Abstract
This study examines the effectiveness of court-appointed lawyers in comparison to private attorneys within China’s criminal justice system, focusing on the “Lawyers for All” program. Utilizing data from Guangdong courts between 2018 and 2021 and covering five types of crimes, the research employs propensity score matching to evaluate sentencing lengths and probation rates. The findings indicate that defendants represented by court-appointed lawyers typically receive shorter sentences than those with private counsel, but they are less likely to be granted probation. Additionally, an innovative metric—“actual time served in prison”—suggests a reduced incarceration period for defendants with court-appointed attorneys. The study proposes that the collaborative role of court-appointed lawyers within the Chinese courtroom workgroup potentially influences these outcomes, contrasting with the adversarial nature of private attorneys. This analysis contributes to the broader understanding of legal representation in authoritarian regimes, highlighting the unique dynamics within China’s legal system.
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Notes
In Germany, Sect. 140 (1) of the German Code of Criminal Procedure states that court shall assign an accused with a defense counsel in so-called necessary defense, which involves situations such as the accused is charged with a felony, is tried before a higher court, and is detained on remand or otherwise not considered able to defend himself. In Japan, according to Article 36 of the Code of Criminal Procedure, defense counsel will be appointed upon request or by the authority of the court if a suspect is detained in connection with a criminal case or is indicted.
The latest version of regulation [Provisions of the Supreme People’s Court on Publication of Judgment Documents by the People’s Courts on the Internet 2016] states that local courts should upload any judgment online within 7 days from the date of the case is disposed (Article 7) unless this case falls into an excluded category including cases involving state secrets, juvenile criminal cases, disputes concluded through mediation, divorce, and adoption cases (Article 4). Moreover, the regulation requires local courts to disclose the Case ID, the name of the court, the filing date, and the explanation whenever they decide not to release a specific case (Article 6). This rule further institutionalized the publicizing of the court decision.
In the simplest context, suppose that a court adjudicated three cases in a specific year, it posted case 1, case 3 but did not disclose case 2. Although our dataset only includes two cases, we can still deduce from the “max” Case ID of case 3 that the total number of cases adjudicated by this court in this year is at least three. In a big dataset, we use the following formula to estimate the annual caseload of criminal cases adjudicated by a court.
$${\widehat{C}}_{all}=\frac{n+1}{n}{k}_{n}-1$$In this formula, n is the total number of criminal case documents posted online by a court in a specific year, and $${k}_{n}$$ refers to the largest number of the Case ID of these documents. Assuming that {$${k}_{i}$$}, i = 1, …, n is an increasing sequence, then $${\widehat{C}}_{all}$$ is the unbiased estimate of $${C}_{all}$$, the total number of cases adjudicated by this court in this year.
In some violent crimes, such as traffic accidents and intentional assault, victim compensation refers to compensating for the personal injury suffered by the victim. In property crimes, such as theft, fraud, and robbery, victim compensation also includes “returning the illegally obtained money and property, or making compensation” (tuizang tuipei).
According to official statistics, among 1,528,034 criminal defendants charged in 2020, 1040 were acquitted. The acquittal rate in 2020, for instance, is less than one out of a thousand (Law Yearbook of China Editorial Board, 2021).
Theoretically, the probation could be revoked if defendants commit a new crime or seriously violate probation rules. In this case, defendants need to serve their declared sentence in jail. However, in practice, this rarely happened. Empirical studies suggest that the overall revocation rate in China is below 1% (Hu, 2018). Therefore, labeling their actual time served in jail as zero, though not completely precise, would not cause much bias.
References
American Bar Association. (2009). Eight guidelines of public defense related to excessive workloads. . Chicago, IL.: ABA Division for Legal Services Standing Committee on Legal Aid & Indigent Defense
Anderson, J. M., & Heaton, P. (2012). How much difference does the lawyer make? The effect of defense counsel on murder case outcomes. The Yale Law Journal, 122(1), 154–217.
Beck, J., & Shumsky, R. (1997). A comparison of retained and appointed counsel in cases of capital murder. Law and Human Behavior, 21(5), 525–538.
Biddulph, S., Nesossi, E., & Trevaskes, S. (2017). Criminal justice reform in the Xi Jinping era. China Law and Society Review, 2, 63–128.
Blumberg, A. S. (1967). The practice of law as confidence game-Organizational cooptation of a profession. Law & Society Review, 1(2), 15–40.
Bowen, D. M. (2009). Calling your bluff: How prosecutors and defense attorneys adapt plea bargaining strategies to increase formalization. Justice Quarterly, 26(1), 2–29.
Bright, S. B. (1994). Counsel for the poor: The death penalty not for the worst crime but for the worst lawyer. Yale Law Journal, 103, 1885–1899.
Burger, W. E. (1973). The special skills of advocacy: Are specialized training and certification of advocates essential to our system of justice? Fordham Law Review, 42(2), 227–242.
Calogero, P. F. (1995). The right to counsel and indigent defense. Loyola Law Review, 41(2), 265–278.
Cape, E., Namoradze, Z., Smith, R., & Spronken, T. (2010). Effective criminal defence in Europe: Executive summary and recommendations. Intersentia
Chen, K., Dong, H., & Tang, Y. (2018). Practice and concerns of the ‘Lawyers for All’ program [Xingshi Anjian Lvshi Bianhu quan Fugai de Shijian he Sikao]. Justice of China [zhongguo Sifa], 11, 38–45.
China Law Society. (2018). Law yearbook of China. The Press of Law Yearbook of China.
China Lawyers Association. (2002). Statistical analysis report on the development of China’s lawyers in 2002. Beijing: China Lawyers Association.
Cohen, T. (2014). Who is better at defending criminals? Does type of defense attorney matter in terms of producing favorable case outcomes. Criminal Justice Policy Review, 25(1), 29–58.
Cookea, F. L., Linb, Z., & Jiang, Y. (2013). Who are ‘managing’ the lawyers in China? Control and commitment. The International Journal of Human Resource Management, 24(18), 3418–3437.
CourtData. (2024, 5 1). Judicial transparency database (Map). Retrieved from CourtData: https://court-ai.com/index?site=transparency
Eisenstein, J., & Jacob, H. (1977). Felony justice: An organizational analysis criminal courts. Little, Brown and Company Inc.
Feeney, F., & Jackson, P. G. (1991). Public defenders, assigned counsel, retained counsel: Does the type of criminal defense counsel matter. Rutgers Law Journal, 22(2), 361–456.
Fukurai, H. (2013). A step in the right direction for Japan’s judicial reform: Impact of the justice system reform council recommendations on criminal justice and citizen participation in criminal, civil, and administrative litigation. Hastings International and Comparative Law Review, 36(2), 517–566.
Gilboy, J. A., & Schmidt, J. R. (1979). Replacing lawyers: A case study of the sequential representation of criminal defendants. The Journal of Criminal Law and Criminology, 70(1), 1–26.
Gu, Y. (2017). The challenges and remedies of the ‘Lawyers for All’ program’ [Xingshi anjian Lvshi Bianhu quan fugaii de Tiaozhan yu Shixianlujin]. Justice of China [Zhongguo Sifa], 11, 43–47., 7, 21–26
Hanlon, S. F., Brink, M., & Lefstein, N. (2021). Use of the Delphi method in ABA SCLAID public defense workload studies: A report on lessons learned. Chicago, IL: BA Division for Legal Services Standing Committee on Legal Aid & Indigent Defense
Hartley, R. D., Miller, H. V., & Spohn, C. (2010). Do you get what you pay for? Type of counsel and its effect on criminal court outcomes. Journal of Criminal Justice, 38, 1063–1070.
Haynes, S. H., Ruback, B., & Cusick, G. R. (2008). Courtroom workgroups and sentencing: The effects of similarity, proximity, and stability. Crime & Delinquency, 56(1), 126–161.
Hou, Y., & Truex, R. (2022). Ethnic discrimination in criminal sentencing in China. The Journal of Politics, 84(4), 2294–2299.
Hu, C. (2018). The impact of defendant identity differences on sentencing: An empirical analysis of 1060 criminal verdicts. Tsinghua University Law Journal, 12(4), 92–110.
Huang, K. C., Chen, K. P., & Lin, C. C. (2010). Does the type of criminal defense counsel affect case outcomes?: A natural experiment in Taiwan. International Review of Law and Economics, 30(2), 113–127.
Imbens, G. W. (2004). Nonparametric estimation of average treatment effects under exogeneity: A review. The Review of Economics and Statistics, 86(1), 4–29.
Johnston, J. S., & Waldfogel, J. (2002). Does repeat play elicit cooperation? Evidence from federal civil litigation. The Journal of Legal Studies, 31(1), 39–60.
Jorgensen, C., & Wells, J. (2022). Is marijuana really a gateway drug? A nationally representative test of the marijuana gateway hypothesis using a propensity score matching design. Journal of Experimental Criminology, 18(3), 497–514.
Authoritarian legality and informal practices: Judges, lawyers. (2010). Communist and Post-Communist Studies, 43, 351–362.
Kadish, S. H., Schulhofer, S. J., & Barkow, R. E. (2017). Criminal law and its processes: Cases and materials. Wolters Kluwer.
Lafree, G. (2006). Adversarial and nonadversarial justice: A comparison of guilty pleas and trials. Criminology, 23(2), 289–321.
Law Yearbook of China Editorial Board 2021 Law Yearbook of China Beijing
Li, E. (2010). The Li Zhuang case: Examining the challenges. Columbia Journal of Asian Law, 24(1), 129–169.
Li, X. (2015). Confession governance and Chinese criminal judicial referee [Kougong Zhili yu Zhongguo Sifa Caipan]. Social Science in China [zhongguo Shehui Kexue], 1, 119–205.
Liang, B., He, N. P., & Lu, H. (2014a). The deep divide in China’s criminal justice system. Crime, Law and Social Change, 62, 585–691.
Liang, B., He, N. P., & Lu, H. (2014b). The deep divide in China’s criminal justice system: Contrasting perceptions of lawyers and the iron triangle. Crime, Law, and Social Change, 62(5), 585–601.
Liebman, B. L. (1999). Legal aid and public interest law in China. Texas International Law Journal, 34, 211–286.
Liebman, B., Roberts, M., A. Z., & Wang. (2020). Mass digitization of Chinese court decisions: How to use text as data in the field of Chinese law. Journal of Law and Courts, 8(2), 177–201.
Liu, S., & Halliday, T. C. (2009). Recursivity in legal change: Lawyers and reforms of China’s criminal procedure law. Law & Social Inquiry, 34(4), 911–950.
Liu, S., & Halliday, T. C. (2011). Political liberalism and political embeddedness: Understanding politics in the work of Chinese criminal defense lawyers. Law & Society Review, 45(4), 831–865.
Lawyers in the People’s Republic of China: A study of commitment and professionalization. (2005). The American Journal of Comparative Law, 53(2), 433–455.
Lu, H., & Kelly, B. (2008). Courts and sentencing research on contemporary China. Crime, Law and Social Change, 50(3), 229–243.
Lu, H., & Miethe, T. D. (2002). Legal representation and criminal processing in China. The British Journal of Criminology, 42(2), 267–280.
Lu, H., Trejbalova, T., & Liang, B. (2019). Proceduralism, political embeddedness and death penalty lawyers in China. The China Quarterly, 238, 353–74.
Lynch, E. M. (2011). China’s rule of law mirage: The regression of the legal profession since the adoption of the 2007 lawyers law. George Washington International Law Review, 42, 535–585.
McIntyre, L. J. (1987). The public defender: The practice of law in the shadows of repute. University of Chicago Press.
Metcalfe, C. (2016). The role of courtroom workgroups in felony case dispositions: An analysis of workgroup familiarity and similarity. Law & Society Review, 50(3), 637–673.
Michelson, E. (2007). Lawyers, political embeddedness, and institutional continuity in China’s transition from socialism. American Journal of Sociology, 113(2), 352–414.
Olmos, A., & Govindasamy, P. (2015). Propensity scores: A practical introduction using R. Journal of MultiDisciplinary Evaluation, 11(25), 68–88.
Packer, H. L. (1964). Two models of the criminal process. University of Pennsylvania Law Review, 113(1), 1–68.
Roberts, M. E., Liebman, B. L., Stern, R. E., & Wang, A. Z. (2017). Mass digitization of Chinese court decisions: How to use text as data in the field of Chinese law. 21st Century China Center Research Paper No. 2017–01, 1–37.
Rosenbaum, P. R. (2002). Observational studies. Springer.
Rosenbaum, P. R., & Rubin, D. B. (1985). Constructing a control group using multivariate matched sampling methods that incorporate the propensity score. The American Statistician, 39(1), 33–38.
Silverstein, L. (1965). Defense of the poor in criminal cases in American state courts. American Bar Foundation.
Skolnick, J. H. (1967). Social control in the adversary system. Journal of Conflict Resolution, 11(1), 52–70.
SPC & MOJ. (2017, 10 11). guanyu kaizhan xingshi anjian lyushi bianhu quanfugai shidian gongzuo de banfa. Retrieved from Ministry of Justice of the People's Republic of China: http://www.moj.gov.cn/government_public/content/2017-10/11/tzwj_8908.html
SPC. (2022, 10 22). Opinions on further deepening the pilot work for full coverage of lawyer defense in criminal cases. Retrieved from The Supreme People's Court of the People's Republic of China: https://www.court.gov.cn/zixun/xiangqing/377031.html
Sterling, J. S. (1983). Retained counsel versus the public defender: The impact of the type of counsel on charge bargaining. In W. F. Hills, The Defense Counsel. CA: Sage.
Tang, Y., & Liu, J. Z. (2019). Mass publicity of Chinese court decisions: Market-driven or authoritarian transparency? The China Review, 2, 15–40.
ThePaper.cn. (2018, 11 21). Does the criminal defense increase in the last five years? Evidence from 3 million court documents. Retrieved from The Paper.cn: https://www.thepaper.cn/newsDetail_forward_2654942
Ulmer, J. T. (1995). The organization and consequences of social pasts in criminal courts. The Sociological Quarterly, 36(3), 587–605.
Uphoff, R. J. (1992). The criminal defense lawyer: Zealous advocate, double agent, or beleaguered dealer? Criminal Law Bulletin, 28, 419–456.
Wheeler, G. R., & Wheeler, C. L. (1980). Reflection on legal representation of the economically disadvantaged: Beyond assembly line justice. Crime and Delinquency, 26, 319–332.
Williams, M. R. (2002). A comparison of sentencing outcomes for defendants with public defenders versus retained counsel in a Florida circuit court. The Justice System Journal, 23(2), 249–257.
Williams, M. R. (2017). The effect of attorney type on bail decisions. Criminal Justice Policy Review, 28(1), 3–17.
Wolf-Harlow, C. (2001). Defense counsel in criminal cases. U.S. Department of Justice, Office of Justice Programs. Washington, DC: Bureau of Justice Statistics
Worden, A. P. (1991). Privatizing due process: Issues in the comparison of assigned counsel, public defender, and contracted indigent defense systems. Justice System Journal, 15(1), 390–418.
Yan, S. (2013). Comments on the confession centralism [Kougong Zhongxinzhuyi Pingxi]. Evidence Science [zhengju Kexue], 4, 437–452.
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Wu, Y., Li, S. Equality in Representation? The Efficacy of Court-Appointed Lawyers in the Chinese Criminal Courts. Asian J Criminol (2024). https://doi.org/10.1007/s11417-024-09428-y
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DOI: https://doi.org/10.1007/s11417-024-09428-y