June 2024

Volume 1, Number 1

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“Balancing Leniency and Severity” in China: The Historical, Substantive and Methodological Reflections

Yiwei Xia

Southwestern University of Finance and Economics

Yan (Ian) Zhang

University of Macau

 

The “Balancing Leniency and Severity” (BLS) policy in China is a criminal justice policy that aims to balance the application of lenient or severe punishment. This policy is seen as a counter to the “Strike Hard” policy, which encourages severe punishment for a wide range of serious crimes. The BLS policy is centered around the limited application of harsh punishment (e.g., the death penalty) to all but the most egregious criminals. Rhetorically, this new criminal policy is characterized as an exemplar of how politics worked in the Hu Jintao era in altering the way crimes are addressed in the justice system. It represents a shift in the implementation of the Chinese criminal law and is considered a significant development in the politics of punishment in this socialist regime.

Entering the 21st century, China witnessed a surge in organized requests to the government, manifesting itself as the form of protest, demonstration, picketing, and group petitioning (L. Li & O’Brien, 2006). Labelled as mass incidents, these organized activities primarily stemmed from dissatisfaction within the underclass regarding economic inequalities and grievances against the central authorities in Beijing (Fu & Cullen, 2011). Police reports indicate that mass incidents rose significantly, from 8,700 in 1993 to 32,000 in 1999  (Tanner, 2004). The numbers continued to escalate, reaching 74,000 in 2004 and 87,000 in 2005 (Lum, 2006). During the first half of 2005, 341 mass incidents occurred in 92 cities, with some involving over 10,000 protesters. Tragically, these incidents led to the loss of lives during physical confrontations, including 55 police officers and 102 citizens (Mainland Affairs Council, 2005). Social stability has become a priority social-political goal of the Chinese government, which perceives social unrest as a threat to the state’s economic development agenda and, consequently, the party-state’s political regime (E. Li, 2018; Trevaskes et al., 2014).

In 2003, Zhou Yongkang, the then minister of the Ministry of Public Security, emphasized at the National Meeting of Developing Socialist Legal Education that “public security organs ought to promote the realization of justice and fairness in society.” He insinuated that “Strike-Hard” justice should be employed selectively as a special approach to addressing crime issues at special times. During the same meeting, Ma Zhenchun, chief of the Beijing Public Security Bureau, criticized the “Strike-Hard” campaign, asserting that it undermined social stability and adversely affected grassroots-level crime policing. In late 2004, Luo Gan, then head of the Chinese People’s Congress Political-Legal Committee, introduced the principle of BLS as a major tenet of criminal justice. At the National Meeting of Political-Legal Work in 2005, Luo specified that all political-legal organs ought to adopt the BLS doctrine as a fundamental strategy for cracking down on crime. Under this doctrine, the “Strike-Hard” campaign would continue to target severe crimes, while relatively lenient punishments would be strategically applied to minor cases.

In October 2006, the Chinese government enacted the Resolution of the CPC Central Committee on Major Issues Concerning the Building of a Socialist Harmonious Society (referred to as the “Resolution” or “中共中央关于构建社会主义和谐社会若干重大问题的决定”). Former President Hu Jintao introduced the political doctrine of “Constructing a Harmonious Society.” According to Hu, creating a harmonious society involves pursuing a vision where society is characterized by being “democratic and ruled by law, fair and just, trustworthy and fraternal, full of vitality, stable and orderly, and maintains harmony between humans and nature.” Observers note that the motivation behind constructing a harmonious society largely stems from addressing the growing discontent among Chinese citizens. This discontent arises from social inequities and unrest accompanying China’s rapid economic development. For Hu and his leadership team, establishing a harmonious society is a deliberate process aimed at achieving social stability, which, in turn, serves as a foundation for pursuing economic prosperity and political stability (Chan, 2010).

In 2010, the Chinese Supreme People’s Court finally introduced the “Opinion on Implementing the Crime Policy of Balancing Leniency and Severity”. The policy categorizes crimes into two broad categories: those warranting severe punishment and those that may be treated with leniency. Crimes posing a serious threat to state authority or public order, including those endangering national security, crimes by terrorist groups, crimes orchestrated by superstitious sects, crimes by mafia-style organized crime groups, crimes by criminal gangs, and individual crimes gravely jeopardizing public safety (such as spreading poisons in dams), fall under the “Severe” category. On the other hand, the “Lenient” category includes cases where the criminal circumstances are minor, the social impact of the crime is relatively minor, or cases where the criminal offense is severe but mitigating circumstances apply. It also includes cases where the degree of malicious intent is minor and the defendant is unlikely to pose a danger to society (Article 14 of the “Opinion”). Article 25 of the Opinion explains that “balancing” refers to the comprehensive application of different sentences to different crimes and criminals. This could mean applying relatively harsher penalties in some minor cases and relatively lighter penalties in some serious cases. The “balancing” determines an individual case based on its unique circumstances (Trevaskes, 2010). For instance, Article 23 of the Opinion states that offenders’ active compensation, confession, and repentance can be the legal grounds for sentencing reduction. Moreover, in cases of crimes caused by family, marriage, or other civil disputes, the forgiveness of victims and their family members is a mitigating factor of sentencing.

The BLS is a fundamental principle of the Chinese criminal justice system, and it has a unique historical continuity and discontinuity. On the one hand, the policy has deeply incorporated the principles of Maoist utilitarian dialectics. These principles distinctly differentiate the treatment between “friends’ and “enemies”. Serious offenders are considered ‘enemies’ threatening social and political stability, and hence subjected to severe punishment. Conversely, minor offenders are regarded as ‘friends’ receiving lenient treatment, including education and persuasion. On the other hand, the political agenda of “Harmonious Society” under the Hu-Wen leadership is no longer a forcing political motivation in China today, not least because the political atmosphere under the current leadership (Xi Jinping) has radically shifted from its predecessors. This lends itself to some important questions – how do we distinguish and measure the historical continuity and discontinuity embedded in the “Balancing Leniency and Severity”? Which research methodologies are most appropriate for the analytical purpose? What information and data can we rely on to conduct the investigation?

To start with, there have been so far 12 Amendments to the Chinese Criminal Law (CCL). Each Amendment has, more or less, modified the elements of existing criminal offenses, with some Amendments either adding or removing specific crimes. Researchers may code each Amendment as per the following information: (1) the addition or removal of criminal offenses, including which offenses were added or deleted, and the corresponding type of such offenses according to, for instance, the sub-categories of the CCL (刑法分则); (2) modifications to the sentencing of existing offenses. For example, in the Twelfth Amendment, the base penalty for bribery was changed from “a fixed-term imprisonment of no more than five years or criminal detention, plus a fine” to “a fixed-term imprisonment of no more than three years or criminal detention, plus a fine”, which amounts to a sentence reduction; (3) modifications to the composition of existing criminal offenses. Specifically, this part may be explored from the following perspectives in light of the traditional Chinese criminal law theory: (i) expansion or narrowing of the scope of the subject of a crime (犯罪主体)— for instance, the latest Twelfth Amendment extends the subject of the crime involving “illegal business operations” from “directors and managers of state-owned companies” to “directors, supervisors, and senior management personnel of state-owned companies”; (ii) Expansion or narrowing of the scope of the subjective elements of a crime (犯罪主观要件). For example, the Eleventh Amendment removes “knowingly” from the mens rea of the offence of money laundering, which can be seen as lowering the threshold for the subjective elements of this particular offence; (iii) Expansion or narrowing of the object of a crime (犯罪客体)— for instance, the Eleven Amendment purposefully deletes the definition of trade secrets in the section regulating the crime of violating trade secrets, which allows the object of the crime of violating trade secrets to be more broadly defined; (iv) Expansion or narrowing of the objective elements of a crime (犯罪客观要件), such as the nature of the offending, the result of the offending, the time of the offending, the place of the offending, the method of the offending, etc. For instance, the Twelfth Amendment specifies several additional aggravating circumstances of bribery, which can be viewed as amplifying the purview of the objective element of bribery.

Once this coding is completed, it is then possible to analyze the continuity and discontinuity of the BLS policy. If the policy continues, the Amendments will not show a monotonic increase in changes but will instead display more mixed alterations. For instance, it is likely to observe that while new crimes are added into the CCL, the level of sentencing for old crimes is lessened. Alternatively, it is likely to discover the scope of the subject of a crime being expanded whereas the scope of the object of a crime is shrunken. Of course, it is also possible to construct an index to reflect variations in those dimensions, thereby examining the policy in a more holistic fashion. When undertaking the analysis, it is also suggested that the Amendments be aggregated into several stages, as the twelve Amendments have spanned from 1999 to 2024.

Secondly, there are changes in judicial interpretation.[1] Even if certain criminal offenses have not undergone legislative changes, judicial interpretations can indeed provide a new avenue for examining the shifts in criminal policy. This is because procuratorates and courts in China are mandated to adhere to interpretations issued by the Supreme People’s Procuratorate and the Supreme People’s Court when performing their legal duties. When encoding judicial interpretations, the same coding method introduced above can be utilized, though judicial interpretations do not, typically, involve changes in sentencing/addition or removal of criminal offenses. Furthermore, if there is only a single judicial interpretation for a particular offense, it would be impossible to observe changes; therefore, analysis of judicial interpretations may revolve around cases where the same offense has been interpreted multiple times. Again, once judicial interpretations are coded, the same methodology can be used to analyze and discuss the continuity/discontinuity of the BLS policy.

Thirdly, penalty is also a variable. Legislation and judicial interpretations are conducive to the discussion at the de jure level about changes in criminal policy; however, it is also necessary to observe the actual enforcement effects of criminal policy at the de facto level. While researchers might consider crime rates as material for discussing criminal policy, crime rates can be influenced by a range of factors, including changes in actual crime, citizens’ willingness to report crimes, and police discretion in recording cases (Xu, 2018). Therefore, unless other influencing factors can be effectively controlled, crime rates do not directly reflect changes in criminal policy.

In contrast to crime rates, analyzing penalty changes might provide more direct materials. Particularly, researchers could measure changes in criminal policy by using the following indicators: (1) the length of average custodial sentences, (2) types of penalties, and (3) the application of probation. If the BLS policy continues, it should generally be observable that severe crimes (重罪) have longer sentences, severe punishment, and less frequent application of probation. Conversely, minor crimes (轻罪) would show the opposite trend. If this policy is not consistent, it is likely that the average penalties for different crimes may not show significant changes or may run contrary to expectations.

Penalties are influenced by many factors. Sentencing individuals convicted of theft, for example, apart from the amount and method involved in the offending, is influenced by a series of statutory factors such as confession and guilty plea. To exclude the impact of these statutory factors, the following two strategies can be employed. First, using regression models to estimate changes in penalties after controlling for these statutory factors. This strategy treats the “residuals” as the influence of criminal policy. However, the residuals in the model may not only contain variations in criminal policy but also the impact of other non-statutory factors. Thus, when using regression models, it is suggested that non-statutory variables be controlled if possible. Second, besides affecting the level of penalties themselves, criminal policy might also impact the coefficients of statutory circumstances. For instance, the variation of the coefficient of the confession on the sentence length at different periods might also serve as an indicator of the variation in criminal policy. The BLS policy is likely manifested by a greater effect of mitigating or aggravating circumstances.

Finally, changes in the penalties for specific offenses can also be discussed. If the BLS policy continues, an increase in the variance of sentence length for individual offenses is worth observing. This is because if harsher penalties are applied to more serious crimes and lighter ones to less serious offenses, the dispersion of penalties would increase, thus resulting in a greater variance. Additionally, as mentioned earlier, researchers can also examine whether the effects of specific circumstances have significantly increased. If so, these can also be considered signs of the continuity of the BLS policy. Regression models can also be used to observe whether the coefficients of statutory circumstances show significant differences across different periods.

 

Footnotes

[1] Judicial interpretations from the Supreme People’s Court and the Supreme People’s Procuratorate can be found on the website: https://flk.npc.gov.cn/list.html?sort=true&type=sfjs&fgxlwj=0602 .

 

References