The Great Britain China Center (London), the Chinese Academy for Social Sciences (CASS, Beijing) and the Max Planck Institute for Foreign and International Criminal Law (Freiburg) carry out a joint comprehensive project entitled “Strengthening the Defence in Death Penalty Cases in China.” Besides training of defence lawyers, the project examines the role defence lawyers play in Chinese criminal proceedings and particularly in death penalty proceedings. It aims to single what can and should be done to empower defence councils to play an effective role in death penalty eligible cases and, more generally, to establish an effective system of legal aid. Effective defence is, in fact, a key element in fair criminal proceedings and in successfully preventing that wrongful convictions lead to the execution of innocents.

This pro­ject ex­am­ines the role of de­fence coun­cils in Chinese crim­in­al pro­ceed­ings that can end up with the im­pos­i­tion of the death pen­alty. It aims to re­view the prob­lems de­fence law­yers face in such pro­ceed­ings, the de­fence strategies they ap­ply and to ex­am­ine wheth­er the as­sign­ment of a de­fence law­yer makes a dif­fer­ence in the out­come of a crim­in­al tri­al. Moreover, the pro­ject ex­plores what can and should be done to em­power de­fence coun­cils to ef­fect­ively rep­res­ent sus­pects and ac­cused in death pen­alty eli­gible cases.

The ob­ject­ive of the study is to shed light on the prob­lems ex­per­i­enced by crim­in­al de­fence coun­cils when de­fend­ing cap­it­al crime cases and to gen­er­ate in­form­a­tion on how death pen­alty cases are pro­cessed through the Chinese sys­tem of justice as well as the de­term­in­ants of the out­comes death pen­alty eli­gible crim­in­al cases.

The study is based on (in-depth) in­ter­views with de­fence coun­cils (N=25) and on case file ana­lys­is in four loc­a­tions in China (N=322). Ran­dom sampling was not pos­sible in three of the four loc­a­tions of case file ana­lys­is, but con­veni­ence samples have been drawn.

The in­form­a­tion gained from the in­ter­views demon­strates that de­fence coun­cils ex­per­i­ence prob­lems when meet­ing with cli­ents. The ac­cess to the cli­ent is severely re­stric­ted and in par­tic­u­lar dur­ing the in­vest­ig­at­ive stage ef­fect­ive de­fence is not pos­sible, as law­yers are not al­lowed to dis­cuss the case with their cli­ents and con­ver­sa­tions are mon­itored fully by po­lice. Full ac­cess to case files is mostly not pos­sible and placed un­der re­stric­tions is­sued by the pub­lic pro­sec­utor. Pro­sec­utors also do not dis­close everything that may be rel­ev­ant for the de­fence coun­cil. In­vest­ig­a­tion by de­fence coun­cils is made dif­fi­cult by the crim­in­al­iz­a­tion risks (§306 Chinese Crim­in­al Code)and by the need of ob­tain­ing a per­mis­sion by the court to carry out in­vest­ig­a­tions on be­half of the ac­cused. Fees for de­fend­ing in a death pen­alty case are very mod­est. Ac­cord­ing to cur­rent rules and prac­tice, it is reas­on­able not to de­fend and to pay for not com­ply­ing with leg­al aid re­quire­ments (1000 yuan) than to de­fend and to re­ceive some 500 yuan from leg­al aid re­sources. Leg­al aid fees do not al­low ef­fi­cient de­fence (in terms of de­fence coun­cils en­ga­ging them­selves in in­vest­ig­a­tion).

De­fence strategies that are ap­plied con­cern mostly strategies of mit­ig­a­tion based on ar­gu­ments of the minor role the de­fend­ant played in the com­mis­sion of the crime, the re­duced men­tal ca­pa­city of the of­fend­er, the cir­cum­stances of the crime or gen­er­al mer­its of the de­fend­ant. This find­ing is cor­rob­or­ated by the case file ana­lys­is and is also con­firmed by oth­er stud­ies. It may be also as­sumed that courts some­times - in­stead of ac­quit­tal - re­spond to evid­ence prob­lems by mit­ig­at­ing the sen­tence (im­pos­ing then a sus­pen­ded death pen­alty or life im­pris­on­ment). Such re­sponses point to poor im­ple­ment­a­tion of the “in du­bio pro reo” stand­ard.

The data which have been col­lec­ted from the case files show that there is con­sid­er­able vari­ation as re­gards the sen­ten­cing out­comes in crim­in­al cases that carry the risk of cap­it­al pun­ish­ment already at the stage of the first in­stance tri­al. This points in prin­ciple to an im­port­ant role the de­fence coun­cil could play in such pro­ceed­ings. There are con­sid­er­able changes as re­gards cases where the death pen­alty has been im­posed in the first in­stance tri­al in sub­sequent phases of the pro­ceed­ings. The ques­tion of what factors are as­so­ci­ated with the vari­ation in sen­ten­cing was ex­plored in or­der to be able also to an­swer the ques­tion of what role the de­fence coun­cil might play in this pro­cess.

However, it seems that of­fence ser­i­ous­ness does not play a ma­jor role in de­term­in­ing the out­come of the sen­ten­cing phase of the tri­al. For murder cases it could be es­tab­lished that the vic­tim-of­fend­er re­la­tion­ship plays a sig­ni­fic­ant role, as stranger to stranger crimes are treated evid­ently more harshly than crimes oc­cur­ring in in­tim­ate or close re­la­tion­ships. For drug cases, it is ob­vi­ous that cases re­ceiv­ing more le­ni­ent pun­ish­ment (in terms of a sus­pen­ded death sen­tence) are those that are close to the min­im­um amounts mak­ing drug traf­fick­ing eli­gible for the death pen­alty. However, our ana­lys­is shows that oth­er factors do not con­trib­ute to ex­plain vari­ance ob­served in crim­in­al sen­ten­cing. This makes the im­ple­ment­a­tion of an ef­fect­ive de­fence strategy dif­fi­cult. The fact that of­fence ser­i­ous­ness is not re­lated to the out­come of sen­ten­cing (in se­lec­ted groups of of­fences such as murder or drug traf­fick­ing) might be also ex­plained by a lack of es­tab­lished sen­ten­cing cri­ter­ia and the im­pact of ex­tra-leg­al sen­ten­cing factors. The lat­ter could not be con­trolled for in the case file ana­lys­is. However, the in­ter­view data provide evid­ence that the ju­di­cial de­cision­mak­ing pro­cess is in­flu­enced both by in­form­al chan­nels as well as ex­tra-leg­al sen­ten­cing factors such as the “pub­lic opin­ion”.

The de­fence coun­cil is as­signed to a case rather late in crim­in­al pro­ceed­ings. In gen­er­al, as­sign­ment takes place after the de­fend­ant has con­fessed and after in­vest­ig­a­tion has been fi­nal­ized. Cap­it­al cases are pro­cessed rap­idely through the crim­in­al justice sys­tem, leav­ing not much room for un­fold­ing ef­fect­ive crim­in­al de­fence. Death pen­alty pro­ceed­ings are car­ried out at a rap­id pace. The av­er­age time law en­force­ment au­thor­it­ies and ju­di­cial or­gans need to fi­nal­ize death pen­alty cases from ar­rest up to ex­e­cu­tion of the of­fend­er points to swift and ef­fi­cient man­age­ment of case pro­cessing and pun­ish­ment. This may be ex­plained by the em­in­ent rel­ev­ance of de­terrence (both neg­at­ive and pos­it­ive) for Chi­nas´ crim­in­al justice sys­tem. It is, however, clear, that ef­fect­ive de­fence with­in this frame­work of con­di­tions can­not un­fold but is re­stric­ted ser­i­ously in par­tic­u­lar con­sid­er­ing the late in­volve­ment of a de­fence coun­cil in death pen­alty pro­ceed­ings. When com­par­ing death pen­alty pro­ceed­ings in the Peoples´ Re­pub­lic of China with those in the United States of Amer­ica, the res­ult is evid­ent. The av­er­age time a US of­fend­er sen­tenced to death spends on death row (after the sen­tence has be­come fi­nal) is ap­prox­im­ately the nine­fold of the time a death pen­alty case in China takes from ar­rest to ex­e­cu­tion.

The pro­ject is fin­an­cially sup­por­ted by the European Uni­on.