Condemned By the Company We Keep

Today’s New York Times carries an excellent and harrowing account of a Chinese father’s so-far-fruitless attempt to get Chinese justice for his son, now sentenced to life imprisonment, Desperate Search for Justice: One Man vs. China. The Chinese criminal judicial process is presented as an oriental version of Kafka: only limited rights for the defendant, and those are routinely ignored (e.g. right to see evidence, or to cross examine). In this case the father actually managed to win an appeal, but that just got the case sent down for re-trial, which again was a farce. And the second appeal was decided on political grounds — it seems that the specially selected panel thought that public confidence in the state required a scapegoat for the ugly crime, and here was a convenient scapegoat…

So my first reaction was that here was an object, and abject, account of why the rule of law matters, and why it is so important to protect the criminal rights of defendants. As the Times noted, the Chinese system had a 99.7 percent conviction rate last year out of 770,947 adjudicated cases. The Times suggests that “Conviction rates are also high in the United States, especially in federal criminal cases.” Indeed, “More than 90 percent of federal defendants plead guilty,” usually taking a plea bargain to avoid a trial. Those who elect a trial fare better: for the most recent period for which I could find data [circa 1986-2000, source: Andrew D. Leipold, Why Are Federal Judges So Acquittal Prone?, 83 Wash. U. L.Q. 151 (2005) (citing Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online tbl. 5.22)], “the average conviction rate for federal criminal defendants was 84% in jury trials, but a mere 55% in bench trials.” These numbers are impressive when you figure that, in addition to the people determined to prove their innocence, a substantial subset of the people who go to trial are those whom the prosecutors think are so guilty that they offered little or nothing in the plea bargain.

Unfortunately, it seems that on balance the average Chinese criminal defendant gets a better deal than what this administration wants to offer persons it labels “enemy combatants” and ships off to Guantanamo.

On the basis of no evidence, I’m prepared to stipulate that the Guantanamo prisoners get better food — at least when they are not on hunger strikes or attempting suicide due to years in solitary or near-solitary confinement.

There are several similarities, e.g. handpicked judges, beatings and other mistreatment of prisoners, life imprisonment (in China, post-trial, in Guantanamo includes pre-trial)

In other ways, the Chinese defendant gets, or at least can hope for, a better deal than under the “monsterous” procedures the US government offers alleged “enemy combatants” in Guantanamo: While it appears the Chinese rules often are not followed in practice, at least aspirationally they offer the hope of the following rights that the Bush administration does not want to see in Guantanamo: the right to know the charges against you, the right to know who your accusers are, the right to cross-examine prosecution witnesses (compare the facts of the Hamdan case), the right to call your own witnesses (compare the recent refusal to allow David Hicks to call expert witnesses), the right to proceedings in your own language or with competent translation, and (here we can blame the Senate too) the right to appeal the fundamental fairness of the proceeding. If nothing else, the railroaded Chinese defendants’ families have visitations rights. Not even human rights groups get that in Guantanamo. [Incidentally, for a real double whammy, consider how badly the US government treats Chinese nationals held in Guantanamo whom even the US thinks are innocent of any crime.]

Is this the level to or below which we wish to sink?

Not in my name, please.

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One Response to Condemned By the Company We Keep

  1. James Wimberley says:

    Another low but interesting standard is offered by the trials of Jesus of Nazareth as reported in the Gospels. There were apparently two: a trial for before Caiaphas on a pretty accurate charge of blasphemy, but the court lacked jurisdiction to impose capital punishment; and a trial before Pilate on a bogus charge of sedition, necessary to get the capital sentence. These trials were surely marked by procedural irregularities such as being held late at night, and by bad faith. But they were in public; Jesus was confronted with the charges and (in the first trial) the evidence against him; he was given more than one opportunity to challenge these and defend himself. No torture was used to extract a confession, though the execution itself was by a form or torture. There are no references to language problems; the first trial would have been in Aramaic and the second presumably in Latin with adequate interpretation. And remember the Gospel accounts are by writers trying to show the judges in a bad light.

    This allegedly born-again administration doesn’t come up to the standards of Pontius Pilate, let alone the man who later sacked Pilate for his oppressive behaviour, the Emperor Tiberius.

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