建3个组织网络，此外还相继破获了8起相同案件。这些都充分反映出与伊扎布特组织斗争的尖锐性、复杂性。
3. 对我政府和监狱民警刻骨仇恨，企图通过暴力恐怖手段置我于死地的原暴力恐怖分子，结伙闹事，寻机制造事端的抗改活动气焰更加嚣张。2005年5月29日，某监狱一名危安犯因违纪被禁闭后，立即有27名危安犯集体罢工、闹监，并提出解除该名危安犯的禁闭、撤换监督犯等无理要求。该监通过深挖细查，破获了以4名危安犯为核心，34人涉案或参加的“东突厥斯坦伊斯兰解放组织”活动，同年8月又侦破了一起以4名危安犯为主、11名罪犯涉案，于2004年11月14日，经过宣誓成立的“百叶提”组织，秘密发展成员，妄图里应外合，杀害民警，集体冲监暴狱的重大预谋案件。
   对上述几起案件的主要涉案罪犯，新疆监狱局已分别于去年12月，依法提请加刑。但仍有部分罪犯持拒不认罪的态度，表现出强烈的抵触情绪。有的实施自残、割腕、咬舌、撞墙实施自杀；有的威胁民警，公开扬言“如果给我判刑，我就不活了”；有的以患病为借口，提出无理要求，企图逃脱法律的制裁。
4. “三股势力”向狱内进行渗透加剧，防渗透、防劫狱工作，面临新的、更严峻的考验。主要表现在：狱外分裂分子故意犯罪，“打入”监狱、收集情报、发展成员；不明身份的成员在监狱的大墙外围用摄像机、照相机、望远镜等拍摄、窥探监狱大墙内情况的活动加剧；利用写信、寄钱寄物等方式，向狱内危安犯进行反动宣传渗透，以及通过暗语企图内外勾结的活动，不断加剧；密谋进行内外勾结，期待狱外分裂组织来“解救”，关押危安犯的监狱多次查获危安犯的亲属等鼓动罪犯在狱内坚持反动立场，坚持分裂信念，等待“营救”的反动信件。

四、 加强危安犯教育改造的对策

针对改造危安犯工作中出现的新情况、新问题，新疆监狱工作要始终牢固树立“稳定压倒一切”的思想，紧紧抓住监狱安全稳定这个中心不动摇，不断加强党对监狱工作的领导，不断构建和完善监狱安全稳定长效机制，始终坚持把严厉打击狱内“三股势力”的破坏活动和改造危安犯作为监狱工作的重点，长期放在突出重要的位置，专门强化对危安犯的管理，提高改造质量。

（一）结合敌情、犯情特点，不断加大狱内侦察工作力度。

1. 不断加强狱情、敌情调查研究，深入研究危安犯的犯罪心理、改造规律和具体对策，探索、总结经验做法指导实践。加强业务方面的力量。
2. 组建起控制严密、布建合理、高质量的耳目网络。严格落实耳目使用奖惩制度，切实从形式上、行政上、物质上调动耳目的积极性，特别是设立耳目经费，采取实实在在的激励措施。
3. 逐渐将狱侦工作的中心调整到打击严重抗改行为上来。对一些在现有法律框架内未构成从新犯罪的严重抗改行为，要运用谋略，搜集证据、固定证据，积极与有关部门沟通，切实在实践中通过法律手段进行有理、有力、坚决而严厉地打击。
4. 坚持预防为主、小题大做、未亡羊、先补牢等好的经验和做法，立足把各种重特大案件破获在预谋阶段，把各种从新犯罪活动消灭在萌芽之中。规范日常工作的同时，加大经费投入，改善狱侦器材和装备，注重运用现代侦察技术，提高狱侦工作综合效能。

（二） 结合危安犯特点，突出危安犯管理的针对性。

1. 落实、细化分类管理。针对不同的犯罪性质、社会背景、心理结构、思想基础和行为表现等情况，对危安犯进行科学分类，坚决对头目、骨干、危险份子进行单独关押。
2. 日常管理中，坚持严管、严教、严打、严防的“四严”措施。对敢于露头的，加大惩罚和打击力度，使其真正感受到法律的威严和专政的力量。对主要涉案人员，采取单独关押或隔离关押，实行监督犯24小时监控、职能科室民警每天不定时巡查，值班民警每天对其搜身，清查床铺、住所；对个别具有危险性的涉案人员依法实行夹带戒具关押；实行设涉案人员睡觉、禁坐和活动位置固定制度；严格落实专人负责制度，安排责任心强、业务素质高的民警负责管理、教育。
3. 加强危安犯劳动管理。调整危安犯劳动项目和劳动时间，凡是不适合危安犯劳动的必须坚决撤掉。

（三）进一步发挥教育改造工作的治本功能，提高危安犯改造质量

1. 定期召开教育工作专题会议。分析、研究危安犯教育改造工作中出现的新情况、新问题，制订针对性措施和方法，提高教育改造工作的针对性。
2. 加紧编写和完善针对性的教材。教材内容主要包括：马克思注意世界观、人生观、价值观及国家观、民族观、宗教观、历史观、文化观和新疆历史与发展、时事政治等。
3. 结合危安犯思想实际，重点加强针对性强、灵活多样的政治思想教育，避免读报纸、读教育课本等枯燥的学习方式，充分发挥上大课教育、个别教育及以案说法、典型分析、现身说法等各类教育方式的作用。
4. 进一步加强个别教育工作力度，在目前警力不足的情况下，将个别教育的重点放在危安犯、顽危犯等重点罪犯上，积极发挥个别教育在改造危安犯中的攻心作用，建立监狱领导、职能科室、中队干警、三级个别教育、包教包转化网络。
5. 做好“顽危犯”的攻坚转化工作，以点带面，突出效果。推广教育转化危安犯工作经验，对危安犯中的顽危份子，运用“战略上藐视敌人，战术上重视敌人”、“增取多数，孤立少数，区别对待，分化瓦解”的策略，开展百名顽危犯攻坚转化教育活动。采取集中优势警力和精力实行集中办班、责任承包、挂牌攻坚、限期转化等有效方法，提高转化率，。针对“顽危犯”的反动思想、观点的要害，进行政策、法律、形势、道德等内容的攻势教育。

（四）发挥政策威力，坚持“四个结合”

在对危安犯的教育改造中，我们遵循因人施教、分类，管理、以理服人的基本原则，抓好灌输、引导、渗透、批判四个环节，坚持“四个结合”，即强化灌输与自我教育相结合，思想意识教育与罪犯心理矫治相结合、集中攻坚与个别教育相结合、攻坚转化与巩固成果相结合，充分发挥党的民族宗教政策和国家法律的威力，强化对危安犯的思想教育。

1. 从实际出发，强化“三课”教育，全面推进基础教育工作。在“三课”教育的内容上，针对危安犯的犯罪思想特征，着重进行爱国主义、民族宗教政策及形势、法制、道德等思想政治教育，其中还运用伊斯兰教《古兰经》中有益的内容，如善行、戒恶、慈爱、诚信、平等、宽恕等有利于矫正罪犯思想的内容，对其进行教育；针对危安犯不懂汉语、文盲多的特点，开展以扫盲、学汉语为主的文化教育，并鼓励表现较好的危安犯参加成人高等教育自学考试，加大以实用技术为主的技术、技能教育培养。
2. 运用科学手段，充分发挥心理矫治在改造罪犯中的作用，深化细化教育改造工作。运用心理矫治的科学方法，建立资料库，为制定有针对性的教育方案提供科学依据。从心理学角度全面了解危安犯的性格、气质、兴趣、情感、态度、信念、价值观、人际关系等与社会行为有关的各种心理特点，对每个危安犯都建立心理档案。根据监狱开展“三课”教育的内容、方式以及管理、教育工作需要自行编制调查问卷，对危安犯进行深度调查和甄别分类，分析、研究危安犯的思想特征，为准确掌握其基本情况提供充分的依据。
3. 各方密切配合，开拓教育改造新路。树立全局观念，强化教育、狱政、狱侦、生产劳动等各部门的协同作战，整合力量，拓宽途径，不断探求教育改造工作的新方法、新路子、新途径，使教育改造工作逐步向系统化、规范化、科学化和现代化的更高层次迈进。

（五）狠抓民警队伍综合素质建设

1. 加强政治立场、政治信念的教育使各族民警自觉站到反分裂斗争前线，在事关国家利益和个民族根本利益的大事大非问题中，始终做到认识不含糊，态度不暧昧，行动不动摇。
2. 加强马克思注意民族观和党的民族宗教政策教育，深化意识形态领域的反分裂斗争教育和新疆历史的教育。
3. 有计划的对从事危安犯教育改造的民警进行宗教知识培训，举办培训班，组织爱国宗教人士到监狱对民警进行宗教知识专题讲座，使民警能够掌握必要的宗教知识，要求民警在日常的工作、学习、生活中注意积累伊斯兰教常识、少数民族民俗、心理学常识、历史学常识等。
4. 继续在全体民警中开展少数民族民警学习汉语，汉族民警学习少数民族语言的“双语”学习活动，努力培养一批执行民族宗教政策法律水平高的专职师职队伍和教育能手，组建一支专门监管、教育危安犯的民警教师队伍。

（六）进一步加强监狱安全技术防范技术建设

1. 所有关押危安犯的高度戒备监狱，应该装备包括多媒体监控、对讲机呼叫、紧急报警、接见监听、周界防入侵探测、智能电网、门禁等内容的，功能完善的监狱安全技术防范系统。
2. 建议将相当一部分不是危安犯但具有民族分裂主义倾向的分布在全疆各监狱之中。为此，所有中度戒备的农业监狱至少要有一个重点监区，按高度戒备的标准，配备完善的安全技术防范系统。
3. 由于新疆地区特殊情况，一般监狱也要装备必要的监控系统。
4. 建立覆盖全监狱系统的监狱计算机区域网，实现对重点监狱的远程监控指挥，局监控指挥中心可根据需要对重点监狱的重点部位进行适时监控，并对突发事件实施远程指挥，提高处置突发事件的能力。
5. 逐步建立电化教学系统，减少罪犯通过大范围集中上课进行串联的机会。
6. 在重点监狱建立狱政管理信息系统。

综上所述，我们要始终清醒地认识到改造危安犯工作的长期性、复杂性、艰巨性，在落实各项行之有效的管理措施的同时，坚定不移地围绕以提高教育改造质量为中心这个根本任务，以中心工作带动其他工作。通过不断地强化教育改造措施、提高教育转化质量，切实把握罪犯改造规律，使我们从被动防御转变为主动进攻，也只有这样才能从根本上保障监狱的安全稳定。

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参考文献：

1. 扬征，《暴力恐怖犯罪研究》。新疆人民出版社，1999年4月。
2. 王吉业，《以社会主义法制理念统领监狱各项工作》载《中国监狱》。2006年第5期
3. 新疆监狱学会，《新疆监狱系统改造危安犯交流》专辑载《监狱研究》。2005年第12期。
4. 李卫国、孙新民《新时期“危安犯”监管工作现状及深化途径探析》载《监狱研究》。2006年第5期。

China Adds Life Without Parole to Anti-Corruption Arsenal

The National People's Congress passes the ninth amendment to the Criminal Law in August. Credit: Chinanews.com

Just before passing the ninth amendment to the Criminal Law late last month, the Standing Committee of China’s National People’s Congress inserted a new provision. Unlike many other new provisions, including those regarding defense lawyers and capital punishment, “cults,” and protestors, this provision was not subject to public consultation. In China’s non-democratic political system, public consultation is one of the few chances for citizens to provide input into the legislative and policymaking processes. It is intended, at least in part, to reinforce popular support for the outcome.

This last-minute provision altered Article 383, which covers the offenses of corruption and taking bribes. Effective November 1, the provision authorizes courts, in certain cases, to add a condition at the time of sentencing to require an individual to spend life in prison without possibility of sentence reduction or parole. The condition may only be applied in corruption cases where the defendant received a suspended death sentence and had that sentence commuted to life imprisonment after the two-year period of reprieve. If such a condition is imposed, the convicted individual will not be eligible for clemency that is ordinarily available under law—meaning that he or she will truly be required to spend the rest of his or her life in prison.

Paving the Way to Abolition

Chinese media has emphasized the significance of this provision as part of the sweeping anti-corruption campaign that has become a signature policy of Xi Jinping. Legal experts and commentators have widely praised the move for sending a strong signal that corruption will continue to be punished severely.

Others have noted that the introduction of life without possibility of release may have wider implications for abolishing the death penalty in China. Public attitudes toward the death penalty are complex and context-dependent, but continued popular support for capital punishment is one factor underlying the cautious and gradual approach that China’s leaders have adopted in reducing its use. Longstanding anger over rampant corruption has helped fuel public support and contributed to anxiety over efforts to strip the death penalty from many economic and non-violent offenses.

Part of this anxiety is rooted in the belief that the death penalty is the only punishment severe enough to deter the most serious crimes. However, in recent years, policies aimed at gradual abolition have led to fewer and fewer death sentences in corruption cases, making suspended death sentences the de facto maximum penalty. Through commutation and sentence reduction, individuals given suspended death sentences can potentially leave prison after serving terms not much longer than the maximum sentence of fixed-term imprisonment, or about 18 years. Some members of the public also worry that corrupt officials might be able to use connections or bribes to buy prison stays that are even shorter.

Given these factors, the introduction of life without parole in serious corruption cases has the potential to mitigate some of the public doubts about lenient punishment for corrupt officials. In so doing, it could also clear the way for China to eventually eliminate the death penalty for corruption. Advocates of death penalty reform anticipate that imprisoning corrupt officials for the rest of their lives would satisfy the public’s expectation of severe punishment. They also believe that in the future life without parole could be extended to other types of crime—including violent offenses.

Following a reform model often seen in China, legal reformers thus appear to have taken advantage of the current anti-corruption environment to experiment with a new kind of punishment and assess the prospects for further refinement and expansion based on practical experience.

A number of issues remain to be addressed. Zhuang Deshui, an anti-corruption expert at Peking University, points out that in order for the new measure to have its desired deterrent effect, courts must “dare” to use it. To this end, Professor Zhao Bingzhi of Beijing Normal University Law School notes that it is necessary for the Supreme People’s Court to issue a judicial interpretation setting clear guidelines for when to apply the new condition. How fairly the condition is applied will play an important role in whether the public can accept life without parole as a substitute for the death penalty.

Choosing Retribution over Rehabilitation

By choosing to deprive certain prisoners of any possibility for early release, China is giving more weight to the retributive and deterrent functions of criminal punishment than to its longstanding emphasis on rehabilitation and reform. If things continue to develop in this direction, what impact might this have on China’s criminal justice system?

Other than the United States, where in the 1980s an abrupt departure from reformative justice helped make life without possibility of commutation or parole a common sentence, very few other jurisdictions impose such categorical penalties. Elsewhere, in fact, it is more common to make possible some form of conditional release after ensuring that an individual has been imprisoned long enough to reflect the seriousness of his or her offense. This is in keeping with the United Nations Standard Minimum Rules for the Treatment of Prisoners. The rules state that the protection of society through imprisonment, and other deprivations of liberty, “can be achieved only if the period of imprisonment is used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life.”

In an article published just last year, Professor Zhao Bingzhi criticized life imprisonment without the possibility of sentence reduction or parole as inhumane and a violation of human dignity comparable to the death penalty itself. In a forum on death penalty reform in 2008, Zhao and other Chinese legal experts presented arguments on why life without parole was unreasonable and ill suited to China’s justice system. Now, however, these same experts appear to be embracing more stringent penalties in the interest of making it possible to do more to reduce the death penalty. Life without the possibility of release for corrupt officials may be popular with the public, but the American experience ought to serve as a warning to China that failure to strike the right balance between punishment and reform can lead to many new and serious challenges to human rights.

Xinjiang’s State Security Prisoners: Failing to Reform (Part 1 of 2)

Twelve men accused of ESS are publicly sentenced in Yili (Ili) Kazakh Autonomous Prefecture, Xinjiang, September 18, 2008. Photo credit: iyaxin.com

In 2008 the Xinjiang Rule of Law Leading Small Group published a policy document examining a number of challenges faced by prison authorities in managing the region’s prisoners serving sentences for endangering state security (ESS). The first two sections of the document are translated below. They discuss the climate surrounding Xinjiang prison work and the psychological profiles of ESS prisoners. The last two sections of the document, focusing on how to better reform ESS prisoners, will be translated in an upcoming post.

The document focuses on external factors, like increasing US attention to the “Xinjiang question” and the “three forces” of ethnic separatism, Islamic extremism, and terrorism. Also mentioned are internal factors, such as an insufficient number of prison police, a shortage of funds, and outdated facilities.

Over the years, Dui Hua has drawn on evidence from a variety of open-source documents to conclude that Xinjiang accounts for a considerable proportion of the nation’s ESS arrests, indictments, and trials. In 2008, Xinjiang accounted for more than 75 percent of ESS arrests and 82 percent of ESS indictments nationwide. In the first 11 months of that year, Xinjiang’s procuratorate reported that 1,295 individuals were arrested and 1,154 were indicted for ESS crimes in the region. Between 2008 and 2010, Xinjiang, which accounts for less than two percent of China’s population, accounted for 50 percent of the nation’s first-instance ESS trials. In 2013 and 2014, Xinjiang conducted about 300 ESS trials of first instance each year.

The large number of ESS cases in Xinjiang is connected to the region’s complex history; diverse population; and geo-strategic importance, bordering Russia and Central Asia on China’s northwest. The emergence of independent Central Asian states after the collapse of the Soviet Union and the spread of Islamic ideologies have heightened Chinese authorities’ concerns about stability in the region. Authorities in Xinjiang see themselves as engaging in an ongoing battle against the “three forces.” In their view, what hangs in the balance is the stability of Xinjiang and the allegiance of the region’s 10 million Uyghurs—an ethnically Turkic, culturally distinct, and predominantly Muslim people who have been the main inhabitants of the region for more than 1,000 years.

The document describes the “American Factor” as a “constant threat” to Xinjiang’s social and political stability. It mentions US support for nonviolent resistance movements, or color revolutions, in Central Asia and notes that religious extremism has flourished in countries where color revolutions occurred. US interest in human rights in Xinjiang, particularly its criticism of controversial ESS cases like that of Ilham Tohti, remains a point of contention in US-China relations. China continues to see such attention as interference in its domestic affairs, and accuses the United States of a “double standard” in combatting terrorism for its penchant to draw attention to Chinese policies that marginalize and criminalize Uyghur culture in its response to ethnic clashes in Xinjiang.

Tensions between Han Chinese and Uyghurs flare up periodically as protest. Some of the protests turn violent, as in the deadly riots that erupted in Ürümqi in July 2009. In recent years official media have reported an increasing number of violent incidents in the region. Xinjiang police counted over 190 “terrorist” attacks in 2012. Authorities have also implicated Uyghurs in incidents outside the remote western region, including Beijing’s Tiananmen car crash in October 2013 and knife attacks at Kunming and Guangzhou train stations in 2014 and 2015, respectively. Law enforcement has responded by tightening controls on religious and cultural activities and cracking down on “infiltration” by trans-national radical groups.

One of the radical groups named in the paper is Hizb ut-Tahrir, or Party of Liberation. Many countries have banned the group. Chinese government records show that a substantial proportion of ESS cases are attributed to Hizb ut-Tahrir. For example, in 2010, police in Kashgar identified 522 people for their involvement with Hizb ut-Tahrir, compared with just 47 people involved with the East Turkestan Islamic Party. That said, independent media reports documenting Hizb ut-Tahrir activity in Xinjiang are scarce.

Moving to psychological profiles, the document distinguishes different segments of Xinjiang’s ESS prisoner population by factors such as age, level of education, and exposure to religious ideas. The profiles suggest the need for differentiated strategies of “education and reform.” Prison authorities put considerable emphasis on the need to “convert” ESS offenders and replace their “bigoted” and “reactionary” ideas about ethnicity, religion, and history with proper Marxist understandings that reduce antagonism towards the party-state.

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On the Current Situation and Countermeasures for Reform of
ESS Prisoners under the New Circumstances [Excerpt]
August 4, 2008

[The second two sections of this document are translated here.]

Summary: At present, reforming endangering state security (ESS) prisoners is an arduous and extremely difficult task. ESS prisoners in Xinjiang prisons display new characteristics in their opposition to reform. Their tactics have shifted from open opposition to a pretense of active obedience to management. [This makes] their actions more hidden, their nature more evil, and their threat more serious. For these reasons, we absolutely must not let down our guard and need to draw up a series of targeted, effective strategies and measures that will enable our work to be transformed from passive to active thereby fundamentally safeguarding the safety and stability of our prisons.　　

Keywords: ESS prisoners, individualized education, “four prevents,” improvement, stability

For many years, the work by Xinjiang prisons to reform ESS prisoners has been carried out according to the instructions and requirements of the central and regional [governments], closely adhering to the aims of prison work, putting the focus on raising the quality of prisoners’ education and reform, maintaining an emphasis on ensuring prison security and stability, and continually studying the education and reform methods and measures for ESS prisoners under the new circumstances. [In this way,] we have successfully converted a large number of ESS prisoner leaders and core members, protected the ordinary reform order inside the prisons, ensured the security and stability of the prisons, and achieved the targets of “admission” and “management.” But the current environment means that the situation facing Xinjiang prison work remains extremely serious and gives no cause for optimism. In particular, the task of reforming ESS prisoners is extremely difficult and reveals a number of new circumstances that must be given full attention and new problems that must urgently be resolved.

I. The Situation Facing Xinjiang Prison Work

For many years, Xinjiang prison correctional officers have undergone continuous study and training, and there has been a clear improvement in law-enforcement capabilities and standards among correctional officers of all ethnicities. With respect to prison management and [prisoner] reform, they have employed strong measures and methods, repeatedly uncovered many cases involving plans by ESS and [ordinary] criminal prisoners to attempt escape, violence, or prison break. [Prisoner] reform order is good inside the prisons. However, there remain elements that affect the security and stability of Xinjiang prisons, and mutually intertwined, complex, and variable characteristics have appeared, bringing great pressure and challenges to efforts to maintain prison stability.

1. Complex and changing international environment, rising terrorist threat, and new expressions of hegemonism and power politics. “American Factor” is a constant threat to Xinjiang’s social and political stability.
   
   In recent years, the United States has paid increasingly direct and increasingly specific attention to the so-called “Xinjiang Question.” [The issue has been raised] at higher and higher levels, the scope has been increasingly broad, and knowledge has continuously increased, with the main focus involving Xinjiang’s human rights, ethnic, and religious problems. [The United States] is scheming to integrate ethnic separatist forces, increase the intensity of infiltration and sabotage in Xinjiang, and quicken the pace of “internationalizing the Xinjiang Question.” It is attempting to carry out a “peril from the east.”[1] Since 2005, the nations bordering Xinjiang have experienced a series of “color revolutions” carried out with planning and support from the United States. In these countries, social control has become weaker, religious extremist ideology has prevailed, and violent terrorist activity has been rampant, making the situation more and more complex in the area surrounding Xinjiang.
   
2. “Three forces” remain fully active inside and outside China
   
   At present, the activities of the “three forces” [i.e., ethnic separatism, religious extremism, and terrorism] inside and outside China are most evident in three areas: first, further acceleration of the pace of uniting together, nationalizing, and politicizing; second, active plots of violent terrorist sabotage activity; and third, intensified incitement of public opinion and ideological infiltration. Each provides evidence that the “three forces” inside and outside China are currently plotting more sinister criminal activities and are capable of carrying out violent terrorist acts at any time, with prisons serving as one of their main targets of attack and sabotage.


3. Renewed Activity of “Hizb ut-Tahrir”
   
   “Hizb ut-Tahrir” [Party of Liberation] is a transnational extremist political organization pursuing Islamic fundamentalism. While our government has struck back at its organized infiltration efforts numerous times, [Hizb ut-Tahrir] has been unwilling to accept defeat and has unceasingly engaged in sabotage activities in Xinjiang. Compared to the past, its organization has undergone a number of major changes, with increasingly apparent [efforts at] “localization,” “party building,” and “violence.”



4. Serious lack of correctional officers, serious imbalance of officer-prisoner ratio
   
   The seriously insufficient [number] of correctional officers has already become a major factor influencing the security and stability of prisons and hindering the improved quality of prisoner reform. The contradiction of an insufficient officer force is particularly evident considering the unique nature of reforming ESS prisoners. We are a long way from meeting the Ministry of Justice requirement that “the ranks of prison correctional officers shall not fall below 18 percent of the prisoner population.” In our region, the ratio of assigned correctional officers to the prisoner population is only 15.1 percent.


5. Shortage of funds and outdated facilities
   
   In recent years, with the hearty support of superior departments, the work of outfitting and making adjustments at Xinjiang prisons has proceeded smoothly, bringing some improvement to the outdated nature of basic prison facilities. But with pressure on prison management and reform work continually on the rise, the problems created by insufficient prison technological equipment and outdated techniques are increasingly obvious. We can wait no longer to establish a relatively complete technological prevention system for prison security.

II. Psychological Profile of ESS Prisoners

1. General Profile
   
   1. Reactionary Political Thinking
   1. After entering prison, some ESS prisoners do not recognize their own crimes and stubbornly maintain their reactionary stances, refusing to acknowledge guilt or accept the verdict. They maintain that they “obey the commands of Allah and have broken no laws”; that “the laws of the Communist Party do not apply to them”; or that their “crimes were not committed for themselves but on behalf of the independence and liberation of their ethnic group.” They even believe things such as that their actions were “[acts of] resistance under pressure.”
   2. They pretend to have been tricked and resist thought reform. In order to avoid criminal responsibility, some ESS prisoners mistakenly believe that their crimes were instigated by others and that their ignorance led them to be tricked. They thus adopt a passive attitude toward political thought education during the reform process.
   2. Stubborn Resistance to Reform
      
      1. Most ESS prisoners harbor great feelings of resentment; avoid, and even treat as enemies, people of other ethnicities; and curse Uyghur police as the “scum of the ethnic group” and “running dogs of the Communist Party.” They willfully distort Xinjiang’s history, spread rumors, and incite ethnic hatred. They use acts like hunger strikes, suicide, “namaz” [the Turkish word for prayer], and feigned illness to disobey management and refuse reform.
      2. They create serious disturbances and oppose management by correctional officers. Some ESS prisoners, once their fantasies of being “rescued” by people outside the prison are dashed, become desperate and openly defiant towards correctional officers. They refuse to obey orders and beat other prisoners. Some spread comments about refusing to reform and incite other prisoners to cause disturbances. Some directly take aim at correctional officers. Some ESS prisoners, in response to guards’ efforts to educate them, frequently shout things like: “I only act in accordance with the Quran. I will always follow Allah and never follow the Communist Party. I only obey Islamic law. If you become a Muslim, I will obey you.” Or they shout: “According to Chinese law I am guilty, but according to Islamic law I am innocent. I believe I have a duty to spread the tenets of Islam broadly. All that I have done is correct, and I shall never repent.”
   3. Bigoted Ethnic Mentality, Inciting Religious Fervor, and Ethnic Opposition
      
      1. The majority of ESS prisoners have a rather strong, bigoted ethnic mentality and see themselves as an “elite ethnicity” and “superior race” [2]. At the same time, they are unable to have a correct understanding of objective realities of other ethnic groups’ populations or levels of economic or cultural development, which leads them to develop psychological imbalances and spiritual distortions.
      2. They incite religious fervor and engage in illegal religious activities. Investigation has found that the great majority of ESS prisoners have been deeply influenced by religion and that nearly 30 percent of them have even been educated in religious schools. They often use their common ethnicity and common religion to incite religious fervor among prisoners and try to use illegal religious methods to continue carrying out their separatist activities.
      3. They stir up trouble and incite ethnic antagonism. They instigate and encourage prisoners newly admitted to prison to oppose management by correctional officers and deliberately manufacture trouble. They incite ethnic antagonism and manufacture ethnic contradictions in order to sabotage the ordinary reform order within the prison. Some brazenly announce: “Out with the Han!” or “Destroy the infidels!”
   4. Weak Legal Knowledge and Resistance to New Things
      
      The majority of ESS prisoners have a low level of education and suffer from “small peasant mentality” and narrow thinking. They neither study nor understand the law and are unwilling to accept the restraint of national law. They judge true and false and right and wrong only on the basis of the Quran, the “Hadith,” and the “commandments.” They know extremely little about the historical development of Xinjiang and do not understand the relationships between the nation, ethnic groups, and religion. Many of them believe that “nations should be integral units formed by a single ethnic group.”[3] For these reasons, they do not care about new things and even resist them. They have no interest in the “three courses” [i.e., ideology, civilization, and technology] and lack a consciousness to reform.
      
2. Categorical Profiles
   
   1. The great majority of newly admitted ESS prisoners do not acknowledge guilt or accept the verdict and stubbornly maintain their reactionary positions. They believe that all they have done is in obedience to Allah’s decrees. Under the strict controls of prison, they continue to openly write reactionary journals, reactionary poetry, or publicly express reactionary comments, searching for opportunities to incite and recruit other prisoners.
   2. The great majority of those serving short-term sentences pass the time by going through the motions and refusing to accept thought reform. A few ESS prisoners serving short terms will frequently observe the area surrounding the prison or the correctional officer deployment situation. There are some who intentionally commit crimes so that they may scout out the situation in the prison and make reports to ethnic separatist forces after leaving prison.
   3. Some ESS prisoners serving long sentences believe that they have no hope of sentence reductions and lose faith in reform. A few even attack correctional officers or rush for the prison gates, taking these desperate measures without any concern for the consequences.
   4. A few ESS prisoners who are about to be released seek out opportunities to make contact with other ESS prisoners, asking them about their “friends and relatives” outside of prison or giving other prisoners their contact details so that they might make contact after they leave prison and continue pursuing their so-called “endeavors.”
   5. A few ESS prisoners who were leaders or core members possess extremely strong powers to draw people to them and incite them, making these prisoners ongoing risks. Periodically, former Hizb ut-Tahrir members will engage in separatist and sabotage activities in prison, such as making contact with each other, gathering together, recruiting [new members], and engaging in incitement.

[The final sections of this document will be translated in a subsequent post.]

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Notes:

1. See Zhang Huazhong, “Characteristics, Trends, and Policies for Current Violent Terrorist Criminals,” in Research on Violent Terrorist Crime (Xinjiang People’s Publishing House, April 1999).
2. See Qian Shiwu and Sun Xinmin, “Characteristics of Violent Terrorist Criminals Held in Xinjiang and Measures for Their Control and Reform,” in Research on Violent Terrorist Crime.
3. See Yi Zheng, “Political Orientation of Xinjiang Violent Terrorist Activity,” in Research on Violent Terrorist Crime.

References:

1. Yang Zheng, Research on Violent Terrorist Crime (Xinjiang People’s Publishing House, April 1999).
2. Wang Jiye, “Leading All Aspects of Prison Work with Socialist Legal Institutions,” China Prisons, 2006(5).
3. Xinjiang Prison Studies Association, “Notes on Reforming ESS Prisoners in the Xinjiang Prison System,” Prison Research, 2005(12).
4. Li Weiguo and Sun Xinmin, “Analysis of Current Situation and Enhancement Approach for Control of ‘ESS Prisoners’ in the New Era,” Prison Research, 2006(5).

Chinese Source（原文）: 试论新形势下危安犯的改造现状及对策 http://www.fzxj.cn/view.asp?id=12152

内容提要：目前，改造危安犯任务繁重艰巨，新疆监狱危安犯表现出新的反改造特点，他们转变策略，从公开抗改，转变为伪装积极，服从管理，行动更加隐蔽，性质更加恶劣，危害更加严重。因此，我们决不能掉以轻心，要有针对性地制定一系列行之有效的对策和措施，使我们的工作从被动转变为主动，从根本上保障监狱的安全稳定。

关键词：危安犯、个别教育、“四防”、完善、稳定

多年来，新疆监狱在对危安犯的改造工作中，按照中央和自治区的指示和要求，紧紧围绕监狱工作宗旨，以提高罪犯教育改造质量为中心，以确保监狱安全稳定为重点，不断研究新形势下对危安犯教育改造的方法、手段，成功地转化了一大批危安犯头目和骨干分子，维护了狱内正常的改造秩序，保证了监狱的安全稳定，实现了“收得下”、“管的住”的目标。但就目前的现状而言，新疆监狱工作面临的形势仍然十分严峻，不容乐观。特别是改造危安犯的任务，非常艰巨，出现了许多必须予以充分重视，急待解决的新情况、新问题。

一、新疆监狱工作面临的形势

多年来新疆监狱民警通过不断学习培训，各族民警的执法能力和水平有了明显的提高。在监管改造方面采取强有力措施和手段，相继破获了多起狱内危安犯、刑事犯以及企图脱逃、暴狱、越狱案件，狱内改造秩序良好。但是，影响新疆监狱安全稳定的因素仍然存在，且呈现相互交织、复杂多变的特点，给维护监狱稳定工作带来了巨大的压力和挑战。

（一）国际环境复杂多变，恐怖主义危害上升，霸权主义和强权政治有新的表现。“美国因素”始终是威胁新疆社会政治稳定的总根源。

近年来，美国对所谓“新疆问题”的关注越来越直接、越来越具体，层面越来越高，范围越来越广，知识力度不断加大，重点关注涉及新疆的人权、民族、宗教等问题。图谋通过整合民族分裂势力，加大对新疆的渗透和破坏力度，加快“新疆问题国际化”的步伐。企图实现“祸水东引”的阴谋[1]。在美国的策划和支持下，2005年以来，新疆周边的国家，先后发生了“颜色革命”。这些国家的社会控制能力愈加消弱，宗教极端思想盛行，暴力恐怖活动猖獗，新疆周边形势变的越来越复杂。

（二）境内外“三股势力”仍十分活跃

当前，境内外“三股势力”的活动突出表现在三个方面：一是进一步加速谋求联合化、国家化、政治化；二是积极谋划暴力恐怖破坏活动；三是加大舆论煽动力度，进行思想渗透。各种迹象表明，境内外“三股势力”正在预谋更加险恶的犯罪活动，随时都有实施暴力恐怖活动的可能，其中监狱被他们列为袭击破坏的重点。

（三）“伊扎布特”组织的活动再次活跃

“伊扎布特”组织是一个跨国的奉行伊斯兰原教旨主义的极端政治组织。在多次被我政府打掉其有组织的渗透活动中，不甘心失败，一直没有停止对我区的破坏活动。其组织也与以往发生很大变化，“本土化”、“政党化”、“暴力化”更加明显。

（四）在职民警严重缺编，警犯比例严重失调

警力的严重不足已成为影响监狱安全稳定、制约改造质量提高的主要因素。尤其是改造危安犯工作的特殊性与警力不足的矛盾十分突出，与司法部提出的“监狱人民警察编制应不低于押犯数的18%”的要求相差很远，我区民警编制数占押犯比例仅为15.1%。

（五）经费不足，装备落后

近年来，在上级部门的大力支持下，新疆监狱布局调整工作进展顺利，监狱基本建设落后的局面有所改善。但随着监管改造工作压力的不断增大，监狱技术装备不配套、技术手段落后的矛盾越来越突出，建设一个相对完善的监狱安全技术防范系统的任务刻不容缓。

二、危安犯的心理特点

（一）总体特点

1. 政治思想意识的反动性。
   
   1. 一部分危安犯入狱后并不认识自己的罪行，顽固坚持反动立场，拒不认罪服判。认为自己是“遵循真主的旨意，没有干违法的事”；“共产党的法律不适用自己”；“我犯罪不是为了自己，是为了民族独立、解放”。甚至认为自己的行为是“压迫下的反抗”等。
   2. 伪装受骗，回避思想转变。一部分危安犯为了逃避罪责，错误认为自己的犯罪，是受他人挑拨，是因为无知导致上当受骗，在改造过程中消极对待政治思想教育。
2. 抗拒改造的顽固性。
   
   1. 危安犯多数抵触情绪大，排斥甚至敌视其他民族，辱骂维吾尔族民警是“民族的败类”，“是共产党的走狗”。他们肆意歪曲新疆的历史，散布谣言，煽动民族仇视。他们以绝食、自杀，做“乃玛孜”、装病等行为，不服管理，抗拒改造。
   2. 寻衅滋事，对抗民警管理。一部分危安犯期待狱外“营救”的幻想破灭后，变的急不可耐，公开顶撞民警，不服管理，殴打他犯；有的散布抗改言论，煽动他犯闹事；有的直接将矛头指向民警。一些危安犯在对待民警教育时，往往叫嚣；“我只按《古兰经》上所说的去做，永远跟着安拉，不跟共产党，我只服从伊斯兰教的法律，如果你们入教，我就服从你们的管理”；“按照中国的法律我有罪，但按伊斯兰教义我没有罪，我认为我有义务将伊斯兰教的教义发扬光大，我所做的一切都是正确的，我永不后悔”。
3. 偏执的民族意识，煽动宗教狂热和民族对立。
   
   1. 大多数危安犯有着较强、偏执的民族意识，以“高贵民族”、“优秀人种”自居[2]；同时，他们对各民族人口数量、经济和文化发展水平等客观实际又不能正确认识，导致其心理上的不平衡和精神上的扭曲。
   2. 煽动宗教狂热，从事非法宗教活动。根据调查，危安犯中受宗教影响深的占大多数，其中有近30%的还接受过宗教学校的教育。他们往往以同族同教为由，在犯群中煽动宗教狂热，企图以非法宗教的手段达到继续进行分裂活动的目的。
   3. 挑起事端，煽动民族对立。挑唆、鼓动新入监的罪犯对抗民警管理，蓄意制造事端；煽动民族对立，制造民族矛盾破坏正常的狱内改造秩序。有的公然宣称：“赶走汉族人”、“消灭异教徒”。
4. 法制观念淡薄，排斥新事物。
   
   
   多数危安犯文化低，小农意识严重，思想狭隘，不学法、不懂法，也不愿接受国家法律的约束，仅以《古兰经》、“圣训”、“戒约”作为判断是非，衡量正误的标准。他们对新疆的历史发展状况知之甚少。不了解国家、民族、宗教三者之间的关系。他们中不少人认为“国家应该是由一个民族构成的整体”[3]。因此，他们对新事物不关心，乃至排斥，对“三课”教育不感兴趣，缺乏改造的自觉性。

（二）分类特点

1. 大多数新入监的危安犯不认罪、不服判，顽固坚持反动立场。他们认为自己所做的一切都是为了遵循真主的旨意，在狱内严格的管束下，他们仍公然书写反动日记、反动诗词、或公开散布反动言论，寻机煽动拉拢他犯。
2. 大多数短行期混刑度日，拒不接受思想改造。个别刑期短的危安犯经常观察监狱周边环境及警力配备情况，也有故意犯罪，在狱后为社会上民族分裂势力打探监狱的情况。
3. 一些刑期长的危安犯认为“减刑无望，对改造失去信心，个别的甚至袭击民警、冲击监狱大门，铤而走险，不记后果。
4. 个别即将刑满释放的危安犯寻机接触其他危安犯，询问他犯在狱外的“亲朋好友”情况，或向他犯告知自己的联系方式，以便出监后相互联系，继续他们所谓的“事业”。
5. 个别危安犯头目骨干有着极强的纠合力和煽动力，极具现实危险性。原伊扎布特反动组织成员在狱内串联、纠合、拉拢、煽动等分裂破坏活动时有发生。

【第二部分将在稍后刊登。】

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注释：

1. 参见张华中《当前暴力恐怖犯罪的特点、趋势与决策》载《暴力恐怖犯罪研究》。新疆人民出版社，1999年4月。
2. 参见钱诗武、孙新民《浅议新疆在押暴力恐怖罪犯的特点和监管改造对策》载《暴力恐怖犯罪研究》。新疆人民出版社，1999年4月。
3. 参见易正《新疆暴力恐怖活动的政治取向》载《暴力恐怖犯罪研究》。新疆人民出版社，1999年4月。

参考文献：

1. 扬征，《暴力恐怖犯罪研究》。新疆人民出版社，1999年4月。
2. 王吉业，《以社会主义法制理念统领监狱各项工作》载《中国监狱》。2006年第5期
3. 新疆监狱学会，《新疆监狱系统改造危安犯交流》专辑载《监狱研究》。2005年第12期。
4. 李卫国、孙新民《新时期“危安犯”监管工作现状及深化途径探析》载《监狱研究》。2006年第5期。

Draft Criminal Law Amendment Takes Aim at Defense Lawyers in China

China's National People's Congress in session in Beijing. Credit: Xinhua

One of the more controversial parts of the current proposal to amend China’s Criminal Law concerns the possible expansion of Article 309, covering the offense of “disrupting courtroom order.” Lawmakers have argued that new measures are necessary to “ensure the ability of the people’s courts to implement their adjudicatory powers in an independent and impartial manner” by punishing those who might try to use courtroom disruptions to influence judicial decision-making. They are responding to worries about a worsening atmosphere inside China’s courtrooms—particularly the sense that growing antagonism between judges and defense lawyers is helping to undermine the dignity and credibility of the courts in the public eye. Critics, on the other hand, argue that the proposal unfairly targets lawyers and will have a chilling effect on their ability to pursue vigorous defense on behalf of clients.

Few would challenge the value to society of preserving a substantial degree of courtroom order. A courtroom should be a forum in which opposing sides of a contentious issue may argue in a reasonable, if sometimes heated, manner over important matters of truth and justice. It is thus reasonable to demand that all sides adhere to a set of fair and impartial rules and standards of decorum because respect for the outcome of the judicial process is linked to the respect that all participants demonstrate toward the process itself. If disorder in China’s courts is in fact contributing to a public crisis of confidence, then addressing the problem at its root is an essential step toward furthering the development of rule of law.

At the heart of the debate over the proposed amendment to Article 309 is disagreement over the root causes of tension in the courtroom. Who is to blame when conflict erupts between the various parties at trial, especially between lawyers and judges? Are unscrupulous lawyers showing brazen contempt for the law and the courts, or are judicial bias and procedural violations forcing some lawyers to adopt more confrontational tactics as a form of protest? Regulating lawyer behavior through the threat of criminal sanctions might lead to a more orderly courtroom, but if defense lawyers become meek participants in judicial proceedings that remain arbitrary and biased, then this is likely to do little to enhance the courts’ reputation for delivering justice. On the contrary, imposing further limits on the fragile rights of lawyers may actually erode public confidence in the Chinese judicial system even further.

Letter of the Law

The existing offense under Article 309 imposes a maximum sentence of three years in prison for “gathering people to stir up trouble or attack a courtroom” or “assaulting a judicial officer (sifa gongzuo renyuan),” when those acts “seriously disrupt courtroom order.” The draft amendment proposes to expand the assault clause to include “those participating in the proceedings.” It also adds two new offense categories: “insulting, defaming, or threatening a judicial officer or participant in the proceedings after being told by the court to stop” and “engaging in other acts that seriously disrupt the order of the court.”

The first of these changes is relatively unproblematic. Liu Renwen, a legal scholar at the Chinese Academy of Social Sciences, has in fact been quick to point out that expanding the scope of protection against courtroom assaults is aimed at protecting the rights of lawyers. In particular, he believes that the change will help address attacks by victims’ family members against defense lawyers or defendants’ relatives. Such attacks are unfortunately frequent in China, particularly in cases involving the death penalty.

There is much less support for the two other proposed amendments to Article 309. Critics contend that “insulting,” “defaming,” and “threatening” are acts that can each be defined quite broadly. Professor Qu Xinjiu of China University of Political Science and Law notes that “insult” can include ordinary name-calling, damage to reputation that might be eligible for civil litigation, and a relatively rare degree of offense that might qualify for criminal prosecution. The proposed expansion of Article 309 does not make clear what degree of insult would qualify for criminal prosecution, or why the existing criminal statute covering insult and defamation is insufficient to handle the acts being targeted. Observers similarly note the ambiguous and subjective nature of the word “threaten” (weixie), which has no corresponding criminal offense. To remedy these problems, Professor Chen Xingliang of Peking University Law School has recommended scrapping the “insulting, defaming, or threatening” clause entirely and expanding the assault clause to cover the more menacing act of “intimidating” (konghe) judicial officers and other parties.

The prospect of sanctions against insult and defamation at trial is particularly troubling to lawyers, who feel unfairly singled out given the way the offense is written to presume the court’s authority. Many have argued that China should in fact adopt measures to give lawyers civil and penal immunity for statements made in connection to a case—a recommendation based on Article 20 of the UN Basic Principles on the Role of Lawyers. Otherwise, it is feared, lawyers who dread the consequences of their speech may become “obsequious and servile” and reluctant to express their defense opinions fully, thereby potentially harming the interests of the defendants they represent.

It is the final clause, known as the “pocket clause” for its ability to contain almost anything, which has generated the most opposition. Lawyers and legal scholars are frequently critical of such legal formulations, considering them to be sloppy, “unscientific,” and open to arbitrary and abusive interpretations. In this instance, critics argue, the inclusion of such a clause is particularly detrimental to lawyers. This is because, as Chen Xingliang explains, both the Supreme People’s Court and Supreme People’s Procuratorate have the power to issue legal interpretations that can shape how provisions like these are applied. In other words, of the three main participants in courtroom proceedings, only lawyers have no say over what “other acts” might be construed as serious disruptions to courtroom behavior—potentially putting them at a serious disadvantage.

Critics and Crackdowns

Stepping back from the issue of how the proposed offense would be worded, critics of the amendment also doubt whether an expanded criminal offense is even necessary. In addition to existing offenses covering insult and defamation, Article 194 of the Criminal Procedure Law empowers a presiding judge to forcibly remove a trial participant or spectator for continuing to violate courtroom order after being warned to stop. In serious cases, the judge may also impose a fine of up to 1000 yuan or a jail term of up to 15 days. With respect to lawyers, other disciplinary sanctions—such as formal warnings or suspensions from practice—can be applied to deal with the most serious cases.

Despite all of these arguments, which were amply presented to lawmakers when the first draft of the Criminal Law amendments was made public in late 2014, the proposed expansion of Article 309 remained essentially unchanged in the second draft presented to the National People’s Congress Standing Committee (NPSC) in late June. Drafters are expected to submit one final proposal for passage later this year.

Will lawmakers once again ignore the opposition of lawyers and legal scholars?

They may very well do so, if the recent crackdown on Chinese rights lawyers is any indication. Liang Jianbing, a law professor at Liaoning Normal University in Dalian, believes that there is a clear link between public opposition to the proposed changes to Article 309 and the sweeping detention of lawyers initiated on July 10. He suspects that many members of the NPCSC were swayed by the outpouring of criticism directed at the first draft by lawyers and legal scholars, putting the future of the proposed amendments in jeopardy. In response, law-enforcement institutions and others who want to see this legislation passed have carried out a highly public campaign against a group of rights lawyers, some of whom have been engaged in courtroom confrontations in the past. The media exposure of these lawyers as “criminals,” Liang argues, is a tactical move intended to overcome remaining skepticism and resistance and secure enough support to ensure that the amendment passes.

Even if the campaign against lawyers is not directly aimed at ensuring passage of an amended Article 309, both threaten to contribute to fragmentation and passivity among lawyers and accentuate divisions between lawyers and other legal professionals. Han Jiayi of the All-China Lawyers Association has warned of lawyers choosing to “stay away from the courts” and instead focusing their practice on matters that do not involve litigation. Those in power might not mind if more lawyers opt to stay out of the courtroom, or if the ones who go to trial are less willing to challenge authority. Nevertheless, these outcomes would create a version of “rule of law” unlikely to satisfy many Chinese citizens.