Supreme People’s Court’s new policy on drugs

ceb176df44f7c0a32fc56771bb9ba2c9This short blogpost follows up on the recent report on the same topic in the  Diplomat.

In late May, the Supreme People’s Court issued a conference summary on drug crimes (全国法院毒品犯罪审判工作座谈会纪要) setting out further guidance to the lower courts on trying drug cases (for those diving deeper into the subject, a transcript of comments by an official of the #5 criminal division follows the text of the conference summary).

Conference summaries are what the Court entitles “normative documents” and often address new issues or areas of law in which the law is not settled.   “Conference summaries” are also a form of Communist Party/government document.  Conference summaries are not considered “judicial interpretations” and are not required to be made public.  The full text was not generally issued in the legal press but has appeared in social media. This blogpost will look further into the conference summary and what it implies.

The conference summary

A national drug crimes court conference was held in December, 2014, with delegates both from the military and civilian courts.   Although the actual number of drug cases heard in the military courts is unknown, they do occur, as indicated by a press report of a man sentenced in Anhui for selling drugs, who had previously been convicted by a military court in Lanzhou for selling drugs (and other offenses).

The Court organized the conference to ensure that the lower courts were trying drug crimes in line with the latest national policy on the matter and to harmonize lower court practice.  That national policy is set out in the first Central Committee/State Council policy document on drug crimes, issued in July, 2014, and the content appears to be sensitive enough that the full text has not been published. “Harmonizing court practice” means in  Chinese judicial parlance that judges are applying the law similarly. As explained earlier, judicial conferences are an important way of doing so. The conference summary, which was circulated among conference participants (and the Court leadership) sets out guidelines for judges on difficult issues, including the death penalty.

Death penalty

A good analysis of prior law on drugs and the death penalty can be found here. The conference summary provides guidance on how to apply the death penalty, and is consistent with the Court’s general principles on applying the death penalty–in a minority of cases and to the worst offenders.  The conference summary provides guidance in relation to three issues:

  • Trafficking of illegal drugs–the death penalty is most appropriately applied to the head of a drug enterprise, who organizes, ships illegal drugs with armed guards, hires others, etc, and executing 2 or more persons in the same case should be very carefully considered.
  • Illegal drugs supply chain–the death penalty should be applied to the worst offenders.
  • New types of drugs-meth, ice, ketamine–similarly, the death penalty should be applied to the worst offenders.

Who commits drug crimes?

According to a 2011 Court research report, the profile of those committing drug crimes is:

  • Unemployed (51% in 2011), with about 90% peasants and unemployed (this has implications for the government’s urbanization plans;
  • Greater proportion (11%) of women in comparison to other crimes;
  • Many recidivists;
  • Generally low level of education;
  • Involving high level of profits when trafficked away from border areas; and
  • Increasingly involving new types of drugs.

Comment

As Chinese people become wealthier (and the economy becomes more internationalized), drug use (and the illegal drug industry) is growing correspondingly.  As in legal goods, some illegal drug  manufacturing has moved to China.  Although last July’s high level document calls for a three year plan to control illegal drugs, it seems more likely that we will continue to see an increase in drug cases heard in the Chinese courts and capital punishment applied to the most major offenders.

Updated with further analysis: What does the 4th Plenum mean for death penalty reviews?

video interview in a death penalty review case

video interview in a death penalty review case

In a  press report in Southern Weekend last month (summarized in this report), the Supreme People’s Court (the Court) revealed that  an important legal reform related to death penalty reviews is forthcoming–institutionalizing legal representation in death penalty reviews.  This development, and others still in the works, are likely linked to the following provisions in the 4th Plenum Decision:

  • For appeals from dissatisfaction with effective judgments or decisions of judicial organs, gradually implement a system of lawyer representation. Bring appellants unable to hire a lawyer within the scope of legal aid.
  • Advance systemic reform in litigation with trial at the center;
  • complete effective guards against unjust, false and wrongfully decided cases.
  • bring about a system of lifetime responsibility for case quality and wrongful cases accountability system.

The Southern Weekend report has now been more fully summarized by the Duihua Foundation.

(This reform caught my attention because because I raised this issue when conducting an interview at the Supreme People’s Court in the early 1990’s, when researching my 1993 Supreme People’s Court article in the Journal of Chinese Law.)

Some background on death penalty review in the Court

As many others have described, death penalty review is carried out solely within the Court (in contrast to the period that I wrote my article) in an administrative procedure (my article describes the procedure at the time, and other articles describe the current process). The Southern Weekend article describes it as taking place in an unmarked office building away from  Court headquarters, guarded by a member of the Armed Police.

The Court has increased the number of criminal tribunals from two (when I wrote about this procedure 20 years ago in my article) to five tribunals, but the Court has not issued regulations setting out their jurisdiction.  According to the Southern Weekend reporters, four of the tribunals, which review cases based on geography and subject matter, have about 70 staff (both judges and support staff), while one has about 50 staff and reviews cases only on a subject matter basis. According to Southern Weekend, there is some flexibility in the jurisdiction of the criminal tribunals.(See this report for a translation of Southern Weekend’s chart.)

Institutionalizing legal representation in death penalty reviews

The Southern Weekend article reported that a senior member of the one of the criminal tribunals had revealed that the Court has drafted regulations on institutionalizing legal representation in death penalty review and it is hoped that they will be issued before year end.  According to the article, the draft regulations are entitled:

死刑复核案件听取辩护律师意见的若干规定 (Regulations on Considering the Views of Defense Lawyers in Death Penalty Review Cases).

This reform was flagged in Article 240 of the 2012 Criminal Procedure Law:

When the Supreme People’s Court reviews a death case, it should examine the defendant; if the defense attorney requests, it should hear the opinion of the defense attorney.

Article 42 of the 2012 Supreme People’s Court interpretation of the Criminal Procedure Law provides:

When the SPC performs final review of a death penalty case and the defendant has not retained a defender, the legal aid organization shall be notified to appoint a lawyer to provide him a defense.

A statement of principle in an a Court interpretation does not translate immediately into systemic reform.  It is apparent from the Southern Weekend article, a 2013 article on the Court’s website, and other sources that the mechanism for doing so is being considered within the Court and that local justice bureaus are implementing regulatory changes.

In the Southern Weekend article, a Court judge pointed out what the academics and defense lawyers have been saying, that many persons sentenced to death are from the bottom of society and do not have a lawyer defending them. (It appears from this interview with the President of the Zhejiang Higher People’s Court that Zhejiang has been taking the lead in working with the justice authorities to have legal aid provided to criminal defendants.)

In an article earlier this year in the Legal Daily (organ of the Communist Party Central Political Legal Committee), Professor Liu Wenren of the Law Institute, China Academy of Social Sciences emphasized the necessity of involving lawyers in the death penalty review process.  A Chinese lawyer has established a website for death penalty review lawyers, highlighting cases where legal representation has been effective.  Jiangsu province justice department has implemented  regulations on giving defense lawyers rights in death penalty review cases.

It is unclear what provisions will be contained in these regulations, but it is hoped that they include a provision for legal aid as well as rights for lawyers to review the case file.

Changing the form of death penalty review: when will the time come for this reform?

It appears that the Court is considering changing the form of death penalty review to a hearing-centered procedure.  (Dean Zhao Bingzhi of Beijing Normal University, College of Criminal Law Science, Professor Liu Wenren, and  others have been advocating this for some years (see this in this 2012 interview with Professor Zhao in Legal Daily).) Movement on this issue can be seen from the following:

  • In June, 2013, the Court held its first hearing in a death penalty review case, reported here. In July, 2013, Legal Daily published a follow-up article in which it was suggested that more hearings will take place.
  • In 2013, the Court website published an article (written by a Jiangxi judge) on deficiencies in the death penalty review procedure, suggesting that a hearing procedure be adopted.
  • In July, 2014, the China Law Society held a training session for defense lawyers in death penalty cases, at which four of the five criminal tribunal heads spoke.

The Supreme People’s Court Observer understands these developments to be linked to the goal in the 4th Plenum Decision of bringing about a system of lifetime responsibility for case quality and a wrongful cases accountability system. Going to a hearing procedure for death penalty review cases in which defendants have legal representation would go far to “complete effective guards against unjust, false and wrongfully decided cases” and at the same time would better protect the hundreds of Court judges who will bear lifetime responsibility for their decisions in death penalty cases.

If there are errors in the above analysis, please use the comment function.

Those further interested in this important topic can refer to one or more of the many articles, books, and reports in English (and Chinese).  In contrast to the early 90’s, death penalty review in China has now attracted the attention of major scholars and international organizations.