Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

A Member of the Law Professor Blogs Network

Wednesday, August 22, 2012

New report on abuse of psychiatry in China

The organization China Human Rights Defenders has just published a report on abuse of involuntary psychiatric commitment in China. Here's a summary from The Daily Beast.

As far as I know, the most recent full-scale treatment of this issue is Robin Munro's path-breaking China's Psychiatric Inquisition: Dissent, Psychiatry and the Law in Post-1949 China (London: Wildy, Simmonds and Hill, 2006). I have a blog post about it and the controversy his work engendered here. (Bottom line: Munro 1, critics 0.)

Involuntary commitment is an area desperately in need of legal standards. The abuses that occur now can't be blamed on authorities flouting or bending existing law. They don't need to bother; the existing legal regime pretty much gives them carte blanche to involuntarily commit anyone by just saying it's necessary.

Without some standards, I have an uneasy feeling that if current efforts to abolish re-education through labor in its current form succeed, we'll suddenly - through the operation of a kind of Law of Conservation of Police Discretion - see an increase in the number of supposedly crazy people needing commitment.

August 22, 2012 in Commentary, News - Chinese Law, Publications | Permalink | Comments (0) | TrackBack (0)

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.

August 21, 2012 in Commentary | Permalink | Comments (0) | TrackBack (0)

Monday, August 20, 2012

Sentencing philosophy in Chinese criminal law: Zhang Xiaojun versus Liu Xiaobo

According to the official Xinhua report, Zhang Xiaojun was Gu Kailai’s accomplice in a premeditated murder. He was convicted of intentional homicide. His sentence was nine years.

According to the official indictment, Liu Xiaobo committed the following acts:

  • He published a number of “inciting articles” containing “rumors and slanders” (no slanders against any persons living or dead are mentioned in the indictment).
  • Together with others, he "drafted and concocted" Charter 08.
  • He distributed Charter 08 via e-mail to overseas websites and posted it on overseas websites.

That’s it. Really. See for yourself. He was sentenced to eleven years.

Just sayin’.

 

August 20, 2012 in Commentary, People and Institutions | Permalink | Comments (2) | TrackBack (0)

My CNN op-ed on the Gu Kailai trial

0810_Gu_Kailai_630x420
Now that the verdict is out, here's my slightly updated CNN op-ed on the whole thing.

August 20, 2012 in Commentary, News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Where Gu Kailai will likely spend her time: China's Club Fed

Image003-

Here's a profile of Qincheng (秦城) Prison, where high-ranking prisoners stay and where the cognoscenti figure Gu Kailai will go (assuming she's not spirited off to a nice tropical island somewhere).

August 20, 2012 in Commentary, News - Chinese Law, News - Miscellaneous, Other, People and Institutions | Permalink | Comments (0) | TrackBack (0)

Sunday, August 19, 2012

How much time will Gu Kailai actually have to serve under Chinese law?

Gu Kailai has been sentenced to death with a two-year suspension. Under Art. 50 of the Criminal Law, if she commits no new intentional crimes while in prison, that sentence will be commuted after two years to life imprisonment. It can even be commuted to 25 years’ imprisonment if she “genuinely demonstrates major merit” (确有重大立功表现). And further reductions are possible after the initial commutation.

Under Art. 78 of the Criminal Law and a 2011 Supreme People’s Court directive, those sentenced to life imprisonment or a term of years (including as a result of a commuted death sentence) may have their sentences reduced for good behavior (that's my own term; Chinese law speaks of showing repentance or establishing merit) during their imprisonment. And various forms of good behavior are listed, including (in the 2011 SPC directive) paying compensation. Presumably that will not be a problem for Gu.

But there are limits: Art. 78 of the Criminal Law states that a death sentence commuted to life imprisonment may under no circumstances be reduced to less than 25 years of actual time served, and a death sentence commuted to 25 years’ imprisonment may under no circumstances be reduced to less than 20 years of actual time served, in each case counting from the date of the original commutation. And even less is possible: in its 2011 directive, the Supreme People’s Court simply overrode the Criminal Law and stated that a commuted sentence could ultimately be reduced to as little as 15 years of actual time served. [ADDITION: A colleague also points out the intriguing possibilities of medical parole even earlier after just 9 years of actual time served: see this post from Dui Hua Foundation.]

I can’t resist digressing here to point out that the 2011 SPC directive is pretty remarkable: only a few months before, on February 5, 2011, the National People’s Congress Standing Committee had passed an amendment to the Criminal Law, effective May 1, that specifically established the 25/20-year rule. Yet on Nov. 21, 2011, the Supreme People’s Court passed its directive (effective July 1, 2012) overriding this rule. Needless to say, the SPC has absolutely no authority to directly contradict NPC legislation in this way. They can’t even claim, as is often done, that the existing rule was out of date and simply needed to be changed.

 

August 19, 2012 in Commentary, News - Chinese Law | Permalink | Comments (1) | TrackBack (0)