Abstract
The statutory confession (法定的坦白犯) in China’s criminal justice system is oriented toward the policy that “leniency shall be granted to those who confess, severity shall be imposed on those who resist” (坦白从宽，抗拒从严). This is part of a long tradition with distinctive Chinese characteristics. We collected 6,876 intentional injury judgment documents (2014-2017) and analyzed them using an Ordinary Least Squares (OLS) model. We found that, 1) statutory confession did not contribute to the overall lenient punishments; and 2) confession had an independent function, without interference from other circumstances of statutory leniency. These findings highlight a dilemma: an act of confession does not contribute to lenient punishment. This is legal and rational but deviates from legislative intent. It also fails to conform to people’s expectations.
I. Introduction
The confession institution is “a unique precedent found in the Chinese legal system. It allows people to repent and change and is naturally the result of the Confucian emphasis on the cultivation of an inner sense of shame.” In China, judicial decisions involving acts of confession are frequently questioned by the public, creating a predicament for the criminal justice system. In contrast to the policy of “leniency to those who confess”, there is a folk saying, “confess, but rot in prison” (坦白从宽，牢底坐穿).
After the confession institution was established in the Eighth Amendment to China’s Criminal Law, a few studies focused on the understanding and application of confession, mainly about the concept, justification basis, and applied requirements for the new Article. The main argument is that, statutory confession is the act of surrendering or turning oneself in; balancing passively turning oneself in and the judicial efficiency (兼顾被动投案和效益) is the main justification basis of statutory confession; and the considerations for lenient punishment include judicial efficiency and the attitude of confessors. There are some empirical studies from judges on the application of lenient punishments to confessors, which refer specifically to the accusation and the procedure. Zimmerman made an experimental simulation on guilty pleas accounting for the vast majority of criminal convictions, and found a significant effect for culpability: guilty participants are more inclined to accept the plea; however, 32.6% of the innocent participants indicate that they would plead guilty to the crime in order to receive a guaranteed lesser sentence. Liu Qigang made an empirical research on the recognition and attitude of suspects to the policy of leniency to confession, and found that almost 67.2% of the suspects believe that there is a more lenient punishment to confession while 32.8% do not believe it; meanwhile, there are some differences according to the accusation type. Some compare the confession institution with the plea bargain in the U.S., arguing that, there are some similarities between the system of leniency towards guilty plea (which includes statutory confession) and plea bargain, in both of which the prosecutorial discretion is expanding. To restrict vindictive prosecution arising from plea bargain, which disobeys the due process, vindictive prosecution defense was developed. Zhao Xuguang and Chen Ruihua argue that, under the obligation-oriented mode of Chinese criminal procedural law, libertarian ideals, such as the right to maintain silence and the privilege against self-incrimination, do not apply. This provides a political philosophical basis for the situation of confession institution in China.
Confession refers to the act of an accused individual providing a voluntary confession to a specific crime. Statutory confession in China’s criminal policy is oriented toward “confessing to receive a lenient punishment.” In 2011, the Eighth Amendment to the Chinese Criminal Law added a new confession article in the section “Turning Oneself in and Meritorious Performance” Then, the Criminal Procedure Law Amendment added more articles in 2018, creating a new version of the criminal confession system. According to the relevant articles, the punishment for a suspect who confesses to the accused crime can be reduced by up to 50%. In this way, the system comprises a Chinese version of plea bargaining. Plea bargaining is an agreement in a criminal case where the prosecutor offers the defendant the opportunity to plead guilty in order to obtain either a lesser charge, or to the original criminal charge but with a recommendation of a lighter sentence than the maximum sentence. A plea bargain allows criminal defendants to avoid the risk of conviction at trial on the more serious charge. In the second half of the 19th century, plea bargain appeared in the Court of Appeal in the U.S., the content of which was shown as a lenient sentence to defendants who pleaded guilty. In the case Brady v. United States (1970), plea bargaining was confirmed to be legitimate, and the court explicitly states that plea bargain is a fundamental component of the criminal justice system and, if used properly, should be encouraged. In April 1974, the Federal District Court Criminal Procedure Rules formally confirmed plea bargain in the judicial system. Plea bargain saves the judicial system from overloading and collapsing effectively. Statistics show that 90% to 95% of criminal cases in the United States are handled through plea agreements. On the other hand, with the concept of plea bargain, the whole guilty-punishment system seems negotiable, which deepens the public’s uneasiness, and easily causes the whole judicial system to be damaged. Therefore, regulations for plea bargain are made to restrict the procedure and requirements for it.
Yet, questions still remain about whether the judicial phenomenon of “confession, but rot in detention” has changed since the changes to the legal system. To investigate China’s confession system, this study analyzed 6876 crime-of-intentional-injury judgments from 2014 to 2017 and examined the fundamental legal, cultural, and social reasons behind them. Furthermore, an Ordinary Least Squares model (OLS, i.e. minimizing the sum of the squares of the differences between the observed value and the linearly predicted value of the dependent variable) was used for analysis. We found that statutory confession did not contribute to lenient punishments overall. In light of this abnormal phenomenon, three questions are investigated:
The rest of this paper is organized as follows. Section II provides the research background of the confession system. Section III begins by providing the statistical basis of the study. Section IV describes the results of the models. Section V discusses the deep reasons. Our conclusions are provided in Section VI.
