Stalemate on Detention Center Law

Reformers widely agree that changes are needed to the management of detention centers, which are currently governed by a set of administrative regulations issued in 1990. Image credit: Sixth Tone.

It has been more than a year since the Ministry of Public Security circulated a draft of the new Detention Center Law for a one-month period of public comment. The consultation period served as an opportunity for Chinese legal scholars and lawyers to reiterate their strong criticism of the current system of detention and express their visions for reform—positions which have been relatively consistent for many years.

It is difficult to say where the process stands now. As is common in the process of Chinese law-making, there is little transparency about how public comments are incorporated into the legislative process. No new drafts have been made public, and the only news from China’s legislative body, the National People’s Congress (NPC), is that work on the Detention Center Law will continue under a new legislative plan.

Things appear to be in a stalemate. Reformers widely agree that changes are needed to a system that is currently governed by a set of administrative regulations issued in 1990. There is widespread consensus among critics that the key to reforming China’s detention centers is shifting administrative responsibility from the Ministry of Public Security (MPS) to the Ministry of Justice (MOJ). But the draft legislation put forward by the MPS proposes strengthening legal provisions without touching the current institutional arrangement.

The argument for moving detention centers away from MPS control is based on a critique of the overlapping and conflicting functions that detention centers are currently used for. At present, Chinese detention centers play both a custodial role and an investigatory role. In addition to housing suspects and defendants, detention centers are expected to enhance criminal investigation and uncover additional evidence of crimes. According to critics like Professor Chen Ruihua of Peking University, some places have even based performance criteria for detention centers on their role in solving criminal cases. There is estimated to be at least 3,000 detention centers in China housing more than one million individuals.

One consequence of using detention centers to further criminal investigations is the widespread use of “jailhouse bullies” and informants to obtain evidence or confessions from suspects. This clearly violates evidence rules and leads to false confessions and wrongful convictions. It has also been blamed for a number of deaths in detention under mysterious circumstances.

This blurring of functions in Chinese detention centers is made possible because the public security system is responsible for both criminal investigation and detention—with the former being given higher priority in the interest of social stability and national security. Shifting responsibility for detention to the MOJ would put detention facilities in the hands of an institution with no direct interest in the outcome of a criminal investigation. This would, in principle, make detention centers more neutral sites that can focus on the protection of detainees’ rights.

Advocates of such reform believe that putting detention centers under the MOJ would not only help to reduce jailhouse abuses but also facilitate the rights of suspects and defendants to meet with legal counsel. It will lead, they also believe, to a much stronger presumption of innocence throughout the pre-trial phase of the criminal process. The current regulations governing detention centers still refer to detainees as “criminals” (renfan), as opposed to “suspects” (xianyiren) or “defendants” (beigaoren)—terms that have already been well-established in China’s Criminal Law and Criminal Procedure Law. Notably, the draft MPS legislation did propose making these changes in terminology, but critics doubt that changing the wording will lead to changing the mindset and practices that presume all detainees to be guilty. Another benefit to placing detention centers under the MOJ is that it would allow detainees to use points earned for good behavior towards future applications for sentence reductions.

The current stalemate may be hard to overcome given the institutional interests at stake in preserving the practice of using detention as a tool of criminal investigation. The fact that the MPS draft has not been enacted by the NPC suggests that there may be relatively strong support for deeper reform. But the battles and negotiations over Chinese legislation mostly take place behind closed doors, far from the public eye. The next opportunity for insight into the content of the law might well be after it’s passed by the NPC Standing Committee—at which point, the debate will have been settled one way or another.

Flouting Global Norms, China Continues to Incarcerate Prisoners for Abolished Crimes

The fifth session of the 8th National People's Congress, which adopted the revision to the Criminal Law. Image credit: NPC.gov.cn.

As Dui Hua has previously reported, the People’s Republic of China continues to incarcerate prisoners for the crimes of counterrevolution and hooliganism, despite the abolition of these crimes in 1997. A recent comparative survey of criminal laws, summarized below, notes that most countries (67 percent) allow some “retroactive ameliorative relief” (e.g., sentence reductions or early release) in the wake of legislative changes that abolish or lighten the sentences of certain crimes. The major governing human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), determine that prisoners should benefit from legal reforms that impose lighter penalties than those in existence at the time the offense was committed. Although prisoners serving sentences for abolished crimes have received sentence reductions, the Chinese government should unequivocally join other countries by releasing and doing more to reduce the sentences for these prisoners.

The Long Reach of Counterrevolution and Hooliganism

Chinese legal scholar Chen Jianfu points out the crime of counterrevolution has always assumed primary importance in the PRC’s criminal justice system. One of the first PRC legal provisions, the “Regulations for the Punishment of Counterrevolutionaries,” passed in 1951, reveals that counterrevolutionary crimes were primarily political in nature. When the PRC Criminal Law was amended in 1997, problems with enforcing these ambiguously worded, politically charged counterrevolutionary crimes led to the abolition of this criminal legal category; some of the activities that fell under counterrevolutionary crimes were included into the collection of “endangering state security” crimes which are tailored more directly at criminalizing specific actions that threaten the state.

Dui Hua’s research has uncovered the names of prisoners in China who continue to be incarcerated for political crimes of counterrevolution. Dui Hua has received written responses from the Chinese government that the following individuals are still imprisoned for crimes of counterrevolution:

• Chen Yulin (陈瑜琳): Chen is a former Xinhua news agency employee who was convicted of espionage by the Guangzhou Intermediate People’s Court on March 4, 2004 and sentenced to life imprisonment. Because Chen’s alleged offense took place before the amended Criminal Law took effect in 1997, he was tried under the 1979 Criminal Law for the crime of counterrevolution. Chen Yulin’s life sentence was commuted in 2007 and replaced with a fixed-term sentence of 19.5 years. Although Chen has received multiple sentence reductions, he is not due for release until August 26, 2020.
• Jiang Cunde (蒋存德): Jiang is a former labor activist serving in Shanghai’s Tilanqiao Prison for counterrevolutionary sabotage and illegal possession of weapons. He was diagnosed with schizophrenia in prison and in 1993 he was released on medical parole. In 1999, he was re-incarcerated for participating in demonstrations. Since then, Jiang has received only one sentence reduction, in 2004, when his life sentence was commuted to a fixed-term of 20 years’ imprisonment. A government response given to Dui Hua in 2015 stated that Jiang was held in a “mental retardation unit” and a response in 2018 indicated that there had been no change to Jiang’s sentence. Jiang’s sentence expires on August 22, 2024.
• Abdukerim Abduweli: Abduweli was sentenced by the Urumqi Intermediate People’s Court to twelve years in prison on May 6, 1993, for counterrevolutionary propaganda and incitement and leading a counterrevolutionary group. According to information provided by the Chinese government, his imprisonment has been extended several times. His sentence expires in December 2018.
• Omer Akchi: Akchi was detained in December 1996 for organizing the Islamic Party of Allah. Akchi continues to serve his 21-year sentence for counterrevolution.

Although prisoners serving sentences for abolished crimes in China have received clemency in the form sentence reductions, cases such as Chen Yulin’s and Jiang Cunde’s demonstrate the importance Chinese leadership should place in aligning its laws with international. Dui Hua has received government responses on both cases in 2018. The responses confirm that Jiang Cunde has not received a sentence reduction in over 14 years and that by the time Chen Yulin is expected to be released, he will have served more than 16 years in prison. Dui Hua’s research has found that sentence reductions for prisoners serving sentences for counterrevolution are infrequently handed down and those that are handed down are usually only in the months to yearlong range. In the case of life sentences that are commuted to fixed-term sentences, such as for Jiang and Chen, the time spent already served does not count towards their new fixed-term sentence, which is usually twenty years imprisonment. Another impediment to the formalization of retroactive ameliorative relief is that when sentence reductions are filed by the prisons to the courts the justification for the sentence reductions is based almost exclusively on evidence of meritorious behavior, never the fact that the prisoners are serving a sentence for a crime no longer in the books. Following the latest regulation on sentence reduction released by the Supreme People’s Court in November 2016, prisoners serving sentences for endangering state security crimes (which replaced many of the offenses previously categorized under counterrevolution) must wait three years, rather than the standard two years, before they can be considered for sentence reductions. The regulation fails to clarify the status of prisoners serving sentences for counterrevolution and hooliganism.

The ill-defined crime of “hooliganism” was also abolished in 1997, yet nearly 200 individuals remain incarcerated for this crime. Inspired by the criminal laws of the former Soviet Union and other socialist states, hooliganism was loosely defined, granting state officials the broad discretion to punish undesirable behavior as defined in interpretations issued by the Supreme People’s Court and the Supreme People’s Procuratorate. Between 1979-1997, a large but unknown number of people were convicted of this offense.

Dui Hua’s research into online judgments has uncovered the names of 182 prisoners serving sentences for hooliganism who were still in prison as of December 31, 2017. Although the offense was abolished in 1997, some of them received sentences in the 2000s or even more recently, because the Criminal Law imposes no limit on the period of prosecution for cases where the suspect has escaped after a case has been filed by police or procuratorate, or heard by the courts.

International Norms on Abolished Crimes

The Chinese government’s continued incarceration of these prisoners marks a clear break from international norms regarding changes to the criminal law and prisoners convicted of those crimes. This area of international and comparative criminal justice policy, referred to as “retroactive application of ameliorative law,” was examined in a recent report by the Human Rights in Criminal Sentencing Project at the University of San Francisco School of Law. According to the report, the international legal framework governing retroactive amelioration is explicit and clear: “The major governing human rights treaties allow an offender to benefit from a change in law that imposes a lighter penalty than the one in existence at the time the offense was committed.”

In the report, of 193 countries surveyed, 129 (or 67%) have incorporated some type of provision requiring retroactive implementation of a lesser penalty into their constitution and/or their criminal statutes. Under retroactive ameliorative relief, a law change that eases or eliminates punishments for a specific crime would result in a corresponding amendment to any convictions and sentences for persons already convicted of the crime. Revisions to death penalty statutes provide perhaps the clearest illustrations of the importance of retroactive relief: according to Amanda Solter, Project Director of the USF Human Rights and Criminal Sentencing Reform Project, when the death penalty was repealed in the US states of Connecticut and New Mexico, the change was not made retroactive, leaving prisoners on death row despite a lack of valid legal authority for the state to carry out executions. “South Africa, on the other hand, abolished the death penalty and made it retroactive for 300 to 400 people on Death Row. Russia did the same in the ’90s and commuted the sentences of roughly 700 people.”

China Should Unambiguously Follow Global Norms and Release Prisoners and Increase Transparency

To take a global leadership role in the world, China should avoid such contradictions in its criminal law and unequivocally embrace retroactive ameliorative relief when crimes are removed from applicable criminal justice statutes. This policy stance would involve releasing and/or commuting the sentences of all prisoners confined for committing the long-defunct crimes of counterrevolution and hooliganism. In the event that release or commutation is not granted, the relevant legal authorities should issue a transparent explanation justifying the continued imprisonment under valid and effective criminal law provisions.

General proscriptions against retroactive applications of law should not be an obstacle to recognizing ameliorative relief; in fact, such objections have already been addressed in the applicable international legal provisions. Article 15 of the ICCPR prohibits criminal ex post facto laws but notes the exception that “[i]f, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.”

Given the global consensus on this issue, the Chinese government should clarify its policy regarding changes to the criminal law and their effects on prisoners incarcerated for those crimes. In this case, releasing prisoners whose acts of “counterrevolution” or “hooliganism” have been completely decriminalized would send a strong message and bring Chinese law into alignment with the international consensus on this issue.