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Penal system in China

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The penal system in China is mostly composed of an administrative detention system and a judicial incarceration system. As of mid 2015, it is reported prisoners held in prisons managed by Ministry of Justice is 1,649,804, result in a population rate of 118 per 100,000. Detainees in Ministry of Public Security facilities is 650,000 as of 2009, which combined would result in a population rate of 164 per 100,000. China also retained the use of death penalty with the approval right reserved to the Supreme People's Court, and have a system of death penalty with reprieve where the sentence is suspended unless the convicted commit another major crime within two years while detained. There are discussion urging increased use of community correction, and debate are ongoing to have Ministry of Justice oversee administrative detainees as well to prevent police from having too much power.

Population

Further information: List of countries by incarceration rate

Prisons managed by Ministry of Justice held 1,649,804 prisoners at mid-2015, result in a population rate of 118 per 100,000. Adding the number of detainees in Ministry of Public Security's detention centers of 650,000 reported at 2009, would result a total population of 2,300,000, and raise the rate to 164 per 100,000.[1] In the same report, It is noted that female prisoners account for about 6.5%, juvenile for 0.8% and foreigners for 0.4% of the total prisoners population in Ministry of Justice's facilities.[1]

Investigative detentions

Further information: Law enforcement in China

Public security departments, People's Procuratorates, People's Courts and Supervisory Commissions can issue detention order, and the detainees are usually held in facilities managed by public security departments, though supervisory commissions usually take care of their own detainees. State security department have similar rights and functions as public security departments.

Delegates of the congress or local people's congress above county-level during their term are exempt from detention or criminal prosecution without prior approval from the standing committee of the corresponding legislature.

Administrative

Public Security officers can summon civilian for investigative purposes, and can use force when the civilian refuse to cooperate and when approved by a superior officer. Public Security Administration Punishment Law states police should not question citizen on grounds authorized exceed eight hours, unless the citizen has violation that could result in administrative detention, in which case, the questioning could be extended to 24 hours. Criminal Procedure Law states the police should not question someone for more than twelve hours, unless that someone is a major suspect of a crime, in which case it could be extended to twenty four hours.[2]

If the police found enough evidence for a crime, they can submit it to a procurator and ask permission for arrest, or if there is limited evidence or considered misdemeanor, they can impose administrative detention for up to fourteen days.[2]

State Security officers have similar rights and authorities as Public Security officers.[2]

Procuratorial

The procuratorates can approve arrest when there is a reasonable ground with requests from the police or sometimes on their own for public-servants-related crimes they investigate (which function has since been absorbed by Supervisory Commissions), after which the suspect is placed into Criminal (investigative) detention, which can last for two months, and with approval from superior office, can be extended to seven months.[2]

Judicial

The people's courts can summon citizens and with approval from its Chief Judge, detain those who disrupt judicial process or refuse to cooperate. Judicial detention be as long as fourteen days, usually under facilities of public security departments. It is authorized on different grounds in Criminal Procedure Law, Civil Procedure Law and Administrative Procedure Law.

Supervisory

The supervisory commissions (established in March 2018) can detain civil servants and politicians who are suspected of corruption when they have reasonable amount of evidence. Detentions must be approved by a superior commission or the national commission.[3]Political detention, or Liuzhi, can be applied for up to three month, which can be extended once for up to three month when approved from a superior commission. Civil servants detained are not always allowed to see anyone, including their lawyer. This is authorized under Supervision Law.

Penalties

Administrative

The public security and state security departments are the two departments under the administrative branch that can limit one's freedom. For violation o Administration Penalty Law, the police can impose penalties on their own, though those detained can file administrative review to its supervising department or file administrative lawsuit to a court.[4]

Administrative detention for misdemeanors outlined in Administrative Penalty Law for up to fifteen days or twenty days for multiple misdemeanors. Teenager of sixteen years old or less and women who are pregnant or feeding an infant less than one years old are exempt. Teenager aged sixteen to eighteen are exempt from their first misdemeanor.[4]

Compulsory rehabilitation may be imposed on drug addicts who refuse or failed community rehabilitation or who began to reuse after previous community rehabilitation for a duration of two years ordinarily. Public security organ issue the order for compulsory rehabilitation. Rehabilitation centers are often run by the public security organs and, in some places, judicial administrative organs. There are concerns if this gives the public security organ too much power with little or no oversight. The effectiveness of compulsory rehabilitation is also questioned, and it is more often seen as a deterrence than rehabilitation.[5]

Judicial

For those who are prosecuted and found guilty, the court may sentence them to following penalties that limit one's freedom in accordance with the law:

Public surveillance or Guanzhi (literally, Control) requires no jail time, and the convicted can return to his community immediately but must report their activities to the local police department or judicial administrative department regularly for the duration designated by the court from a minimum three months to a maximum two years, and with multiple crimes combined sentencing can reach three years. Guanzhi also require one's freedom of speech, association, publishing, protest etc. be limited unless approved by the designated reporting agency, though one can still vote and hold public offices. For those under Guanzhi, right to equal pay at work is protected by law.[6]

Criminal detention or Juyi range from one month to six months in a place near one's residence, overseen by the local police department and the convicted is allowed return home one or two days per month. They may need to work while detained and will receive some pay.[6]

Fixed-term imprisonment will range from six months to fifteen years, or when guilty of multiple crimes, the maximum will be twenty years or the combined sentenced time, whichever is less. If reduced from death penalty, the term will be twenty five years. If reduced from life imprisonment, the term will be twenty years.[6]

Life imprisonment can almost always be reduced to fixed-term, though total time served must be no less than ten years. Life without parole was enacted into the Criminal Law on Dec 11, 2015, is applicable to those convicted with embezzlement.[6]

Death penalty with two years reprieve will be commuted to life imprisonment if the convicted did not commit another serious crime within the two year period or fixed-term imprisonment if the convicted helped solve a major crime or contributed the society greatly. Death penalty with reprieve, without parole can be automatically reduced to life without parole if another crime is not committed within the two year period, from which point the sentence can no longer be commuted.[6]

Death penalty with immediate execution must be approved by the Supreme People's Court. Death penalty is not applicable to pregnant women, minors, and in most cases seniors more than seventy years old. If a women is found pregnant anytime while detained or incarcerated before execution even if she miscarried, the execution will be cancelled, and the sentence reverted, and the court must redetermine appropriate sentence.[6]

If sentenced to imprisonment of any kind, pre-trial time detained will be deducted from the actual time needed to serve, and for those sentenced to public surveillance, one day detained will be count as two days served.[6]

Administration

Prisons are managed by prison administration of local departments of justice, and detention centers are managed by police departments. For those sentenced to administrative or criminal detention, the holding cells are administrated by local police department. For those sentenced to fixed term or life imprisonment or death penalty, they are admitted into prisons managed by local prison administration overseen by Prison Administration Beaureu of Ministry of Justice.

Detention center

Detention centers are managed by local public security department, overseen by Ministry of Public Security (MPS), the condition of those detention centers varies as there are no clear law on its operation but only internal regulations made by MPS and provincial department of public security.

Administrative Detention Center or Juliu Suo, literally "detain and stay facility", is used for administrative or judicial detention for usually less than fifteen days. It is usually located within a public security station and guarded by the police. The detained are usually released within fifteen days.[7][8]

General Detention Center or Kanshou Suo, literally "watch and guard facility", is used for suspect of an ongoing criminal investigation as authorized by procurators or criminal detention as sentenced by court. Fixed-term imprisonment with less than three months of actual sentence at the time of the verdict is also served here. The perimeter of these facilities are watched by the People's Armed Police (PAP), but administrated by the public security department.[9][10]

Those who are punished or sentenced for a short time are not required to do labour, but those who are sentenced for a long time may need to.[11]

Sometimes these detention centers are located in the same place or closely together, with certain degree of separation.

Prison

Prisons are usually large in size and are supervised by Bureau of Prison Administration under the Ministry of Justice in accordance of the Prison Law. The only exception is Qincheng Prison, which is managed by Ministry of Public Security and is reported to have held high profile convicts. Prisons are headed by a warden and few deputies, with a team of police. The administrators of the prison are People's Police. The perimeter of these facilities are watched by People's Armed Police. A Procurator's Office supervise the prisons that falls under its jurisdiction, who are to ensure the rights of the prisoners and the lawful operation of the prison. The Prisons are reportedly to have better living condition than detention centers operated by the public security station depending on the location.[12]Female prisoners and juvenile offenders are held in separate facilities other than male adult prisoners.[12]

Adult

The prisoner shall do labour and receive compensation.[12]It was reported that most prisons uses a point-based system, where the prisoners who passed their line will receive extra compensation based on the extra points they have. The judge for commutation trial will also consider labour record as evidence for good behavior. The prison shall have classroom and reading room, and the prisoners shall receive education.[12] The prisoner shall receive promptly medical treatment. Prison shall be equipped with an infirmary. The prisons use a point-based system to evaluate the behavior of the prisoners.[13]

Female prisoners are held in separate facilities where they will be watched by female officers, male officers are generally not allowed in these facilities and when they must need to meet with prisoner for official purposes, they must be accompanied by a female officer.[12]

Juvenile

As stipulated by law, those who are sentenced and below the age of eighteen will be sent to juvenile facilities, and for those who reach the age of eighteen while detained, if their remaining sentence is less than two years, they will not be transferred. [12]

Community correction

Since the debut of Community Correction Bill in 2016, discussion have heated. Though various ways of community correction had long been teased since 2003 and is part of the Eighth Amendment of the Criminal Law in 2011, practice varied as to how to implement it as there is no clear instruction. As a result, those who should be in community correction programs largely remained free, besides their monthly reporting duty to the police station. And because of that, community correction is rarely granted to prisoners applied other than for medical reasons. The legislation on community correction is expected to increase the use of such measures and as a result reduce prisoner population and combat recidivism by better acclimatize prisoners to the society.[14][15][16][17][18]

Commutation

Commutation is offered to prisoners with good behavior, and should the administration of the prisons apply for commutation or parole, the intermediate court of whose jurisdiction the prison falls in, will open trial to decide on commutations and paroles based on material provided and based on testimonies of the prisoners themselves, the guard and the cellmates. The procuratorate of the same jurisdiction will send representative in these trials. For those who are sentenced to life or death penalty with reprieve, the commutations and paroles of theirs will be heard at the high court of corresponding jurisdiction.[19]

Pardon

The Constitution grants power to Standing Committee of National People's Congress to decide on a pardon, and the President to sign and release it. On August 28, 2015, President Xi signed the pardon order which result in the release of over thirty thousands prisoners, most of whom have participated in the War of Resistance or the Communist Revolution. This is the eighth time of such pardon, and first time after Mao's decease and of this scale.[20][21][22]

See also

References

  1. ^ a b "China | World Prison Brief". www.prisonstudies.org. Retrieved 2019-06-01.
  2. ^ a b c d "Criminal Procedure Law of the People's Republic of China | Congressional-Executive Commission on China". www.cecc.gov. Retrieved 2019-05-31.
  3. ^ "Supervision Law of the People's Republic of China". www.lawinfochina.com. Retrieved 2019-05-31.
  4. ^ a b "Administrative Penalty Law of the People's Republic of China | Congressional-Executive Commission on China". www.cecc.gov. Retrieved 2019-05-31.
  5. ^ "Narcotics Control Law of the People's Republic of China". www.lawinfochina.com. Retrieved 2019-05-31.
  6. ^ a b c d e f g National People's Congress. Criminal Law of the People's Republic of China  – via Wikisource.
  7. ^ "拘留所条例 - 维基文库，自由的图书馆". zh.wikisource.org. Retrieved 2019-06-01.
  8. ^ "拘留所条例实施办法 - 维基文库，自由的图书馆". zh.wikisource.org. Retrieved 2019-06-01.
  9. ^ "中华人民共和国看守所条例 - 维基文库，自由的图书馆". zh.wikisource.org. Retrieved 2019-06-01.
  10. ^ "中华人民共和国看守所条例实施办法 - 维基文库，自由的图书馆". zh.wikisource.org. Retrieved 2019-06-01.
  11. ^ "看守所在押人员行为规范 - 维基文库，自由的图书馆". zh.wikisource.org. Retrieved 2019-06-01.
  12. ^ a b c d e f "Prison Law of the People's Republic of China". www.lawinfochina.com. Retrieved 2019-05-31.
  13. ^ "Figure 2.6. Extra years of life expectancy have been largely in good health". dx.doi.org. Retrieved 2019-06-02.
  14. ^ "《社区矫正法（征求意见稿）》专家咨询会在京召开". www.moj.gov.cn. Retrieved 2019-06-01.
  15. ^ "社区矫正机构的定性、设置与发展构想". www.moj.gov.cn. Retrieved 2019-06-01.
  16. ^ "社区矫正中需构建"矫正中止"制度_正义网". www.jcrb.com. Retrieved 2019-06-01.
  17. ^ "我国社区矫正立法的隐忧-北大法宝V6官网". www.pkulaw.com. Retrieved 2019-06-01.
  18. ^ "司法部负责同志就《最高人民法院最高人民检察院公安部司法部关于进一步加强社区矫正工作衔接配合管理的意见》答记者问". www.zjsjy.gov.cn. Retrieved 2019-06-01.
  19. ^ "监狱减刑潜规则:上上下下都要打点 多则一两万". finance.sina.com.cn. Retrieved 2019-06-02.
  20. ^ Chin, Josh (2015-08-25). "Echoes of Mao as China's Xi Prepares to Pardon Prisoners". WSJ. Retrieved 2019-05-31.
  21. ^ "2015特赦决定草案解读_中国人大网". www.npc.gov.cn. Retrieved 2019-05-31.
  22. ^ "习近平签署主席特赦令 对四类服刑罪犯实行特赦-新华网". www.xinhuanet.com. Retrieved 2019-05-31.

Bibliography

  • Essays on Jurisprudence of Prison Administration (监狱法学论丛) by Jurisprudence of Prison Administration Council of Chinese Association of Jurisprudence (中国法学会监狱法学研究会), Jurisprudence of Prison Administration Professional Committee of Chinese Association of Prison Management (监狱法学专业委员会) (2016)
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