The US and China have a lot in common: they draw international criticism for their prison systems, and they place undue burden on prisoners who refuse to confess. With systems for parole and sentence reduction, both countries should allow “well-behaved” prisoners to serve less than their full sentence, but if prisoners maintain their innocence, they’re likely to face formidable obstacles on the path to early release.
The Gears of Reduction
In China, “showing genuine repentance” is one of the criteria necessary to receive a sentence reduction or parole. For most prisoners, clemency is approved through a grueling eight-step process, moving from cellmates to guards, evaluation committees, wardens, and the court. For those convicted of “endangering state security” (ESS) and crimes like “using a cult to sabotage implementation of the law,” the process is more rigorous, resulting in significantly lower rates of sentence reduction and parole even for those who confess.
In the US, the federal and state prison systems release prisoners early through a combination of determinate parole, where prisoners receive standard reductions for set reasons like good behavior, and indeterminate or discretionary parole, which takes prisoners before parole boards. One factor that US parole boards take into consideration is whether prisoners confess.
Many criminal justice practitioners see confession as a mark of emotional maturity and responsibility for past actions. What this view fails to consider is that some prisoners genuinely believe they are innocent and have been wrongly convicted. These prisoners are often faced with the choice between compromising both their innocence, which affects their ability to appeal, and serving longer sentences.
Prisoners who do not confess have little opportunity to express the nuances of their cases because parole hearings are too short and too far between. California’s 12-member board, for example, averages nearly 4,000 parole hearings a year. Tough new parole laws such as California’s Proposition 9 (Marsy’s Law), which was passed in 2008, extended the maximum period between an inmate’s parole hearings from five years to 15. Measures like Proposition 9 reduce the case loads of parole boards but raise the stakes for prisoners. And since in most states parole is an administrative power of the executive branch (with parole boards appointed by the governor), prisoners do not have the same right to legal counsel at parole hearings as criminal defendants have at trial.
In China, refusal to confess not only reduces the prospect of clemency but can mark prisoners for a harsher regime of treatment, including denial of family contact, meant to induce admissions of guilt.
America’s Michael McDonald
In 1992 Michael McDonald was convicted of murder and sentenced to 15 years to life for his part in the slaying of Alexander Geraldo. Both McDonald and the victim were 16 years old at the time of the crime. McDonald was found guilty on the basis of circumstantial evidence and shaky witness testimony. Throughout his arrest, trial, and imprisonment, he maintained his innocence.
The prison psychologist who evaluated McDonald said she believed he was not involved in the murder. Prior to his arrest, he had no criminal record or history of drug or alcohol abuse. While in prison, his behavior was exemplary: he earned a high-school diploma, an associate’s degree, and vocational certificates.
Based on his history and behavior, the parole board found McDonald fit for release on three occasions. Each time the governor denied parole, citing the seriousness of the original offense and McDonald’s “lack of insight,” as evidenced by his continued claims to innocence.
China’s Hu Shigen
In 1995, as a founding member of the China Liberation and Democracy Party and the China Free Labor Union, Hu Shigen (胡石根) was sentenced to 20 years’ imprisonment for “organizing and leading a counterrevolutionary group” and “counterrevolutionary propaganda and incitement.” Although pressured to do so, Hu initially refused to confess.
His prison sentence legally began with the start of his detention in 1992. Because he was given fixed-term imprisonment, he became eligible for parole in 2002 after he had served half of his sentence. Around that time Chinese-government responses to US prisoner lists indicated that Hu was behaving well in prison, offering strong basis for early release: in October 2001 Hu was said to “obey his supervisors,” and in December 2002 he was “able to submit to reform.”
By 2003, however, no sentence reduction was forthcoming, and desperate for clemency, Hu confessed. A year later China’s Ministry of Justice maintained that Hu was still not eligible for parole. In a December 2004 response to Dui Hua, the ministry said that: “although [Hu] has completed more than half of his sentence, based on his attitude toward reform he has still not yet met the requirements for sentence reduction or parole” (emphasis added).
The Politics of Innocence
With evidence of good behavior and a confession to satisfy regulations requiring “acknowledgement of guilt” as a sign of “sincere repentance,” why was Hu denied clemency? The answer may lie in rules that were codified by the Beijing Prison Management Bureau in 2006. The rules specify that approval from the municipal prison-administration bureau is necessary to process sentence reduction and parole applications for certain prisoners, including political prisoners, foreign nationals convicted of endangering state security, and people “whose cases have significant domestic and international influence.” In short, the rules clarify that political, not judicial, mechanisms determine the fate of prisoners like Hu.
Politics also played a role in McDonald’s case. Since parole decisions are typically made by executive-appointed boards, governors tend to protect their careers by appointing conservative members. Parolees committing crime make headline news rife with political liability, while reformed inmates denied parole make back-page editorials and little else.
In the three states where governors have the power to veto parole board decisions, politically motivated decisions are even more blatant. In California, for example, Governor Schwarzenegger approved only 27 percent of paroles recommended by the board during his eight-year tenure. This was a big improvement over his predecessor. Governor Gray Davis denied 98 percent of recommended paroles from 1999 to 2003. “If you take someone else’s life,” Governor Davis told parole-seekers, “forget it.” Since taking up office in 2011, California Governor Jerry Brown has been more moderate vetoing only 20 percent of parole board decisions thus far. While Governor Brown’s deference to his board is commendable, it is in the context of an unprecedented budget crisis and a major court decision to reduce prison overcrowding. Strong variation in gubernatorial veto rates points to party politics.
Stuck in political limbo, both McDonald and Hu eventually obtained clemency with the help of outside forces. In the McDonald case, the California Court of Appeal ruled that the state could not legally deny parole solely because an individual refused to confess, and that McDonald did not pose “an unreasonable risk to public safety.” The decision was upheld despite the governor’s appeal, and McDonald was released in November 2010 after 18 years in prison.
In the case of Hu, three sentence reductions, each roughly one year apart, led to an early release after Manfred Nowak, the UN special rapporteur on torture, published an account of Hu’s plight in a report on his mission to China in 2006. Hu was released four years early in April 2008, presumably due to international attention garnered by Nowak and countries like the EU and US that, assisted in part by Dui Hua, submitted prisoner lists of concern.
Finding a Third Way
In cases of non-violent crime (Hu) or when experts objectively determine that a prisoner is fit for release (McDonald), explanations for denying clemency are often political, and prisoner advocates must seek compromise.
Until 2005, medical parole was the compromise offered to many high-profile Chinese dissidents who refused to confess. Unlike parole and sentence reduction in which prisoners are expected to serve at least part of their sentences, medical parole can be granted at any time. Medical parolees are not generally required to report to police and have been known to “seek treatment” abroad.
Starting in the 1990s, a string of relatively healthy political prisoners were released and sent abroad. These prisoners chiefly went to the US, where an annual debate was deciding the renewal of China’s trade status. But after China’s trade status was permanently secured, and especially since the campaign against color revolutions began in 2005, hardly any political prisoners have been granted medical parole. Instead, internationally known prisoners like Tenzin Delek in Sichuan and Lobsang Tenzin in Tibet have been denied medical parole despite serious health conditions.
The road to early release for political prisoners has become increasing difficult to navigate in recent years, but a new path offers hope that clemency can be achieved with broader interpretations of existing regulations. Dui Hua has learned of a handful of Chinese political prisoners who met the requirements for confession by choosing not to “admit guilt” but “to accept the verdict.” This compromise resembles the Alford Plea in the US criminal justice system—a plea entered at trial allowing defendants to maintain an innocence claim on the record, while accepting a guilty verdict on the grounds that there is sufficient evidence to convict—and is available to all prisoners of conscience.
Sentence reduction and parole are answers to tight budgets, overcrowded prisons, and miscarriages of justice, but when the keys to freedom lie with politicians, prison doors too often remain locked.