13 January 2012

More on Heavy Punishment and the Ongoing Crackdown

In my last post, I argued that the most important factor behind the heavy sentences recently handed down in China for "inciting subversion" is not the authorities' crackdown against dissent but, rather, the fact that the individuals who were being punished all had prior convictions for inciting subversion.

I later had a brief exchange on Twitter with someone I know to be knowledgeable about cases like these and the legal issues involved. His comments have led me to a partial rethink of how the sentencing works in cases like this. In this post, I want to look briefly at the example of Chen Wei, whose verdict has been made public by Chinese Human Rights Defenders.

Chinese verdicts are not necessarily a good record of everything that goes into determining a sentence, especially in political cases like these. But one can usually find an outline of the basic legal reasoning used by the court to determine the length of the sentence.

First, though, a word about sentencing for the offense of "inciting subversion." Fixed-term imprisonment for this offense can range anywhere from six months to 15 years, depending on the severity. According to Article 105(2) of the Criminal Law of the PRC, the only guideline is that ordinary offenses should be punished by up to five years in prison, whereas if the crime is "very serious," a sentence of no less than five years is indicated.

There are thus two levels of sentencing for "inciting subversion": from six months to five years for "ordinary" offenses and from five to 15 years for "very serious" offenses. I would argue that in practice there are actually three levels, with the "very serious" level divided in half at 10 years. As far as I know, Liu Xiaobo is the only person who has been sentenced to more than 10 years for inciting subversion since that offense became part of China's criminal code in 1997. I therefore see that upper range as territory "reserved" for those who are considered to be the "worst of the worst."

Towards the end of Chen Wei's verdict, the court explains how it reached its determination of how to sentence Chen. First:

The articles published on the Internet by Chen Wei were numerous, strongly inciting in nature, and the scope of their influence was large; [therefore], his crimes were very serious.
The evidence for this finding is a mixture of subjective and objective factors. The assessment of the "inciting nature" of the articles is based on a reading of the texts themselves, involving the isolation of selected passages illustrating Chen's alleged intent to incite overthrow of the political order. The objective factors are cited earlier in the verdict:
截止2011年2月25日,陈卫在“民主中国”、“中国人权”、“议报”等网站上发表的11篇文章,共计网页链接37个,点击数8 524次。

As of 25 February 2011, the 11 articles Chen Wei posted on websites such as "Democratic China," "Human Rights in China," and "ChinaEWeekly" had links to 37 websites and a total of 8,524 hits.
This evidence is intended to support the prosecution's charge in the indictment that:

The articles published [by Chen Wei] were widely linked to, reposted, and read, [resulting in/causing an] extremely bad impact.
I am not aware of the existence in China of any objective standard upon which to judge the impact of views expressed on the Internet, though I suspect that there may be some internal regulations on this since this kind of evidence has been showing up in verdicts for "inciting subversion" since at least the trial of Hu Jia in 2008.

In any case, the court makes clear that the alleged impact of Chen Wei's writings pushed him into the "very serious" sentencing range, meaning that a sentence of at least five years could be expected. That is where Chen's prior criminal record comes into play:

Chen Wei was previously given a criminal punishment for crimes of endangering state security and again committed a crime of endangering state security after that punishment had been served; this constitutes recidivism, and in accordance with the law punishment should be heavier.
In other words, where Chen's punishment falls within the range of five to 15 years' imprisonment is influenced by his status as a recidivist. Again, I would argue a sentence of greater than 10 years for "inciting subversion" enters territory "reserved" for only those who are deemed to be the "worst of the worst." So, Chen Wei's sentence of nine years satisfies the requirement that he be punished on the heavier end of the spectrum within the range indicated for "very serious" offenses.

Chen's lawyers argued that he shouldn't be treated as a recidivist because there is no legal basis for treating the crime of "counterrevolutionary propaganda and incitement" as an offense under the category of "endangering state security." While technically true, the categories of "counterrevolution" and "endangering state security" have been treated as interchangeable in practice ever since the Criminal Law was revised in 1997. It is therefore not surprising that the court basically ignores the argument and asserts the equivalence of the two types of offense for the purposes of Article 66.

I continue to believe that, as a practical matter, prior conviction for political offenses was a decisive factor in determining the length of punishments given last year to Liu Xianbin, Chen Wei, and Chen Xi. It is therefore misleading to compare the length of these recent sentences with the length of sentences given to first-time offenders like Hu Jia or Du Daobin and say that the difference shows evidence of a crackdown.

I will concede the possibility, even probability, of "crackdown influence" on the criteria determining what distinguishes "ordinary" from "very serious" offenses. Given that these criteria appear to be based on both subjective judgments about what constitutes "incitement" and more objective (but opaque) measures of influence, there is plenty of room for the overall political climate or direct intervention from above to influence sentencing.

But one looks, as I have, at the details of the dozens of known cases for "inciting subversion" that have been adjudicated since 1997, I think it is impossible but to conclude that history of prior convictions is one of the main determinations of where punishment falls in the sentencing spectrum.

1 comment:

  1. what is the backstory on yu jie, i wonder .. allowed to go to the usa