Milestones and Current Dilemmas: Evaluation of Sentencing Standardization for Illegal Possession of Drugs in China
2.1. Normative Analysis of Sentencing Models
2.2. Hypothesis, Sample, and Verification
2.2.2. Sample Selection
3. Results: The Effectiveness of the Application of the Standardized Sentencing Model
3.1. Sentencing Reform Regulates Stability and Consistency
3.2. Some Statutory Sentencing Circumstances Are Ineffective
3.3. The Polarization of Numerical Sentencing Justice
4. Dilemmas in and Reasons for the Application of Standardized Sentencing Models
4.1. Mixed Incrimination Models Compress Sentencing Space
4.2. Carrying Capacity Overload and Imbalance in Penalties
4.3. Discrepant Criteria for Evaluating Discretionary Sentencing Circumstances
5. Discussion: Reconfiguration of the Numerical Sentencing Model
5.1. Harmonization of Sentencing Standards
5.2. Constructing a Gradient of Correspondence between Offenses and Penalties
5.3. Clarifying the Effect of the Evaluation of Discretionary Sentencing Circumstances
Institutional Review Board Statement
Informed Consent Statement
Data Availability Statement
Conflicts of Interest
|Comparatively Large Quantities of Drugs||CLQDs|
|Large Quantities of Drugs||LQDs|
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See MacCormick’s (2006) book. In simple cases, the judge does not dispute the legal norm that is the logical premise of deductive reasoning, and the validity of the case verdict only needs to be based on proof of logical deduction. Complex cases are those in which the legal norm that is the logical premise is disputed or no corresponding legal norm exists, and the judge needs to create a new rule according to his value judgment.
Report on the Work of the Supreme People’s Court (SPC): The total number of cases in 2014 was 1,023,000, and the acquittal rate was 4 per 10,000; the total number of cases in 2016 was 1,099,000, and the acquittal rate was 5 per 10,000; the total number of cases in 2018 was 1,198,000, and the acquittal rate was 3 per 10,000.
The estimation sentencing model means that the judge, without strictly distinguishing between the circumstances of the conviction and the circumstances of the sentence, arbitrarily sentences the offender within or below the statutory limits based solely on his or her sentencing values, general knowledge, and trial experience. The standardised sentencing model is based on the national sentencing guidelines issued by the Supreme People’s Court: “qualitative in focus and quantitative in support”.
The 11 types of common crimes include theft, fraud, robbery, embezzlement, extortion, smuggling, trafficking, the transportation and manufacturing of drugs, unlawful absorption of public deposits, fundraising fraud, credit card fraud, contract fraud, and the illegal possession of drugs. The 12 types of non-amount crimes include traffic offences, intentional assault, rape, illegal detention, robbery, obstruction of public service, mob fighting, provocation, concealing or concealing the proceeds of a crime, dangerous driving, allowing others to take drugs, and inducing, allowing, or procuring prostitution.
In 2021, the Supreme People’s Court and the Supreme People’s Procuratorate issued the Sentencing Guidance on Common Crimes (for Trial Implementation), which amended the Sentencing Guidance on Common Crimes revised in 2017, while the basic steps of the standardised sentencing model therein remained substantially unchanged. The Sentencing Guidance on Common Crimes (II) of the Supreme People’s Court continues to be effective.
The setting of sentencing circumstances refers to the situation in the Sentencing Guidelines in which exceptional sentencing circumstances unique to a crime are set following the elements of the crime to adjust the base sentence, including intentional assault, rape, illegal detention, theft, robbery, obstruction of public service, smuggling, trafficking, the transport and manufacture of drugs, dangerous driving, and inducing, tolerating, and procuring prostitution.
The Implementing Rules of the Guidance on Sentencing for Common Crimes (II) of the Shandong Provincial High People’s Court (for trial implementation) limit the starting point for the illegal possession of a large quantity of drugs from “imprisonment for a fixed term of less than one year or detention” to “imprisonment for a fixed term of three months to one year.” In addition, the starting point for the illegal possession of a large amount of drugs is limited from “seven to nine years’ imprisonment” to “seven to eight years’ imprisonment”. A new provision was added: “For illegal possession of heroin or methamphetamine of 500 g or a large quantity of other drugs, the starting point for sentencing shall be determined within ten to eleven years of fixed-term imprisonment”.
In the quantification process, the quantities of different types of drugs are converted into the corresponding quantities of heroin by the relevant legal norms. In contrast, opium and methamphetamine are converted under Article 384 of the Criminal Code. All “quantities of drugs” in the following paragraphs are based on the corresponding quantities of heroin after conversion.
Article 348 of the Criminal Law of the People’s Republic of China (amended in 2020).
In the crime of illegal possession of drugs, for defendants who constitute both recidivism and drug recidivism due to the same drug offence, the provisions of the Criminal Law on recidivism and drug recidivism shall be invoked in the adjudication documents. However, they shall not be repeatedly punished with heavier penalties when sentencing. The term “recidivist or drug recidivist” refers to recidivism or drug recidivism; no specific distinction will be made.
As the quantitative relationship between the quantities of drugs and the base sentence is “severed” in the cases of “CLQD” and “LQD”, there is a significant difference in the ratio between the quantity of drugs and the base sentence. When including sentencing data, a distinction must be made according to the number of drugs in possession, which is then substituted into the model.
The two are in a contradictory relationship. The relationship between two species’ concepts with allometric parallelism is contradictory if the sum of their extents is equal to the extent of their genus concepts.
https://wenshu.court.gov.cn/, accessed 20 December 2020.
Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Drug Crime Cases (Fa Shi/Interpretation  No. 8), Article 5: The sentence shall be deemed to be “aggravated circumstances” and the starting point for sentencing shall be determined within the range of three to four years of imprisonment if the illegal possession of drugs reaches the standard of a larger quantity and has one of the following circumstances: if the illegal possession of drugs is in a drug rehabilitation place or a place of supervision, if the illegal possession of drugs is using or abetting minors, if the illegal possession of drugs is by a state employee, or if other circumstances are severe.
The Sentencing Guidance concentrates on the national collective judicial rationality, a summary and sublimation of the rational national experience. At the same time, the various implementation rules formulated by the provincial high people’s courts according to the Sentencing Guidance and other rules are a distillation and generalisation of the sentencing practice in each province. Individual judicial rationality is the judicial discretion of judges in individual cases, while individual judicial rationality should respect collective judicial rationality.
The Hubei Provincial High People’s Court’s Sentencing Guidelines on Expanding the Offences and Types of Sentences for Sentencing Standardisation (for trial implementation) (2016): “If one of the following circumstances exists, the penalty may be reduced by less than 30% of the base sentence: (1) if the drug content is low; (2) if the person suffers from a serious illness and illegally possesses drugs in order to alleviate the pain of the illness by taking drugs; (3) Pregnant women, breastfeeding women, persons suffering from serious diseases and other special groups of people who are used or forced to participate in drug offences; (4) other circumstances in which the penalty may be reduced”.
|Classification||Criminal Law Penalty Ranges||Sentencing Guidance Starting Point Range|
|The comparatively large quantities of drugs (CLQDs)||Up to three years of imprisonment, detention, or control||Less than one year of imprisonment, detention|
|Aggravating circumstances||Three to seven years of imprisonment||Three to four years of imprisonment|
|Large quantities of drugs (LQDs)||More than seven years of imprisonment||Seven to nine years of imprisonment|
|Regions/Provinces||Enumerating the Different Types of Drugs||Refinement of the Relationship between the Amount of Drugs and the Base Sentence||Definition of “Aggravating Circumstances”||Creation of Aggravating Circumstances||Creation of Mitigating Circumstances||Specific Application of Fines||Conditions for the Application of Suspended Sentences|
|Regions/Provinces||Detention/Imprisonment for a Term Not Exceeding Three Years||More Than Three Years and Less Than Seven Years||More than Seven Years of Imprisonment and Detention|
|Liao Ning||1 g/1 Mon||1 g/2 Mon||10 g/1 Mon|
|Shan Dong||1 g/1 Mon||1 g/1 Mon||13 g/1 Mon|
|Shang Hai||1 g/1 Mon||1 g/2 Mon||10 g/1 Mon|
|Si Chuan||1 g/1 Mon||1 g/2 Mon||10 g/1 Mon|
|Tian Jin||1 g/1–2 Mon||1 g/1–2 Mon||10 g/1–2 Mon|
|Hu Bei||1 g/1–2 Mon||1 g/2–3 Mon||10 g/1–2 Mon|
|Zhe Jiang||5 g/4 Mon||5 g/6 Mon||-|
(Number of Cases)
|Dependent Variable||Explanatory Variables||Control Variables|
|In-Law Elements||Out-of-Law Elements|
|Basic Constituent Facts of the Offence||Other Criminal Facts Affecting||Sentencing Circumstances|
|Sentence of fixed-term imprisonment||Quantity of drugs||Quantity of drugs||Previous conviction, recidivism or drug recidivism, surrender, confession, merit||Advocacy, suspected drug trafficking, confirmed drug use||“Aggravating circumstances”, minor (age), attempt, accessory, type of drug possession|
|Quantity of Drugs||Years|
|Comparatively large quantities of drugs||N||264||283||266||253||90|
|Spearman||0.695 **||0.729 **||0.792 **||0.691 **||0.864 **|
|Large quantities of drugs||N||53||81||64||51||28|
|Spearman||0.519 **||0.694 **||0.665 **||0.690 **||0.827 **|
|Comparatively Large Quantities of Drugs||Large Quantities of Drugs|
|Estimate||Std. Error||T Value||Pr(>|t|)||Estimate||Std. Error||T Value||Pr(>|t|)|
|Starting points||13.24854||0.49293||26.877||<2 × 10−16 ***||101.26794||3.39680||29.813||<2 × 10−16 ***|
|Surrender||−0.21590||0.03777||−5.716||1.46 × 10−8 ***||−0.25713||0.04269||−6.023||4.69 × 10−9 ***|
|Confession||−0.35624||0.01330||−26.783||<2 × 10−16 ***||−0.13369||0.02396||−5.581||5.10 × 10−8 ***|
|Previous convictions||0.07746||0.02330||3.324||0.000921 ***||0.01608||0.03856||0.417||0.676978|
|Recidivism (or drug recidivism)||0.07375||0.02616||2.820||0.004907 **||0.12496||0.04574||2.732||0.006647 **|
|Defence||−0.04391||0.01280||−3.431||0.000627 ***||−0.06432||0.01841||−3.494||0.000542 ***|
|Suspected drug trafficking||−0.02141||0.01264||−1.694||0.090582||−0.02528||0.02329||−1.085||0.278533|
|Confirmed drug use||−0.02118||0.01086||−1.951||0.051353||−0.02693||0.01987||−1.355||0.176354|
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Wu, J.; Xia, Y.; Song, A. Milestones and Current Dilemmas: Evaluation of Sentencing Standardization for Illegal Possession of Drugs in China. Laws 2023, 12, 53. https://doi.org/10.3390/laws12030053
Wu J, Xia Y, Song A. Milestones and Current Dilemmas: Evaluation of Sentencing Standardization for Illegal Possession of Drugs in China. Laws. 2023; 12(3):53. https://doi.org/10.3390/laws12030053Chicago/Turabian Style
Wu, Jia, Yang Xia, and Apei Song. 2023. "Milestones and Current Dilemmas: Evaluation of Sentencing Standardization for Illegal Possession of Drugs in China" Laws 12, no. 3: 53. https://doi.org/10.3390/laws12030053