China's Criminal Justice System: A Work in Progress

Criminal defense lawyer

Friday, 16 July 2010 04:30

Looking at China’s criminal justice system through Western eyes, it is easy to see only its deficiencies. The system is marked by long periods  of  investigatory  detention,  a  high  rate  of  confessions,  and administrative penalties that are tantamount to incarceration without trial. Criminal  suspects  have  no  right  to  refuse  interrogation,  enjoy  no presumption of innocence, and have no right to confront their accusers or compel the presence of witnesses to testify in their defense. The right

to counsel is extremely limited in the investigatory phase of a case and, although there is a right to counsel at trial, that right is circumscribed by the absence of pre-trial discovery and the limited ability of the defense to conduct its own investigation.

While these are major deficiencies in the system, it should also be noted that China's current criminal justice system is only 20 years old and, during that relatively brief period, it has already undergone major reforms.  In  1997,  for  example,  reforms  eliminated  the  practice  of prosecution by analogy, by which a person could be charged with a crime  if  their  conduct  was  analogous  to  other  conduct  specifically prohibited,  even  if  the  offense  in  question  was  not  delineated  in  the criminal   code.   The   1997   reforms   also   abolished   "shelter   and investigation," whereby police could hold a suspect indefinitely while investigating the person's true identity. More certain time limits were also placed  on  the  various  forms  of  detention  known  as  "compulsory measures."

Additional significant reforms to the system can reasonably be expected in the next five to ten years. Many sophisticated legal experts both  inside  and  outside  the  Chinese  government  are  dedicated  to reforming China's criminal justice system to bring it closer to international standards of fairness. As in many areas of reform, China is looking to the West, and in particular to the United States, to gather information about reforms that may be appropriate.

In May 2000, I returned to China for a week of meetings with legal scholars and government officials.3 The topics included the presumption of  innocence,  the  right  to  silence,  the  right  to  confront  witnesses  in person,  pre-trial discovery, and other rights that most American law experts consider fundamental to our justice system.

My experiences in China this year, which included hundreds of interviews with Chinese prosecutors, judges, lawyers, and academics, convinced me that the sentiment in favor of reform is sincere and shared by  a  wide  spectrum  of  legal  experts  both  inside  and  outside  the government. The obstacles to reform, however, are also very real, and the lack of political consensus is only one of them.

The purpose of this article is to provide some context for an ongoing discussion of legal reform in the Chinese criminal justice system and, of course, to give one person’s perspective on the issue.   What follows is an overview of the Chinese system in the context of Chinese society today, a brief history, an analysis of the current criminal justice system, and the prospects for future reforms.