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Framing the Research Project

Legal Representation and Criminal Processing in Chinese Courts: A Pilot Study in Fujian (2009-2011) (Supported by MacArthur Foundation) Phil He School of Criminology & Criminal Justice, Northeastern University 5/4/2011. Framing the Research Project

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Framing the Research Project

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  1. Legal Representation and Criminal Processing in Chinese Courts: A Pilot Study in Fujian (2009-2011) (Supported by MacArthur Foundation) Phil He School of Criminology & Criminal Justice, Northeastern University 5/4/2011

  2. Framing the Research Project • Why do we study legal representation and criminal processing in China? • Why do we focus on district level courts and criminal cases only? • Why do we conduct the pilot in Fujian? • What do we expect to learn? • Which methods should we use to achieve our research objectives? • How do we successfully implement our research plan? • What would be the logical next step after the pilot? Why?

  3. Philosophical Foundation for the Substantive Inquiry Concerning Legal Representation in Chinese Criminal Court • Human rights • Procedural justice

  4. UN: Universal Declaration of Human Rights • Europe wrestled with alignment of criminal procedural safeguards (as basic human rights) at European level • EU Charter of Fundamental Rights on Justice • Right to fair trial • Right to legal counsel • Presumption of innocence • Legality & proportionality of penalties • Right not be tried/punished twice for same offense • Such rights not widely available across Asia

  5. Right to Counsel in the U.S. • 6th Amendment, US Constitution (“in all criminal prosecutions, the accused shall…have the assistance of counsel for his defense.” • What happens when one could not afford an attorney? • Facts about Indigent defense in the U.S. (BJS, 2000 Special Report) • 66% felony defendants (in federal ct.) and 82% felony defendants (in state ct.) were represented by public defenders/assigned counsel • 90% of federal defendants and 75% state defendants were found guilty, regardless of the type of attorney used • Among those found guilty, higher % of the defendants with publicly financed counsel were sentenced to incarceration (FC-88% vs. 77%; SC-71% vs.54%) • 95% of all criminal defendants are tried in state courts

  6. Evolution of the Right to Counsel Reform in the U.S. (1853-2002) • Webb v. Baird, (1853), Indiana Supreme Court (principle of civilized society) • Powell v. Alabama (1932), US Supreme Court (all state capital cases) • Johnson v. Zerbst(1938), U.S. Supreme Court (reaffirm the right in all federal courts) • Betts v. Brady (1942), US Supreme Court (denied extending it to state felony proceedings) • Gideon v. Wainwright (1963), US Supreme Court (overruled Betts) • In re Gault (1967), US Supreme Court (children) • Argersinger v. Hamlin (1972), US Supreme Court (misdemeanor state proceedings with a potential loss of liberty) • Strickland v. Washington (1984), US Supreme Court (effective counsel) • Alabama v. Shelton (2002), US Supreme Court (counsel must be provided for the accused in order to impose a suspended prison sentence)

  7. The American Reality Re Indigent Defense • “Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice” (ABA 2004 Special Report) • Lack of adequate funding (inadequate compensation; lack of resources/state fiscal crises/resource disparity between prosecution and indigent defense) • Inadequate legal representation (competency; caseload; contact; ethics) • Structural defects (uneven service; delays in process; lack of data) • Recommendations: adequate funding; raising assigned counsel fees; increase state oversight

  8. Chinese Court Structure • Supreme People's Court (1 national) • Higher People's Court (29 provincial) • Intermediate People's Court (337 prefectural and larger cities) • District People's Court (2,902 rural counties; municipal districts; autonomous counties)

  9. The Chinese Reality • About 724,112criminal cases tried in 2007 (plus about 200,000 reeducation through labor cases rendered by the police per yr) • China had about 3,000 practicing lawyers in 1980 and about 143,967in 2007 (1.3 billion pop.); US has 1.2 million lawyer (307 million pop.) • Legal representation not mandated in criminal cases (except for capital offenses and a few other circumstances) • Estimated lawyer density ratio in China:1 per 8,867 citizens (US ratio: 1 per 281) • Over 450 law schools now (2 in 1978); Chinese Bar passage rate: 7%-14% in recent years • No law firm in 206 counties nationwide

  10. What do we know about legal representation in China today? • Availability of lawyers • Prevalence of legal representation (mixed estimates) • 2002 National estimate: 15%-30%; C city/2004: 44% (Zuo, 2007); 20% (Lu & Miethe, 2002, based on 237 theft cases from one district ct; Belkin, 2011) • How are clients represented in Chinese courts? • Lu & Miethe (2002): lack of effectiveness; do not challenge “facts” • Liang’s (2008) court observation study (54 cases from Chengdu and Beijing, including 22 criminal cases): professionalism and effectiveness varies greatly

  11. Why Fujian? • Research partner at XMU, School of Law • Alumni base and good rapport with courts • 35 million population; diverse economy; market economy experimentation; distance from Beijing • Feasibility, efficiency, training, research control, depth of inquiry • IRB Protocol • Possible experimentation and policy impact

  12. What do we expect to learn? • Benchmark the current rate of legal representation • Identify gaps and shortcomings of present system of legal representation • Ability to recommend strategies for addressing gaps • Work with Chinese partners to develop shared strategies going forward including additional research questions and recommendations for improvements to system

  13. Focus of This Afternoon’s Discussion Design and Implementation of the MacArthur-Fujian Pilot Study: The Methodological Experience

  14. Design of the Pilot Study • Purposes: benchmarking + future research + targeted reforms • Sampling: why/how? • Research questions: what/why/how? • Implementation: feasibility + adjustment • Data Analysis and Interpretation of Results • Descriptive: convergent + divergent results • Analytical: test of hypotheses • Implications for future research and policy • How well did we execute our research plan? • Benefits of: pilot study/triangulation of methods/evidence-based policy

  15. Basic Considerations on Sampling • Representativeness is a key element • Feasibility of implementation is uncertain due to lack of prior local research experience • Political Sensitivity and Possible Risks for: • Researchers • Research participants • Regional differences in accessibility and cooperation • Flexibility and adjustment are required in a pilot study (e.g., cost; training; supervision; sample size; time constraint; travel, etc.)

  16. Key Questions for Fujian Pilot Study • What is the extent of legal representation for criminal defendants in district level courts（基层法院）? • How are criminal defendants represented? • What is the dynamic of the courtroom working group (judges, prosecutors and defense attorneys)? • How are the outcomes of criminal cases really decided in these courts? • What are the prevailing perceptions of legal practitioners on criminal justice reforms?

  17. Fujian Pilot Key Hypotheses • Level of legal representation in criminal cases is low in Chinese District People’s Court • There is a difference in the use of legal representation by case types (e.g., violent crime defendants are more likely to seek legal representation) • There are variations in both the availability and quality of legal representation across regions of different economic development

  18. Fujian Pilot Key Hypotheses (cont. -a) • There are variations in both caseload and distribution of case categories across regions of different economic development • Chinese criminal lawyers have little substantive impact on sentencing outcome based on the defense they provide in court

  19. Fujian Pilot Key Hypotheses (cont.-b) • Chinese criminal lawyers focus not on acquittal but on presenting mitigating circumstances to impact the sentencing decision • Extra-legal factors (such as sensitivity of the case, a defendant’s residency/employment statuses, an attorney’s professional reputation in the courtroom and political connections) play significant role in determining case process and outcome

  20. Fujian Pilot Key Hypotheses (cont.-c) • Criminal defense attorneys are marginalized in Chinese court by their professional peers such as judges and prosecutors • There are decreased (communist) party influence on case outcomes in the lowest court (i.e., less requests submitted by a presiding judge to the judicial committee)

  21. Fujian Pilot Key Hypotheses (cont.-d) • There is an increase in qualification and professionalism among Chinese legal practitioners in the past three decades • Job satisfaction (with regard to prestige, stress, turnover, financial reward and upward political mobility) is low for judges, prosecutors and defense attorneys who work in the lowest level Chinese court

  22. Data Collection (1): Survey • The Design of Survey Questionnaire(基层法院刑事辨护机制的调研) • What kind of questions to ask, and why? • Knowledge from the field (informative; comprehensive; exhaustive; timely) • Relevance to the current and follow-up research on the topic (closed vs. open-ended Qs.) • Relevance to the ongoing criminal justice reform in general • Questions that can be answered by multiple occupational groups • Questions that can be correlated for analytical inquiries later • How do we record responses? • Response scale • Pilot test of the questionnaire with an eye on anticipated responses

  23. Data Collection (1) cont. • Implementation of the Survey and Presentation of the Results • Who completes our survey? • Juris Master candidates (Fujian law schools)/Local Lawyer’s Associations/Major local law firms • Focus is on lawyers, but contrast from other CJ occupational groups is desired • Empirical analysis of the survey • Descriptive • Correlational (hypothesis testing on group differences) • Narrative

  24. Data Collection (2): Courtroom Observations • Purpose: (1) observe the overall dynamics of courtroom interactions; and, in particular (2) roles played by defense counsel in actual criminal trials • Data collection Instrument: Ct. observation form (听审记录表） • Implementation process • Where • When • How

  25. Data Collection (3): Case Files • Case level data collection • Complete case files(卷宗 ) • Record keeping • Confidentiality concerns • How to make use of them? • Cross-sectional differences (professionalism; inter-agency disparities) • Longitudinal differences (professionalism; intra-agency changes) • Statistical analysis (codification of files) • Narrative exploration; impact of legal reforms on ct. (sentencing) practices • Summary judgment files (判决书) • Open court/legal web site access • Utility (large quantity; recent cases) and limitation (selection bias; limited jurisdictions; limited case types uploaded)

  26. Fujian Pilot Key Findings (see Tables in Word format)

  27. What’s next after the Fujian pilot? Why do we propose to improve Juvenile Indigent Defense first? Follow-up Concept Paper

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