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By Elizabeth M. Lynch, March 17, 2010

A true test of any criminal justice system is how it treats its most vulnerable and perhaps one of the most vulnerable groups in any society is the mentally ill.  Shunned by many in the world and often incapable of asserting their rights when questioned by police, the mentally ill are often left unprotected.  In its almost 250-year existence, the United States has come a long way in protecting the rights of the mentally ill but not without a struggle.  While the insanity defense and competency to stand trial have long been a part of Anglo-American jurisprudence, the requisite procedures to evaluate mental illness are of more recent provenance.

Given our difficulty, how does country like China, with a criminal justice system that has only been around for 32 years, handle mentally ill suspects and defendants?  Prof. GUO Zhiyuan (pronounced Gwo Zhir-yooan), Associate Professor of Law at the China University of Political Science and Law, has answered that question in her recent article “Approaching Visible Justice: Procedural Safeguards for Mental Examinations in China’s Capital Cases (Hastings Int’l. and Comp. L. Rev., Winter 2009).

With the first candid examination (at least in English) of the interplay between the Chinese Criminal Law and the Chinese Criminal Procedure Law, Prof. Guo shows us that while the law ostensibly protects the mentally ill, there is a lack of procedural protections.  If the defense attorney doesn’t have the right to call for a mental examination of his or her client, what good is an insanity defense?  Prof. Guo examines these issues and offers potential reforms in Approaching Visible Justice.  From our own experience, protecting the mentally ill is not an easy task, but with scholars like Prof. Guo working on this issue, there is the possibility that China is not far from offering similar protections.  Below is an interview with Prof. Guo discussing her recent article and the plight of the mentally ill in the Chinese criminal justice system

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EL: Does the Chinese criminal law have special protections for the mentally ill?  Is there an insanity defense like there is in the U.S.?  In what other ways does mental illness come into play under China’s criminal law?

GZY:  Yes, Chinese criminal law does have special protections for the mentally ill.  Article 18 of the Criminal Law of the PRC [People’s Republic of China]states:

“If a mental patient causes harmful consequences at a time when he is unable to recognize or control his own conduct, upon verification and confirmation through legal procedure, he shall not bear criminal responsibility. . . . If a mental patient who has not completely lost the ability of recognizing or controlling his own conduct commits a crime, he shall bear criminal responsibility; however, he may be given a lighter or mitigated punishment.”

Although defendants with mental illness do not bear criminal responsibility, Article 18 of the Criminal Law of the People’s Republic of China stipulates that:

“his family members or guardian shall be ordered to keep him under strict watch and control and arrange for his medical treatment. When necessary, the government may compel him to receive medical treatment.”

Article 18 also emphasizes:

“[a]ny person whose mental illness is of an intermittent nature shall bear criminal responsibility if he commits a crime when he is in a normal mental state.”

This is the same as in the American model, where the mental status at the time of crime is relevant in determining criminal responsibility.

EL: How does a defendant or his lawyer, make a claim that he is mentally ill and thus subject to the laws protections?   Does the defendant or his lawyer call for a mental examination?  Who pays for the mental examination?

GZY: In China, only the police, the prosecution or the court can decide to conduct a mental examination. Neither the defendant nor his lawyer can  initiate an evaluation; they also cannot apply to the judicial agencies for one; they can only apply for supplementary evaluations or re-evaluations after an officially-initiated examination has produced results. To my knowledge, both the officially-initiated mental examinations and the supplementary evaluations are conducted at the State’s expense, but when the defendant or his lawyer successfully initiates a re-evaluation, they retain mental health experts at their own expense.

EL: If you could redesign China’s criminal law and criminal procedure law, what would you change so that China best protects the mentally ill when they interact with the criminal justice system?  In other words, what would the ideal system look like?

GZY: I don’t see anything inappropriate in the provision in China’s Criminal Law, but it’s necessary to reform the Criminal Procedure Law of China. To be exact, procedural safeguards should be added to the current Criminal Procedure Law in order to put Article 18 of China’s Criminal Law into practice. It seems to me that the ideal system should, at the very least, adopt the following seven proposed reforms: First, for all capital cases, a mandatory pretrial examination of defendants’ mental status should be required at the State’s expense.  Second, the defense should be entitled to retain its own mental heath professionals who are allowed to witness and participate in this proposed mandatory mental examination or any other mental examinations initiated by the prosecution. Third, the defense’s right to initiate its own examination should be granted and respected.  This would be the most important change if it does occur.  Fourth, both parties should have a right — not just the defense — to confront the opposing side’s psychiatrist or other mental health examiner; this right should be guaranteed. Fifth, the indigent defendant should be entitled to psychiatric assistance at the State expense; this would ensure equal treatment among defendants with different financial means. Sixth, to address the problem of conflicting expert testimony, an additional impartial psychiatrist should be appointed by the court to perform another independent assessment.  This would aid the court in determining the mental condition of the defendant. Finally, effective assistance of counsel should be emphasized in those capital cases involving mentally disabled defendants.

EL: In China, sometimes a lawyer is held liable for the acts of his client (e.g. when a client perjures himself his attorney could be held liable).  Does a defense lawyer get into trouble if his client pleads “not guilty for reasons of insanity” and is found not to be insane?  Will the lawyer be censured?

GZY: Although it’s very easy for a defense lawyer  to get into trouble if his client withdraws a confession he made to the police, cases are very rare in which a lawyer gets into trouble because his client was found sane after pleading “not guilty for reasons of insanity.”

EL: In the U.S., mentally ill defendants don’t often receive the public’s sympathy.  But in your article, you discuss the

Mug Shot of Yang Jia and the murder weapon

case of Yang Jia, a man who stormed a Shanghai police station and killed six police officers after he had been harassed by the police.  The Chinese public was largely sympathetic toward him – do you think this was because people felt sorry for him because he was mentally ill?

GZY:  No. Although many thought that Yang Jia was insane, whether he was actually mentally ill or not would have depended upon further serious assessment by qualified and impartial professionals.  In Yang Jia’s case, the Chinese public was largely sympathetic towards him for the following reasons. First, with the public’s increasing awareness of their legal rights, police misconduct – which, of course, is not a uniquely Chinese problem – has met with unprecedented condemnation, and the call for judicial fairness has become more and more intense in these cases. The motive behind Yang Jia’s attack  –avenging past police misconduct – played directly to this sentiment. Second, there were a number of procedural flaws in Yang Jia’s case, such as lack of transparency, conflict of interest, and serious problems regarding  the mental examinations. The general public just seized on Yang Jia’s case as an opportunity to express their anger at police violence and to voice their demands for a more fair criminal justice system.

EL: Do you think there is increasing sympathy toward mentally ill defendants in China?  Are attitudes changing?  How are attitudes changing?

GZY: Yes, more and more attention is paid to mentally ill defendants in China, especially after a series of relevant high-profile cases such as Qiu Xinghua’s, Yang Jia’s, and Akmal Shaikh’s cases.  The general public has being changing their indifferent attitudes towards mentally ill offenders; more and more people have realized it’s essential to establish a fair judicial system to prevent the state from punishing the mentally ill.  For this transformation, open information has played an important role.

EL: Thank you Prof. Guo for your time and your insights on a very important issue in every criminal justice system.

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By Elizabeth M. Lynch, December 28, 2009

The Times Online is reporting that Akmal Shaikh will be executed tomorrow morning, Tuesday, December 29 at 10:30 AM local time (9:30 pm, Monday, EST).  Mr. Shaikh will be executed in Urumqi, the capital of the Xinjiang Autonomous Region.  After being held for more than 2 years without any family contact, Chinese authorities allowed two of Mr. Shaikh’s cousins to visit him in his hospital room.  A group from the British Consulate has also paid a visit to Mr. Shaikh.  High level discussions between the British and Chinese governments are continuing, with the British government requesting clemency or at the very least expert testimony regarding Mr. Shaikh’s mental illness. 

While the Chinese government has maintained that the case was handled according to law, no expert evidence was permitted to be submitted regarding Mr. Shaikh’s mental state.  Instead, the lay opinion of judges was used to determine that Mr. Shaikh suffered from no mental illness. 

If the Chinese government really wants the rest of the world to respect its courts and not view them as mere kangaroo courts, they themselves have to first respect their own laws, something that was absent in Mr. Shaikh’s case and other criminal cases involving mental illness.  The Chinese Criminal Law offers protections to the mentally ill.  But without procedures in place to examine a defendant’s mental state by professionals, these laws are conveniently rendered meaningless. 

Protection of the mentally ill would not just be helpful to Mr. Shaikh, but would also prove beneficial to the multitude of mentally ill Chinese defendants that interact daily with China’s criminal justice system.  While the Chinese press and the Chinese government seems to think that Mr. Shaikh’s execution will be a victory for rule of law in China and a repudiation of the extra-territoriality that existed in China in the late 1800s, in reality it will prove to be a lost opportunity for the Chinese people.

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By Elizabeth M. Lynch, October 26, 2009

British citizen and Chinese death row inmate, Akmal Shaik

Akmal Shaikh’s story is not unique.  Everyday criminal justice systems across the world deal with the mentally ill, often in disastrous ways and with dire consequences; the United States alone has executed over 100 mentally ill people since it reinstated the death penalty in 1977.  But what makes Mr. Shaikh’s story unusual is that this mentally ill British citizen is now sitting on death row in China, with a potential execution only days away. 

For the vast majority of his fifty-three years, Mr. Shaikh led a rather ordinary life, the kind of life that happily goes unnoticed by the world-at-large.  Running a thriving mini-cab business, Mr. Shaikh was the modicum of middle-class London success, living with his wife and five kids in Kentish Town.  But by the end of 2003, things began to rapidly change and Mr. Shaikh’s peaceful existence would be no more. 

In 2004, Mr. Shaikh left his family and moved to Poland with the goal of starting his own airline business although he lacked both financial capital and any knowledge of the business.  Not surprisingly, left untreated, his mental state continued to deteriorate.  Mr. Shaikh sent over 100 bizarre emails to the British Embassy in Warsaw, Scotland Yard, and even Paul McCartney, often making little to no sense.  However it was in Poland, away from his family, that Mr. Shaikh’s mental illness was preyed upon by a group of international drug dealers that would ultimately trick him into carrying drugs into China, a country that makes the United States’ zero tolerance to drugs look like a joke. 

Promising him a successful music career in China, Mr. Shaikh, who now wanted to become a Chinese pop star although unable to speak any Chinese, was told to fly to the Chinese northwest city of Urumqi with one of the drug dealer’s suitcases.  On September 12, 2007, at the Urumqi airport, Mr. Shaikh was arrested by the police for transporting four kilograms of heroin into China, a charge that is death penalty eligible in China and usually gets it. 

On October 29, 2008, Mr. Shaikh was found guilty and sentenced to death by the Urumqi Intermediate People’s Court.  On October 13, 2009, his first appeal, or what is known in China as a “trial in the second instance,” was rejected and his death sentence affirmed.  Mr. Shaikh’s case is now in the hands of the highest court in China, the Supreme People’s Court (SPC).  If they too affirm his death sentence, he will be executed in a matter of days.  But will the SPC take into account, as required under Chinese law, Mr. Shaikh’s mental illness?  Will the SPC see this case as an opportunity to finally establish procedures to determine a defendant’s mental illness, something the Chinese people have desperately been calling for?

Mental Illness and the Chinese Criminal Justice System: A System Not Unlike Ours

There is no doubt that Mr. Shaikh trafficked drugs into China.  Under Article 347 of the Chinese Criminal Law, trafficking more than 50 grams of heroin into China is subject to a prison term of 15 years, a life sentence, or the death penalty; here Mr. Shaikh brought in over 80 times that minimum amount – four kilograms of heroin.  China, like the United States, takes a harsh stance against drugs and often gives the maximum sentence of death for drug trafficking, and here, given the amount trafficked, Mr. Shaikh’s death sentence is far from surprising.  And even though Mr. Shaikh’s crime would not be death eligible in his home country of the United Kingdom, by committing the crime in China, he is subject to Chinese law and his foreign citizenship in no way excuses him from punishment. 

But Chinese law takes into account mental illness when determining a defendant’s culpability.  Article 18 of the Criminal Law eliminates all criminal culpability for those defendants who suffer from severe mental illness. For defendants whose mental illness is intermittent or less than severe, Article 18 allows the court to consider such factors in sentencing, permitting the court to give a lighter punishment than ordinarily required. 

Normatively, the Chinese criminal law, at least in terms of the mentally ill, is not too different from the criminal laws of the United States or the United Kingdom – all of these countries seek to protect the vulnerable class of the mentally ill from the harshness of the criminal law.  But where China differs is in its ability to implement these normative values, and Mr. Shaikh’s case is a prime example of this disconnect between the goals of the Chinese Criminal Law and its actual practice, an example that is becoming all too common in today’s China. 

Lack of Procedures to Determine Mental Illness in China’s Criminal Law

It was not until Mr. Shaikh’s appeal, the trial in the second instance, that the issue of his mental illness was raised by his attorneys.  And although the appellate judges laughed openly in court at Mr. Shaikh’s bizarre behavior in the courtroom, they found that Mr. Shaikh was not mentally ill.  The court based its judgment solely on Mr. Shaikh’s personal testimony that he does not suffer from mental illness and the fact that his family lacked a history of any mental disease.  There was no psychiatric examination of Mr. Shaikh or testimony from mental health experts regarding his mental state.  Instead, the judges merely relied upon their own observation and the testimony from an apparently mentally ill individual that he is completely sane. 

Mr. Shaikh’s case is not an example of the Chinese court subverting proper procedure.  Instead, Mr. Shaikh’s case is reflective of the fact that there is little to no procedures in place to actually determine the mental health of a defendant.  And this is not the first time that the issue of mental health, and the inability of the justice system to implement procedures to protect the mentally ill, has come up.  In fact, in the past three years, two Chinese citizens, Yang Jia (pronounced Yang Gee-ah) and Qiu Xinghua (pronounced Chiu Sing-hua), have both been executed even though questions of their mental health was openly debated by the Chinese legal community as well as by the Chinese public.  Calls from the Chinese people to protect these apparently mentally ill individuals went unheeded by the justice system. 

Instead, the courts have maintained a system that offers little opportunity to question the mental health of the defendant.  Neither the Criminal Law nor the Criminal Procedure Law offer any instruction on how mental health determinations should be made.  And other guidelines, namely the “Provisional Regulations on Psychiatric Evaluation of Mental Illness” and the “Procedural Rules on Forensic Analysis,” offer little else.  As a result, pre-trial psychiatric examinations are not mandated, and instead are left in the hands of the police, the prosecutors or the court to initiate.  As seen in the case of Mr. Shaikh, this often does not happen. The party that has the most interest in conducting a psychiatric exam – namely the defense – is not permitted to initiate such an examination under Chinese law; all the defense can ask for is a re-evaluation only after the prosecution conducts one.  The re-evaluation would still be conducted by experts of the state’s choosing (See Zhiyuan Guo, “Approaching Visible Justice: Procedural Safeguards for Mental Examinations in China’s Capital Cases,” 32 Hastings Int’l and Comp. Law Review, forthcoming).  As a result, too many mentally ill individuals, both Chinese and now a foreigner, are denied the justice and protection they are entitled to under Chinese law.  

The SPC Should Give Life to the Chinese People’s Will

Mr. Shaikh’s future now lies in the hands of China’s highest court.  Because of his citizenship, the British government

British Prime Minister Gordon Brown and Chinese President Hu Jintao

has become involved, with Prime Minister Gordon Brown discussing Mr. Shaikh’s fate with Chinese President Hu Jintao this past September during the G20 Summit. 

But the British government and the international community are not asking the Chinese courts to making an exception for a foreigner or to suspend the application of its laws to a non-Chinese.  Instead, they are requesting that the SPC give life to the Chinese Criminal Law’s promise to protect the mentally ill.

This is not just a foreign request; the Chinese people themselves have repeatedly called upon the courts to offer these protections.  Article 18 of the Criminal Law reflects their sentiment.  Furthermore, during both the Yang Jia and Qiu Xinghua trials in 2008 and 2006, respectively, the Chinese people, through online discussion boards and at the courts themselves, ardently protested the lack of protection for the mentally ill.  The Chinese people understand the need to give life to the promise of justice for the mentally ill found in the Criminal Law; it is now up to the courts to make that a reality. 

The true test of a society’s criminal justice system is how well it protects society’s most vulnerable.  With Mr. Shaikh’s case, the SPC has the opportunity to establish procedures by which the mentally ill can be protected.  By either remanding his case for psychiatric examination or by performing the examination itself, the SPC will not only potentially protect Mr. Shaikh, but also the hundreds of mentally ill Chinese defendants that interact with the Chinese criminal justice system on a daily basis.