中国法律博客
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Rule of Law: Public Opinion and Criminal Sentencing
媒体来源: 中国法律博客

Before anyone gets too excited by that post title, don't expect the following to be some sort of statistical analysis or in-depth treatment of criminal sentencing in China. Unless someone wants to give me a grant to study that stuff, I'll keep my comments within the realm of light commentary.

This is the second post I've categorized under the "Rule of Law" topic, the first being some comments on the Deng Yujiao murder case, which has attracted even more media/online attention over the past week.

Some of the most recent online debates surrounding criminal cases suggest that folks are not merely paying attention to individual instances of apparent injustice — the Deng Yujiao case is a good example — but also of trends and comparisons. The latter is an interesting phenomenon, and one that would not be possible I think without the Internet and the ability to research cases nationwide.

When I think of similar public outcries against legal cases in the U.S., they seem to be one-off complaints (e.g. the O.J. Simpson murder case). To be sure, folks complain about "the system" all the time, particularly institutional racism and the ability of wealthier individuals to "buy justice" by hiring expensive attorneys.

Those cases aside, I do not recall large-scale public complaints in the U.S. that focus on the variance of judicial outcomes. But this is exactly what you see here in China, with increasing regularity. One reason for this is that China has only one set of basic laws, whereas countries like the U.S. have multiple jurisdictions (e.g., the U.S. has 51 separate criminal laws and procedures). With one set of laws here, it is easier to compare similar cases and criticize variable outcomes.

Let's take a look at an example of a set of cases that have received attention. The three cases involve allegations of property theft.

1. Now That's What I Call Embezzlement

Pretty straightforward case here. Beijing government official in charge of "environmental sanitation" embezzled 36 million RMB of State funds. Death penalty is the result, although it could've been worse. The embezzler was not given a straight death sentence, but received the more lenient death penalty with two-year stay. With the latter sentence, as long as the individual does not commit another crime during the two-year period, the sentence will be reduced to life in prison.

2. The Big ATM Withdrawal

This is a familiar story. Guy goes to his ATM to withdraw some cash. He takes out 1000 RMB, only to find that a one RMB withdrawal is reflected in his account. Sounds great, right? That's exactly what he thought, so he proceeded to take out 54,000 more, and then came back with a friend to continue the process. In total, our friendly defendant got away with about 175,000.

Of course the police caught up with this guy and he was prosecuted. His first trial resulted in a life sentence. On appeal, the case was remanded back to the trial court for questionable reasons (see below). After the second go around, our "lucky" defendant received a sentence of five years in prison. The second sentence was affirmed on appeal.

3. Chinese People Are So Rich, You Should See What They Throw Away

This is a fun one. A woman working at the Shenzhen airport notices a box next to a garbage can. She comes back later and sees that it is still unattended, and presumably was thrown away. She grabs the box and later discovers that it contains 14 kg of gold jewelry. That same day, after she took the box home with her, the police are dispatched to secure the box and the jewelry. In response to their questions, she confirms that she is still in possession of the box and turns it over to them. They promptly arrest her on suspicion of burglary, and she could face up to life in prison.

Case Comparison

So what do we have here? Three alleged cases of theft. For one of these, the embezzlement, there is no question of intent to commit a crime — this is pretty much a given. For the ATM thief, I think intent was fairly easy to establish as well, given the amount of money taken and the fact that he left town afterward. Intent seems to be a big problem for the prosecution with this last case, however, seeing as how this woman may have a decent argument that this box had apparently been abandoned. (I don't know what the rules are at the Shenzhen airport for staff and lost articles, but that has nothing to do with application of the Criminal Law.)

You can see why some people have had a problem with the variable sentencing, more specifically the variance in possible sentencing, of these cases. No one is complaining (except his family) that the embezzler's sentence was too harsh. The case has received quite a bit of attention due to the huge amount of public funds at issue.

However, it hardly seems fair that our hapless ATM thief, who if you recall originally received a life sentence, should be treated the same way as that embezzler. And why exactly was the ATM case remanded back to the trial court? I can't get a clear answer from my research, although some people believe that the resentencing was a direct result of public pressure (i.e. people were pissed off that this poor guy, portrayed as some sort of victim of the bank, should be thrown in prison for life due to a technical malfunction).

The interesting thing to note about the ATM case is that if one follows the strict letter of China's Criminal Law, the withdrawal constitutes theft from a financial institution, and coupled with this large amount, a sentence of life imprisonment is appropriate.

When we get to the third case, comparisons lead to even more problems. In this instance, the defendant did not attempt to flee (unlike the ATM guy). Her intent to commit a crime is questionable, unlike the other two cases. Moreover, no state funds or assets were involved, and the property in question was not taken from a financial institution (or similar, specially protected unit).

So why the harsh treatment? For the most part, the answer seems to be the value of the "stolen" property, which was over 3 million RMB. It is undoubtedly common in many countries for criminal sentencing in cases of theft to differ based on the value of the stolen goods, with some jurisdictions instituting a two-tiered or multi-tiered system of punishment based on the amount.

But for someone who may (yes, it's a big "may") have innocently absconded with a box that appeared to be trash to end up in the back of a police car, and now face an extended prison sentence — this does not look like justice to a lot of people.

The Big Picture

To wrap up, there are several interesting issues here. First, with the ATM case, did public pressure really lead to the remand and resentencing? If yes, even if this led to a more reasonable sentence, the process is mighty troubling. Bowing to popular pressure is no way to run a criminal justice system.

Second, is it just me, or do many of these cases that capture the public's attention involve female defendants? I'm not sure if this says more about the way the system is biased against women or whether the public is just predisposed to feel more sympathetic towards women, but either way it raises questions.

Third, what do people in China want out of their criminal justice system? It is not useful to clamor for "fairness" — way too nebulous a term. It's a given that a system that gives so much discretion to judges will have significant variance across the country. We can either go in the direction of less discretion (i.e. more sentencing guidelines), or different methods of choosing and training judges to ensure that we achieve results we perceive to be favorable.

Fourth, are the criticisms fair? The life sentence for ATM guy on the basis of his taking money from a financial institution seems harsh, and certainly what is happening to the airport worker sounds terrible. Should these folks be treated the same way as the embezzler? One would be hard pressed to say yes.

On the other hand, if folks are taking these variances and concluding that the system is fundamentally unfair (i.e., this view of the criminal justice system is undermining the rule of law), I think this would be unfortunate. Perhaps the ATM case exposes the unfairness of treating such a theft the same way as a bank robbery — maybe the law should be changed — but this is not evidence of a basic flaw in the system.

The airport case reflects poorly on the police, and we'll see how the prosecutor's office responds. One would hope that if the State cannot prove intent (mandatory under Article 14 of the Criminal Law), the accused will be released. If she is not, however, is this an indictment of the system or simply a further example of a specific incorrect outcome?

I am generally skeptical of these sorts of comparisons. The public rarely knows sufficient details to make a fair judgment and often generalizes anecdotal evidence of unfairness to indict the entire system. On the other hand, the general perception of unfairness comes from somewhere, often individual (negative) experience with the criminal justice system.

Unfortunately, there is a self-perpetuation of perceived unfairness. If you believe the system is unfair, you will tend to view other cases you read about in the news through that lens and see bad outcomes. The question is how to break that cycle and restore faith in the system.

A question for another time.

[The usual caveat. Like everyone else, I do not have access to the judgments of any of the cases I mentioned above. The facts are taken from news reports and may be incorrect. Sorry about that — best I can do.]

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