Sunday, June 7, 2015
I've been in China for three weeks teaching a class on American criminal law to a group of Chinese students studying law and/or criminal justice at the Shanghai University of Political Science and Law. Ironically, I couldn't log into this blog while in Shanghai. Despite their varying degrees of English proficiency, the students engaged with the material. There were hiccups along the way. After spending the first session of the course laying out the basics of the adversarial system and the due process model, the students asked to learn about famous trials-including the O.J. Simpson case.
So I adjusted my material and used the narratives of famous trials to explain the basic elements of our adversarial system of justice as well as a few ways in which the system diverges from the ideal. Although my sample size of 40 students is a small one to build insights upon, I did notice some similarities and differences with my experiences of teaching in Germany's civil law system. To begin, many of my students in Shanghai questioned the ability of a jury to understand the case and not be swayed by emotions well-enough to render a decision. Their German peers also tend to question the merits of the jury system-though that questioning is rooted more deeply in the complexity of the law.
One big difference between justice in China and Germany is the relative harshness of punishment in China. In Germany, the bulk of cases that cross prosecutors desks are dismissed or slated for diversion progrems. For that reason as well as the relative disinterest of German prosecutors in striking onerous bargains against the defedant, the rise of plea bargaining in Germany has reinforced the system's leniency. In contrast, justice in China may be both harsh and swift.
Given the harshness and ubiquity of the death penalty in China, I did not expect my students in Shanghai to place as much faith as they did in the symbolic role of punishment. One student even commented that it would be better for 9 innocent people are convicted, than if the court would let free one guilty person. While the prevalence of plea bargaining and the prospect of harsh sentences has compromised the fairness of the process in the U.S., the general public has begun to question the wisdom of high incarceration levels. In contrast in China, at least among the future elite, there appears to be a solid faith in the system's results and a cautious optimism that the State may temper those punishments in the future.