Is Sentencing Suggestion a Mere Suggestion? ——An Empirical Study on the Rigidness of Sentencing Suggestion in China

• In Event: Sentencing 8. Novel Approaches in Sentencing Research

Abstract

China officially incorporated the system of leniency for pleading guilty and accepting punishments into the Criminal Procedure Law of the People's Republic of China in 2018, with article 201 stipulating that the People's Court should generally accept the People's Procuratorate's charges and sentencing suggestions. In practice, the court's acceptance rate of procuratorial sentencing suggestions experienced a sharp drop from 96.03% during the pilot period to 58% after the system's incorporation into law half a year later, and then to a stable 98.3% after four years. This demonstrates the inherent tension between the courts and procuratorates regarding the acceptance of sentencing suggestions. The reason lies in the ambiguity of the language. The phrase "generally should" grants the procuratorial agencies substantial sentencing power, sidelining the courts' adjudicative power and breaking the original division of responsibilities between the judiciary and the procuratorate, causing confusion in the sentencing recommendation mechanism and the entire plea bargaining with leniency system. Therefore, the sentencing suggestion article needs further clarification. Based on an empirical study on A City B District Court, this paper analyzes the application rate, submission rate of specific sentencing suggestions, and acceptance rate of such suggestions, finding that there are issues with insufficient negotiation and deficient rationality of specific sentencing recommendations. Hence, it is proposed that the "generally should" provision should be revised and abolished to prevent procuratorial agencies from sidelining the courts' adjudicative power; encourage procuratorial agencies to make more flexible sentencing recommendations; and protect the accused's right to defense in plea bargaining. Adopting procuratorial sentencing recommendations is likely to become the future landscape of criminal justice. Therefore, this paper aims to improve the binding provisions of sentencing recommendations at the system level and enhance the appropriateness of procuratorial sentencing recommendations in operation to a new potential pathways to criminal justice reform.

Author

• Jinruo Hu, China University of Political Science and Law