Litigation Tax – An Analysis of Criminal Defense Lawyers’ Roles in Minor offenses in China

• In Event: ACCCJ Criminal Trial, Sentencing and Public Petition in China

Abstract

Western literature suggests that offenders who are convicted with a jury trial typically receive a more severe sentence than if they go through a plea bargain. “Litigation tax” in the form of a more severe criminal penalty is a result of several compounded factors, such as growing prosecutorial power and discretion, reduced judicial discretion with mandatory minimum sentences, and the assembly-line criminal defense service for the majority of criminal defendants due to high workload of public defenders. Previous research in China found that criminal defense did not benefit, but may impose “litigation tax” on defendants. Drawing on minor criminal cases involving assault and theft, this paper examines the role and the effectiveness of criminal defense on probation decisions. Through an analysis of judicial judgment documents, different types of defense and their effects on court’s decisions are analyzed. Theoretical and policy implications are discussed as well.

Authors

• Hong Lu, University of Nevada, Las Vegas

• Yudu Li, University of Texas Rio Grande Valley

• Bin Liang, Oklahoma State University – Tulsa