Wednesday, July 20, 2016
Andrew Chongseh Kim (Concordia University School of Law) has posted Prosecuting Chinese 'Spies' on SSRN. Here is the abstract:
The primary question this study seeks to answer is: “Are people of Chinese descent disproportionately falsely prosecuted as spies?” The answer, this study finds, is yes.
It uses PACER court filings from a random sampling of Economic Espionage Act cases to identify disparities in prosecutions. It finds that around a third of EEA prosecutions include Chinese defendants and that the average sentence for convicted Chinese defendants is over twice as long as that for Western defendants. Whether these findings reflect improper bias against Chinese defendants or simply reflect the magnitude of the problem of Chinese espionage is a question for further study.
This study next finds that the DOJ likely is filing charges under the EEA against innocent Chinese in gross disproportion to other groups.
When federal prosecutors file Economic Espionage Act charges against defendants with Western names, they prove their guilt with a conviction for espionage or similarly serious crimes in 95% of cases. When prosecutors file EEA charges against defendants with Chinese names, they only prove their guilt of espionage in 70% of cases. In 30% of cases, the defendant is acquitted at trial, prosecutors dismiss all charges, or the defendant is convicted only of minor, non-espionage charges such as false statements made to officials the course of the investigation. There are many reasons that prosecutors might not convict an accused spy of espionage charges other than their innocence. Nonetheless, given the stark disparities of these numbers, it appears that the Department of Justice is, as many suspect, disproportionately prosecuting innocent Chinese and innocent Chinese-Americans of being spies.