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ILR Fellowship in Shanghai: A Chinese Approach to Plea Leniency

February 27, 2023

The International Legal Research (ILR) Fellowship offers Penn Carey Law Students financial support for a short-term summer legal research project abroad. 

Santini Wei L’24

Plea bargaining—a process in which prosecutors offer concessions in exchange for guilty pleas from defendants—is a longtime feature of Anglo-American criminal courts. In fact, nearly 95 percent of cases in American criminal courts are resolved by this procedure, which underlies the American criminal justice system’s pride in its judicial efficacy.

Over the last two decades, a plea bargaining “Americanization” has swept across foreign legal systems, often blending local customs with the American prototype. In 2018, China introduced “plea leniency” to its criminal procedure law nationwide after a trial period in select cities. Since then, its use has skyrocketed there. As of 2020, more than 85 percent of filed criminal cases in China have employed this procedure.

This summer, with the help of an International Legal Research (ILR) Fellowship from Penn Carey Law, I traveled to Shanghai, hoping to explore the adaptability of American criminal procedure in a civil law country. Specifically, I wanted to better understand how plea leniency diverges from plea bargaining and to predict if it is likely to succeed in the Chinese criminal system.

In American courts, through plea bargaining, criminal defense attorneys can secure either a lighter sentence or fewer charges for their clients. Under Chinese plea leniency, however, though sentences may be lighter, the charges cannot be negotiated–confusingly, the Chinese procedural law claims that defendants are entitled to presumption of innocence without a lowered proof standard.

U.S. scholars largely approve of the judicial efficacy that Chinese plea leniency has brought, but they cast doubt on the alleged due process. Some characterize the Chinese criminal system as “encouraging” defendants to admit guilt, which they view as a failure in its design. Meanwhile, Chinese literature has labeled American plea bargaining as “too extreme.”

Despite these differences, plea leniency in China does resemble the American prototype to some extent. Though the Chinese iteration does not involve the word “bargaining,” prosecutors and defendants engage in kongbian xieshang, or negotiation as two parties, and reap certain benefits. If defendants plead guilty and successfully reach an agreement with the prosecutor, they may receive reduced sentencing, and thus “leniency.”

Judges in civil legal systems often play a less impartial role than their colleagues in common law systems, however. Instead of relying on litigants to present arguments in an adversarial manner, civil law judges inquire and investigate facts of the case actively. A “truth-seeking” mentality pervades Chinese criminal culture. Adjudicating is viewed as akin to solving a problem, and a defendant’s admission of guilt is the result.

So, given the inquisitorial nature of civil legal courts and the harsh Chinese criminal culture, what end does plea leniency serve? Is there real “leniency”?

In preparation for this project, I reviewed dozens of articles in different languages, but found the information to be limited and largely descriptive. Mostly, I found abstract comparisons between plea bargaining and plea leniency that didn’t address reality and were further complicated by differences of ideology in the scholarship. My summer research enabled me to touch base with reality.

In my time in Shanghai, I was fortunate to be able to interview judges, defense attorneys, and prosecutors, who shed light on the scenes in courtrooms. I interviewed judges in different specialized courts during a one-on-one hourly session and conducted six sessions in total. One judge in the intellectual property court, who identified corruption as an unwanted consequence, expressed doubts about the feasibility of plea leniency. “Allowing negotiations between counsels and prosecutors will bring myriad unknown factors and add another layer of subjectivity,” he stated. Considering the inquisitorial nature of the civil law system, justice might not be better served if such reform is indeed implemented.

Before commencing my trip, I thought the research would reveal the success or failure of a civil–common law merger. Yet, despite the above-mentioned insights, my three weeks in Shanghai left me still confused and wanting to know more. This trip furthered my interest in international law. I aspire to a career in international organizations where I can delve further into issues on comparative legal systems.