The NPC Standing Committee (NPCSC) concluded its bimonthly session on Saturday (June 29) with the adoption of the Vaccine Administration Law [疫苗管理法] and a decision granting special amnesty to nine classes of convicts who are currently serving their sentences (custodial or otherwise). Below we will focus on the special amnesty decision.
The NPCSC has the authority to grant “special amnesty” [特赦] under the 1982 Constitution (art. 67, item 18), and the President has the constitutional duty to “issue orders of special amnesty” [特赦令] “in accordance with the decisions of the [NPCSC]” (art. 80). (Here is the one Xi Jinping signed on Saturday.) A special amnesty commutes either the whole or part of an eligible convict’s remaining sentence, but does not remove his or her conviction, as the NPCSC Legislative Affairs Commission previously explained.
Yesterday’s special amnesty decision marks the second time the NPCSC has exercised that authority during Xi’s tenure—and the ninth in the history of the People’s Republic. It last did so in August 2015, just days before the 70th anniversary of the end of World War II and the 1937–1945 Sino-Japanese War. The NPCSC’s decision that year granted amnesty to four classes of convicts, leading to the eventual release of 31,527 convicts nationwide.
All those four classes of convicts are, generally speaking, once again eligible for special amnesty under the NPCSC’s decision yesterday, which also covers five new classes of convicts. But because Saturday’s decision includes more exceptions than the 2015 decision, it is unclear whether it would lead to the release of more convicts or not. We have yet to see an official estimate.
Eligible Classes of Convicts
Yesterday’s decision grants special amnesty to the following nine classes of convicts now serving sentences in accordance with court verdicts that were rendered before January 1, 2019, subject to the five exceptions listed further below:
- Those who have participated in the 1937–1949 Sino-Japanese War and the Chinese Civil War ending in 1949 (who now should all be over 80 years old), except those covered by Exception 3, 4, or 5;
- Those who have participated in “wars against foreign invaders to protect national sovereignty, security, and territorial integrity” after the founding of the People’s Republic, except those covered by any of the Exceptions;
- Those who, after the founding of the People’s Republic, (1) have made “considerable contributions” [较大贡献] to “major State constructions projects” [国家重大工程建设]; and (2) have received honorary titles like “Model Workers” [劳动模范], “Advanced Workers” [先进工作者], or “May Day Labor Medal” [五一劳动奖章] that were awarded by government authorities at or above the provincial or ministerial level—except those covered by any of the Exceptions;
- Those who (1) have served on active duty and (2) have received awards at or above Individual First Class Merit Citation [个人一等功], except those covered by any of the Exceptions;
- Those who (1) have taken “unjustified self-defense” [防卫过当] or “unjustified necessity defense” [避险过当] (i.e., causing unnecessary harm when trying to avoid an ongoing danger to oneself or to another) and (2) as a result have been sentenced to no more than three years in prison or are serving sentences with no more than one year left—except those covered by Exception 3, 4, or 5;
- Those who (1) have attained the age of 75, (2) now have serious physical disabilities, and (3) cannot live on their own—except those covered by Exception 3, 4, or 5;
- Those who (1) committed crimes while under 18 and (2) have been sentenced to no more than three years in prison or are serving remaining sentences of no more than one year—except those covered by Exception 1, 3, 4, or 5;
- Female convicts who (1) are widowed; (2) have children who (i) are minors or (ii) have serious physical disabilities and cannot live on their own; (3) must indeed raise those children on their own; and (4) have been sentenced to no more than three years in prison or are serving remaining sentences of no more than one year—except those covered by Exception 1, 3, 4, or 5; and
- Those who have been granted parole and have completed at least one-fifth of the probationary period; or who have been sentenced to controlled released [管制]—except those covered by any of the Exceptions.
While the policy rationales behind most of the nine classes are obvious, two bear further discussion.
Class 5 covers those who have been criminally punished for taking excessive actions when attempting to stop or avoid dangers to themselves or to others. They are eligible for special amnesty, the Legislative Affairs Commission explained, because this would encourage the citizens to “fight crimes and to actively participate in emergency rescue or disaster relief.”
Class 9 is the only class that applies only to female convicts. Male convicts are excluded to show “the Party’s and the government’s special care for women,” so that they would “show gratitude to the Party and the government, take good care of their families, and actively give back to the society.” This rationale is baffling, however, as a matter of policy. It effectively punishes minor or disabled children from equally unfortunate single-parent families only whose fathers are incarcerated—for no good reason other than to offer women some special solicitude in this one instance, but in an overtly patriarchal and borderline sexist way.
As noted, the NPCSC’s decision also includes five exceptions, any of which, if applicable, will render an otherwise-qualified convict ineligible for special amnesty. They are:
- Applicable to convicts in Class 2, 3, 4, 7, 8, or 9 only: those who have committed any of the following:
- corruption or bribe-taking;
- criminal violations of duties by servicemembers [军人违反职责犯罪] (see Criminal Law, Part II, Ch. 10);
- intentional homicide, rape, robbery, kidnapping, arson, causing explosions, disseminating hazardous substances, or organized violent crimes;
- mafia-type organized crimes [黑社会性质的组织犯罪];
- drug trafficking;
- endangering national security (which would disqualify most dissidents now serving sentences for subversion, inciting subversion, or separatism);
- terrorism-related crimes;
- being principal offenders in other organized crimes; or
- being recidivists.
- Applicable to convicts in Class 2, 3, 4, or 9 only: those (1) whose remaining sentences are ten years or more; (2) who are serving life sentences; or (2) whose death sentences are being suspended.
- Applicable to all Classes: those who have been granted special amnesty before but have received criminal punishment for committing new crimes.
- Applicable to all Classes: those who have refused to admit their guilt and show repentance.
- Applicable to all Classes: those who are assessed as posing a threat to the society.
All five criminal justice authorities will have a role to play in implementing the NPCSC’s special amnesty decision.
Administrative organs of justice (which oversee the prisons and community corrections) and the public security organs (which oversee the detention centers) will start the implementation process by reviewing all convicts currently serving sentences and put forward a tentative list of convicts eligible for special amnesty.
Then the process proceeds to a potentially (more) problematic part. That list of convicts recommended for amnesty will then be forwarded to the public security organs that originally investigated them, which (assisted by state security organs if necessary) will give their view on whether the convicts would pose a threat to the society—thus ineligible for amnesty under Exception 5. The procuratorates will also have the chance to provide their view on whether a convict is eligible. It is unclear how much weight the authorities that originally came up with the lists would give to the police’s and the procuratorates’ opinions. It is also unclear whether there would be strict recusal requirements so that those who originally investigated or prosecuted the convicts would not introduce bias into the process.
The list of convicts recommended for special amnesty will be made public for a certain period before they are finally submitted to the courts for a decision. The courts will conduct a supposedly independent review of whether the convicts meet the requirements in the NPCSC’s decision.
And of course, the Party’s political-legal commissions will oversee and coordinate the whole process.
The NPCSC on Saturday also adopted the Vaccine Administration Law [疫苗管理法]. The Law includes 100 articles in eleven chapters; it was quickly drafted after the Changsheng vaccine scandal last year. For space reasons and our lack of expertise, we will just say that the Law subjects vaccines to more stringent regulation than other types of drugs at every stage of their life cycles. The Law will take effect on December 1, 2019.
We expect the NPCSC to soon solicit public comments on the other legislative bills it reviewed last week.
Many thanks to Taige Hu for excellent research assistance.