China Power | Politics | East Asia

The Vagaries of Crime and Punishment in China

As the crackdown against dissidents continues, we still don’t know how Beijing decides the victims, timing, and type of detention.

By Jerome A. Cohen for
The Vagaries of Crime and Punishment in China
Credit: Illustration by Catherine Putz

This week saw the detention in China of Geng Xiaonan, a well-known Beijing publisher and outspoken supporter of the famously harassed  former Tsinghua University law professor Xu Zhangrun. Geng is reportedly destined for “very heavy” punishment, not the 15 day maximum in an unpleasant detention cell usually imposed for minor offenses not deemed sufficiently grave to constitute a “crime.” The initial “illegal activity” charge against her is vague enough to cover either her publishing business alone or her open support for Xu or, very likely, both. How long her husband, detained with her, will be held will depend on how important his interrogation seems to her case.

The ongoing repression of mainland Chinese protesters against injustice continues to raise many questions about the Communist Party’s punishment systems. Who gets detained? When? After what kinds of warnings and preliminary “education”? What type of detention is chosen and why? When, for example, does the Party select, for up to six months, the widely-feared incommunicado detention by a government “supervisory commission,” initially preempting not only the formal criminal process but the entire justice system?

When is the minor offenses law invoked, as recently in the case of Xu, who was detained for five days for supposedly “soliciting prostitution”? What determines whether someone originally detained by a “supervisory commission” or by police for a minor offense will subsequently be transferred to the formal criminal process for investigation of a “crime”? If the criminal process is selected, what determines whether the suspect will first be sent for investigation to the notorious special “residential surveillance at a designated location” (RSDL) because of ostensible suspicion that “national security” might be involved? What determines whether, when, and why the suspect will eventually be forwarded from RSDL to the regular criminal process for up to an additional 37 days of more conventional detention before a procurator (prosecutor) has to decide whether to approve formal “arrest” leading to months of further detention prior to indictment and eventual trial, conviction, and sentence?

At what point after “arrest” or indictment will the detainee finally have access to a lawyer and to what extent will this access be meaningful? Will the detainee’s family be allowed to retain the lawyer or, as often occurs, will the government only cooperate with lawyers whom it approves? What does “trial” amount to in such cases? In what circumstances and to what extent is a trial open to the public? What are the procedures for introducing evidence and the criteria for deciding guilt and sentencing? To what extent is the accused actually permitted to exercise the prescribed right to appeal conviction? What does “appeal” amount to? Who makes these judicial-type decisions and via what kinds of actual, not merely legislated, procedures? What roles does the Party apparatus play at various stages?

Who determines when and under what conditions the convicted person should be released? Why and how are many released convicts or suspects disappeared or at least visibly silenced (what I call the “non-release release” or NRR), while a few are allowed limited activity? What is the scope in practice of a criminal sentence to not only imprisonment but also post-imprisonment “deprivation of political rights,” which sounds misleadingly innocuous, especially in a dictatorship?

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For all types of detention, there are, of course, the usual concerns about the conditions of either solitary or group confinement, oppressive interrogation, mental and physical torture, and coerced confessions. And what about the consequences of all this for one’s spouse, children, other family and close associates?

There is so much that we and even most Chinese still don’t know, because the Party will not allow us to know. Xu, although only recently released from brief administrative punishment, seems resigned to soon being subjected to the seemingly endless nightmare of the formal criminal process. I wish he had not decided to return to China after medical treatment in Japan.

Also highlighted this week are the efforts of families of the “Hong Kong 12,” the activists detained by the Chinese government on August 23 while attempting to flee to Taiwan, to provide the suspects with lawyers. Their frustration is typical of the experience faced by many in encounters with the Chinese criminal justice system. The police don’t want to allow detainees access to lawyers until the prosecution’s case, including interrogations and investigation, is in satisfactory shape. Even then, the accused may only be allowed a single meeting with a lawyer after prosecutors have approved an indictment. That meeting, if one takes place at all, may be brief and restricted and, as in many politically sensitive cases, the lawyer is often not one selected by family or friends who is likely to attempt to act independently, but one appointed by the government who will follow government and Party orders and merely decorate court proceedings. In these circumstances, the accused sometimes rejects the appointed lawyer or at least tries to do so. Note also that some mainland Chinese lawyers retained by the Hong Kong families have reportedly been warned to drop the case. If they persist, they risk refusal to renew their annual license to practice, permanent disbarment, closing of their entire law firm, and even criminal punishment for themselves.

The processing of the “Hong Kong 12” case will vividly illustrate contemporary Chinese criminal justice to the people of Hong Kong and the world, but only to the extent Beijing permits transparency. Unless, of course, Party propagandists belatedly persuade Party leaders to seize the opportunity to give us a better view of the Chinese system than really exists – so far, however, so bad. The little that has been reluctantly disclosed suggests uncertainty on the part of the regime as to whether to prosecute the detainees for the very serious crime of “attempting to separate Hong Kong from China” or the more mundane “illegal border crossing.”

Unfortunately, I do not believe that the two suspects holding British National Overseas passports can expect U.K. consular visits; however, I assume the one Portuguese national who is detained will be allowed a visit within a few weeks, after at least some preliminary determination has been made about the details of where and how the accusations will be prosecuted. That consular visit is likely to be restricted in its content. Nevertheless, the visiting diplomat can inquire about the suspect’s health and treatment, although an honest answer may not be possible, and can look for visible evidence of torture, rarely evident if such visits are allowed.

Although I usually criticize U.S. Secretary of State Mike Pompeo’s efforts to mobilize all-out political warfare against China (as opposed to a nuanced response to the challenges), I am glad to see him draw attention to the Chinese criminal process through a recent article and tweet. Of course, even if Beijing were to assassinate all of the “Hong Kong 12” through “death by a thousand slices” or some other horrific, long-banned torture, China would immediately censure their families and all who protest, including foreign governments and international organizations, for “interfering in China’s internal affairs,” and Hong Kong Chief Executive Carrie Lam would assure us that the case had been dealt with in accordance with Chinese judicial procedures.

Yet, as China’s criminal justice again takes center stage, universal condemnation of China’s unfair punishment systems may be the only credible defense available to Geng, Xu, the hapless “Hong Kong 12,” and millions of others, including those detained in China’s Xinjiang, Tibetan, and Mongolian regions.

Jerome A. Cohen is Faculty Director Emeritus of New York University’s U.S.-Asia Law Institute and Adjunct Senior Fellow at the Council on Foreign Relations.