Friday, September 17, 2010

Sentencing Guidelines proposed in China

As a former Judge I appreciated the discretion we were allowed in sentencing.  Of course this was in Texas not in a country the size of China.

Legal reform takes baby steps and this one certainly seems appropriate and familiar to Western Jurisprudence.

Allowing the attorneys to "advise" and recommend to the Judge what a convicted defendant's punishment should be and then allows the Judge to review the circumstances of each case on its own is probably a welcome change.

Guidelines make sentences more transparent, standardized
By Wang Jingqiong (China Daily)

SANYA, Hainan - Judges across the country are urged to follow more specific and strict standards while meting out sentences for criminals, and listen to advice from prosecutors, lawyers and victims on the sentence, according to a guidance the top court issued on Thursday.

The guidance, to be implemented on a trial basis across the country on Oct 1, standardizes punishments and makes them more transparent. Before, the sentences were the judges' decisions, based on laws with a wide range in penalties.

The guidance gives specific basic sentences for 15 types of charges, including traffic offenses, intentional injury, robbery, theft and drug dealing. These charges take up about 90 percent of all criminal charges in the country, according to the top court.

According to the guidance, a prosecutor, as well as the defendant's lawyer, are authorized to advise the judge on a defendant's sentence.

The judge has to listen to both sides' advice or debate, and make a final decision by the following three steps, according to the guidance. <

First, after the basic sentence for the charge is established, the judge should add to the penalty according to the circumstances. Finally the judge should add or reduce the sentence taking into account 14 possible scenarios for the accused, such as if he or she is a minor.

For example, for a person who rapes a woman one time, the basic sentence is between three and five years. If the person rapes more than one woman or is a recidivist, the sentence should be increased. However, if the person confessed to the crime, the sentence can be reduced.

The guidance stipulates that if a person confesses, the sentence should be reduced by 40 percent. If one gets the victim's forgiveness, the sentence can be reduced by an additional 20 percent.

"China had no such detailed and mathematic base for discretion of punishment before," said Xiong Xuanguo, deputy chief judge of the Supreme People's Court (SPC).

Many problems existed in the discretion of punishment before, especially when the same accusation got different sentences in different courts. Also many people tried to bribe judges for less punishment, Xiong said.

The country's Criminal Law usually gives a wide range for sentencing a convicted criminal, which sometimes can result in a difference of 10 years in jail, he said.

"This is a milestone for China's legal reform," said Dai Changlin, a criminal court judge from the SPC. "To some extent, it reduces the power that judges once had in sentencing. However, we don't see it as limiting judges' rights, but standardizing and regulating sentencing."

Some judges were against the reform, arguing that giving the procurators the right to advise on the sentencing challenges the judges' authority.

"However, after we conducted experiments in more than 120 courts since last year, more judges tend to accept the new procedure now, mostly because defendants would be more convinced of their sentences," Dai said.

Lawyers welcome the new guidance as they see it as a solid base for them to ask for less punishment for their clients.

"Lawyers argued with judges on sentencing quite often, but such a practice actually lacks legal backing," said Tang Hongxin, a lawyer from the Beijing-based Yingke Law Firm.

"If this sentencing standardization is fully implemented, I can be more confident asking for light sentences for my clients," Tang said.

Chen Weidong, a law professor with Renmin University of China, said conviction and sentencing have been complicated issues for a long time in China.

"Courts usually pay more attention to convictions and ignore sentencing, but the accused and the public care more about sentencing," he said. "The new guidance might be a prelude to separate conviction and sentencing phases in trials."