Recent amendments to China’s Criminal Law, effective May 1, 2011, are well-known for reducing the scope of the death penalty. They are not known commonly, however, for the more than 40 other ways they affect people in the criminal justice system. Two such ways are by increasing the minimum term of incarceration and restricting access to sentence reductions for certain individuals.
The amendments raise the minimum jail term for an individual sentenced to life imprisonment by 36 months to 13 years. They also empower courts to deny sentence reductions to individuals given two-year-suspended death sentences who are either repeat offenders or convicted of certain violent offenses, including murder, rape, robbery, or kidnapping. Since decisions to deny sentence reductions must be imposed at the time of sentencing, and individuals subject to such decisions are ineligible for parole under Article 81 of the Criminal Law, the amendments allow courts to enforce minimum sentences of 20 to 25 years.
These changes reflect public and expert concern over the substantial gap in punishment between the death penalty on the one hand, and suspended death sentences and life imprisonment on the other. According to Chen Xingliang, a professor at Beijing University Law School who has studied Chinese criminal punishment, average time served for individuals sentenced to suspended death sentences is 18 years, with a typical range of 14 to 24 years, while the figure drops to 15 years, with a range of 12 and 22 years, for lifers. Chen argues that increasing the length of time serious offenders remain behind bars is one way to reduce use of the death penalty, as society’s expectations of punishment will be more adequately satisfied.
When considering serious offenders, individuals sentenced with endangering state security (ESS) come quickly to mind. Of the 12 ESS offenses in China’s criminal code, eight carry the possibility of life imprisonment or the death penalty. According to Dui Hua’s extensive collection of political cases, these gravest punishments are most often handed down in cases involving “splittism,” espionage, and trafficking in state secrets—especially when sentences are based on a combination of ESS and other charges.
Dui Hua data indicates that most individuals sentenced to life or suspended death sentences are eventually released via commutations to fixed-term imprisonment and subsequent sentence reductions. But several factors restrict ESS prisoners’ eligibility for sentence reduction and parole. For example, regulations in Shandong province state that ESS prisoners are “normally” not eligible for sentence reductions. Moreover, Dui Hua has identified only one case of an ESS prisoner paroled without commutation or sentence reduction—Yu Zhijian (余志坚) was sentenced to life imprisonment in 1989 for throwing paint on a portrait of Chairman Mao; he was released on parole in Beijing on September 13, 2000. At the time of his release, he had served more than 10 years of his original sentence, thus fulfilling minimum-term requirements as stipulated under the Criminal Law in force at that time.
A recent interpretation by the Supreme People’s Court states that changes to minimum jail terms will not apply retroactively to persons whose sentences were imposed prior to May 1, 2011; however, those serving time for ESS are likely to continue facing greater difficulty in obtaining sentence reductions and parole. Dui Hua has identified eight controversial cases of individuals serving life sentences for ESS offenses in China. Three-fourths of the cases involve ethnic Tibetans or Uyghurs, and all of the cases involve allegations of violence and terrorism that have been disputed.