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 2020, it is estimated that 1.7 million people had been incarcerated in China, which is the second-highest prison population after the United States. However, accounting the absolute prisoner numbers into China's enormous population base of 1.4 billion, the country's per-capita incarceration rate is relatively low [1] at 121 per 100,000 of the national population. [2] China also retained the use of death penalty with the approval right reserved to the Supreme People's Court, and there is a system of death penalty with reprieve where the sentence is suspended unless the convicted commits another major crime within two years while detained. There are discussion urging increased use of community correction, and debates are ongoing to have the Ministry of Justice oversee administrative detainees as well to prevent police from having too much power.

Contents

History

Penal labor was formalized in the 1950s soon after the Chinese Communist Party won the Chinese Civil War. [3]

The Prison Law of the People's Republic of China was enacted December 20, 1994. Since then the Chinese prison system has operated under supervision of the Bureau of Prison Administration which falls under the Ministry of Justice. [4]

Population

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. [5] 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. [5]

Investigative detentions

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.[ citation needed ]

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.[ citation needed ] The Chinese police and security services routinely make use of torture to obtain confessions and information from detained suspects. [6] [7] [8]

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. [9]

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. [9]

State Security officers have similar rights and authorities as Public Security officers. [9]

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. [9]

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.[ citation needed ]

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. [10] 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.[ citation needed ]

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. [11]

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. [11]

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. [12]

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. [13]

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. [13]

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. [13]

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. [13]

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. [13]

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 woman 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. [13]

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. [13]

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.[ citation needed ]

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.[ citation needed ]

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. [14] [15]

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. [16] [17]

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. [18] Good performance when working in the penal labor system can get time taken off a prisoner or detainee's sentence but conversely underperforming and failing to meet a production quota can get time added onto a sentence. [3]

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

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.[ citation needed ] 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. [19] [ failed verification ] Female prisoners and juvenile offenders are held in separate facilities other than male adult prisoners. [19] Almost all prisons in China operate within the penal labor system, some prisons have full-time sales staffs whose job it is to solicit orders from manufacturers and sub-contractors around China. Prisoners may also be contracted out to companies as cheap and obedient labor. The Chinese government does not provide enough funds to prisons and detention facilities for them to operate without generating significant revenues. [3] Prisoners in Chinese prisons are systematically abused by guards and prison authorities, [7] [6] torture is routinely used in Chinese jails both for investigative and punitive purposes. [20] [21] All prisoners including criminals, political prisoners, and prisoners of conscience face torture and other forms of violence. [22]

Adult

The prisoners are subjected to forced labor, often under harsh and violent conditions. [23] 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.[ citation needed ] The prison shall have classroom and reading room, and the prisoners shall receive education. [19] Chinese law states that prisoners shall receive promptly medical treatment and that prisons shall be equipped with an infirmary. The prisons use a point-based system to evaluate the behavior of the prisoners. [24]

According to Chinese law female prisoners are to be held in separate facilities where they will be watched by female officers, male officers are generally not allowed in these facilities and when they need to meet with a prisoner for official purposes, they must be accompanied by a female officer. [19] However it has been widely reported that the sexual abuse of prisoners by authorities is widespread in the Chinese penal system. [7] The International Society for Human Rights claims that female political prisoners are often gang raped on the orders and direction of prison authorities. [6]

Juvenile

Chinese law stipulates that 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. [19]

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. [25] [26] [27] [28] [29]

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. [30]

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. [31] [32]

See also

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