New Lubman Article: "China’s Criminal Justice Value System Makes Reform Moot"
Here's his latest piece for the WSJand as he says ...."An illuminating new piece of research demonstrates that it will take more than revising laws on paper to raise the level of legality of China’s criminal justice given the value system that underpins it."
Here's the link and intro to the site....
China’s Criminal Procedure Law is about to be revised for the first time since 1996. How the new law operates will depend on the mindset of participants in the Chinese “political-legal system” who will be required to put the law into practice. What is the likelihood that those participants—police, procurators and judges—will be able to meet the law’s requirements?
An illuminating new piece of research demonstrates that it will take more than revising laws on paper to raise the level of legality of China’s criminal justice given the value system that underpins it.
The research was published recently in the book, “Chinese Criminal Justice: An Empirical Inquiry,” by Dean Mike McConville of the faculty of law of the Chinese University of Hong Kong and five co-authors. It relies on empirical research to an extent very unusual in foreigners’ studies of Chinese criminal justice and notably addresses everyday cases, not any with political significance.
Interviews with almost 300 procurators, judges and lawyers yield concrete examples of how difficult it is to implement existing laws on criminal procedure in China.
Take, for example, prosecution incentives. Under Chinese law, prosecutors who find evidence against a defendant is insufficient are required to send the case back to the Public Security Bureau (PSB) for further review. In practice, McConville et. al find, prosecutors tend to push forward with cases even where evidence is sketchy to avoid hurting an investigator’s career advancement and salary. “Few cases are not prosecuted,” the authors quote one procurator as saying. “There is an internal regulation in the [PSB]: an investigator will have his scores reduced if his case is returned.”
The book finds similar problems with the role judges play in criminal cases. Under the Criminal Procedure Law, for example, the amount of information supplied to judges before trial is limited in order to avoid bias in favor of the prosecutors’ case. Judges’ case preparation does not include leaving the premises of the court to meet defendants or engage in gathering evidence about the case before the trial commences. However, many judges do conduct their own pre- trial investigation and examination as illustrated by one judge’s statement that he frequently questions the defendant “to learn about his views and whether his views are consistent with his confession statement.”
