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Leniency in Chinese Criminal Law? Everyday Justice in Henan Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2015 Leniency in Chinese Criminal Law? Everyday Justice in Henan Benjamin L. Liebman Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Criminal Law Commons, and the Criminal Procedure Commons Recommended Citation Benjamin L. Liebman, Leniency in Chinese Criminal Law? Everyday Justice in Henan, 33 BERKELEY J. INT'L L. 153 (2015). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1085 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. Berkeley Journal of InternationalLaw, Vol. 33, Iss. 1 [2015], Art. 1 Leniency in Chinese Criminal Law? Everyday Justice in Henan Benjamin L. Liebman* This Article examines one year of publicly available criminaljudgments from a basic-level rural county court and an intermediate court in Henan Province in order to better understandtrends in routine criminal adjudicationin China. I present an account of ordinary criminaljustice in China that is both familiar and striking: a system that treats serious crimes, in particular those affecting State interests, harshly, while at the same time acting leniently in routine cases. Most significantly, examination of more than five hundred court decisions shows the vital role that settlement plays in criminal cases in China today. Defendants who agree to compensate their victims receive strikingly lighter sentences than those who do not. Likewise, settlement plays a role in resolving even serious crimes, at times appearing to make the difference between life and death for criminal defendants. My account of ordinary cases in China contrasts with most Western accounts of the Chinese criminal justice system, which focus on sensational cases of injustice and the prevalence of harsh punishments. The evidence I present provides insight into the roles being played by the Chinese criminaljustice system and the functions of courts in that system. This Article also provides empirical evidence that contributes to debates on a range of other issues, including the relationship of formal law to community norms in Chinese criminal justice, the roles of witnesses and lawyers, the function of appellate review, and how the system confronts and handles a range of high-profile topics. My findings also contribute to literature on courts in authoritarian regimes and the evolution of authoritarian * Robert L. Lieff Professor of Law and Director, Center for Chinese Legal Studies, Columbia Law School. BLiebmalaw.columbia.edu. 153 http://scholarship.1aw.berkeley.edu/bjil/vo133/iSS1/1 158 : Full Issue 33:1 154 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 33:1 transparency. This Article provides a base for discussing the future of empirical research on Chinese court judgments, demonstrating that there is much to learn from the volume of cases that have recently become publicly available in China. TABLE OF CONTENTS INTRODUCTION ....................................................... 154 I. BACKGROUND: HENAN'S PUSH TOWARD "JUDICIAL TRANSPARENCY"......... 158 II. FINDINGS............................................. ............ 168 A. Overview ................................... ..... 168 1. County Court.. ................................... 168 2. Intermediate Court................... .............. 170 B. Leniency and Settlement ..................... ......... 174 C. Overcriminalizationand State Interests .............. ..... 189 D. High-ProfileIssues.... ................................. 190 1. Corruption and FinancialCrimes.............. ...... 191 2. Land Disputes. ........................... ...... 192 3. Social Stability and Protest ............ .......... 192 4. Female Defendants and Crimes Within the Family.................. 193 E. Lawyers and Legal Arguments .................... ..... 196 F. Appeals and Rehearings .............................. 204 G. Roles ofIndividual Judges ..................... ....... 210 H. PredecisionDetention and Bail ............ .......... 210 III. IMPLICATIONS AND ANALYSIS .......................... ............ 211 A. Methodology and EmpiricalFindings ............. ....... 211 B. Leniency and the Roles of Chinese CriminalLaw ...... ...... 213 C. The (D)evolving Roles of China's Courts......................... 217 D. Authoritarian Transparency .............................. 220 CONCLUSION .......................................... ........ ............ 222 INTRODUCTION English-language scholarship on the Chinese criminal justice system largely focuses on major cases and harsh punishments: "strike hard" campaigns, capital cases, torture, and sensational cases of wrongful convictions. With few exceptions, the term "leniency" rarely factors into Western accounts of criminal justice in China. When it does, it is principally in the discussion of national policies embracing the combination of leniency and harsh punishment, kuanyan xiangfi, or leniency for those who confess, rather than empirical study of court Published by Berkeley Law Scholarship Repository, 2015 159 Berkeley Journal of InternationalLaw, Vol. 33, Iss. 1 [2015], Art. 1 2015] LENIENCY IN CHINESE CRIMINAL LAW? 155 practices.1 In contrast, this Article shows that leniency is a key characteristic of everyday Chinese criminal justice, particularly in rural areas. This Article examines one year of publicly available criminal judgments from a basic-level county court and an intermediate court in Henan Province in order to better understand criminal justice in rural China and in small towns and mid-sized cities of the country. I supplement my analysis of cases with interviews of judges, academics, and lawyers in Henan. I have two primary goals. The first is to develop an understanding of trends in basic-level criminal adjudication in China. I aim to paint a picture of what ordinary crime and criminal justice looks like in one county and one municipality 2 in China. What emerges is an account of ordinary criminal justice in China that is both familiar and striking: a system that treats serious crimes, in particular those affecting State interests, harshly, while at the same time practicing leniency in more routine cases. Most significantly, examination of more than five hundred court decisions shows the vital role that settlement plays in Chinese criminal cases today. Defendants who agree to compensate their victims receive strikingly lighter sentences than those who do not. Whether or not a settlement has been reached is far more important to the resolution of a case than more traditional legal factors, including legal arguments and evidence presented. Although the importance of settlement has been noted in prior Chinese language scholarship, no prior work has examined the practice through the study of court dockets or a large volume of case decisions. 3 My dataset also allows me to examine the role of intermediate courts in trying major crimes and in reviewing appeals from lower courts.4 Again, the findings are surprising. Appellate courts are far more 1. See, e.g., Susan Trevaskes, The Death Penalty in China Today: Kill Fewer, Kill Cautiously, 48 ASIAN SURV. 393, 399 (2008) (describing the creation of the "balancing leniency and severity" policy). 2. In China the municipality, or shi, is the primary subprovincial governance unit. A municipality generally includes both extensive rural areas and county towns, administered by county governments, and urban areas, administered by district governments. 3. The most detailed and important prior work in English on the Chinese criminal justice system looks at a selection of cases from a range of different courts but does not examine every case from any individual jurisdiction. See MIKE MCCONVILLE, CRIMINAL JUSTICE IN CHINA: AN EMPIRICAL INQUIRY 40 (2011). 4. China's court system is divided into four tiers: basic courts at the county (in rural areas) or district (in urban areas) level, intermediate courts at the municipality level, provincial high courts, and the Supreme People's Court. The vast majority of cases are tried in basic-level courts, with a right to a single appeal to an intermediate court. But serious cases, including criminal cases in which a defendant faces a potential death sentence or life imprisonment, are tried in intermediate courts with a single appeal to the provincial high court. The State is represented by the procuratorate in criminal cases. The procuratorate may appeal verdicts in criminal cases regardless of the outcome in the first-instance court; there is no bar to the procuratorate appealing nonguilty verdicts or to arguing that a lower court was too lenient toward a defendant. Decisions become final after a decision on appeal is issued (or after the time for an appeal has expired). But courts may also decide to retry cases at a later date through retrial (zaishen) procedures. Courts also must retry a case if requested to do so by the procuratorate. Litigants may request a rehearing within two years of a final decision. There is no time limit on rehearings initiated by the courts or procuratorates. In practice this means http://scholarship.1aw.berkeley.edu/bjil/vo133/iSS1/1 160 : Full Issue 33:1 156 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 33:1 aggressive in policing lower-court judgments
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