Five Years and Counting

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

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

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

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

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

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

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

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

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

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

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

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

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

Clemency for Singing Red Songs

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

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

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

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

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

Reforming Prisoners through Red Song Rehabilitation

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

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

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

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

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

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

Clemency Rewards for Red Prisoners

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

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

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

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

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