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George Washington University Law School

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Tuesday, August 21, 2012

More on sentence reductions and a little on the Gu Kailai case

In an earlier post on sentence reductions, I expressed puzzlement that a 2011 Supreme People’s Court directive seemed to go directly against a rule established by the National People’s Congress Standing Committee just a few months earlier. Two contributors to the Chinalaw listserv, Pamela Phan and Susan Trevaskes, have suggested answers to my puzzlement: the SPC directive doesn’t apply to people who have been declared subject to only limited sentence reduction. This makes sense to me. Putting it all together, then, this is how I see the Chinese rules on sentence reduction for good behavior (meaning “establishing merit” or repentance, both as defined in relevant documents). Please note that the following discussion doesn’t apply to sentence reduction based on other things, such as medical parole.

  1. As a general principle, any sentence can be reduced for good behavior. Life sentences can be reduced down as far as 13 years of actual time served, and non-life (“fixed-term”) sentences can be reduced down as far as half of the original sentence in actual time served (Criminal Law, Art. 78). Note that a non-life sentence of imprisonment can’t exceed 15 years for a single crime and 20 years for multiple crimes. The timing issue is a little bit confusing, because Art. 80 of the Criminal Law says that when a life sentence is reduced to a fixed-term sentence, you start counting the fixed term from the date of the commutation. But counting that way seems inconsistent with Article 78’s notion of “actual time served” (实际执行的刑期).
  2. Life sentences can in no circumstances be reduced below 13 years, counting from the date the life sentence is imposed (2011 SPC directive). This adds clarity to the confusing point highlighted above.
  3. These rules are modified in the case of suspended death sentences that are later commuted.
    1. A suspended death sentence can be commuted to a life sentence or to a fixed-term sentence of 25 years (Criminal Law, Art. 50).
    2. Such commuted sentences are usually eligible for further reduction in the normal way, but actual time served cannot be less than 15 years following the initial commutation (2011 SPC directive, Art. 9, Para. 2) (in other words, 17 years from the date the suspended death sentence is imposed). However
    3. A court may, at the time of sentencing someone to a suspended death sentence where certain crimes are involved (including intentional homicide), declare that any post-commutation reductions in sentence shall be limited (Art. 50, Criminal Law). In that case, actual time served must be either 25 years (where the sentence was commuted to life imprisonment) or 20 years (where it was commuted to 25 years) (Art. 78, Criminal Law). I think that in both cases, one would start counting from the end of the two-year suspended period, but am not sure.

Under this analysis, the 2011 SPC directive does not contradict the provisions of the Criminal Code but does indeed add flesh to them.

I should note that in the Gu Kailai case, she was convicted of intentional homicide, but we haven’t been told that the court imposed any limitations on subsequent commutations. (It could have, but apparently did not.) Therefore, she is eligible for sentence reductions that would ultimately see her free in 17 years. Let me stress again that this analysis ignores the possibilities of her getting out earlier on the grounds of medical parole.

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