28th February 2024
Dr Enshen Li, Associate Professor at City University of Hong Kong.
Abstract: Research tends to perceive sentencing as a singular, holistic system with the judiciary. In this article, I use a structural-functionalist analysis to explicate how the power to punish in People’s Republic of China (China) has morphed into what I call ‘the sentencing pyramid’ with largely discrete and separate praxis across law enforcement apparatus.
Grappling with competing values, the formal structure of sentencing under this Party-state’s new legal-political ideology manifests itself in three layers of operation, classed by the nature of the crime with each layer individually dominated by police, procuratorates and courts, respectively. In this hierarchical composition, a vast number of infractions sit at the base where police monopolize the sentencing process through primarily administrative sanctions.
The middle level consists of sizable individuals involved in misdemeanors whose sentences are ordinarily determined by procurators under the scheme of plea leniency in the interests of cost-efficiency and productivity.
At the upper level is the punishment of residual serious crimes, which are the main target of “trial centeredness” devised to aspire to judicial authority in sentencing. In many respects, China’s sentencing pyramid is breaking away from a “system” model. This is because the three levels of sentencing practices are very loosely interconnected and independent. Within their particular realms of power, the legal authorities cling to vastly different programs, procedures, and principles to achieve their distinct goals of punishment.
Photo Credit: Shek Pik Prison in Hong Kong by Mk2010 https://commons.wikimedia.org/w/index.php?curid=19378793