Prosecutorial Accountability: To Whom, and How?

The first question is more political than legal and is at the core of China’s polity, that is, the people’s democratic dictatorship. In liberal democratic states, prosecutors are delegated by the public to make decisions on how best to serve them by performing prosecutorial tasks, therefore, they are answerable to the public. The situation is rather different in China. According to the constitution, all powers come from the people³, to whom the procuratorate is accountable. However, in China “the people” [renmin 人民] is a politically fluid notion. Mao Zedong’s (1957) theory of the people’s democratic dictatorship distinguishes between “the people” and “non-people.” Those who are classified as “non-people” (e.g., those labeled as reactionary forces or enemies) are subjected to political marginalization and excluded from the people’s democratic dictatorship (see also Knight 1990; Wang 1994). In order to preserve the people’s dictatorship, the state possesses and may use revolutionary powers against “non-people.” The concept of “the people” is constantly adjusted, contingent on specific political circumstances.⁴ Those who determine the shifting boundary between the two and possess “revolutionary power” clearly have wider prerogative authority than the purported power base stipulated by the constitution. This understanding is important, as the accountability relationship is about the delegation of power and the identification of original authority is necessary, especially as regards who controls nonnegotiable coercive power. In China, the ccp retains the power to use “revolutionary force” and represents the people’s dictatorship (Xinhua Net 2021). This mapping of power demonstrates that, first and foremost, prosecutors are accountable to the ccp.

The question as to how prosecutors can be held to account presents a greater challenge. Notably, the Party-state, or the “people’s sovereignty,” has two bodies: the Party and the people’s congresses, which represent different but interlinked constitutional orders (Chen 2008; Hand 2012; Jiang 2010; Qin and Ye 2017). Understanding how these two systems communicate and interact in the constitutional framework is central to the mechanism of prosecutorial accountability, considering that the procuratorate is beholden to the Party as well as the people. Over time, the dialectics of the two orders have been a point of debate, which concerns how political power, manifested in the form of Party supremacy, coexists and engages with the normative constitutional structure. The views expressed by Jiang (2010) and Qin and Ye (2017), respectively, are relevant to prosecutorial accountability. Jiang (2010) observes that the function of the people’s congresses, as a legitimate avatar, translates the Party’s political decision into formal laws. This is readily achieved because the people’s congresses and the Party are unified, which is evidenced by the fact that Party members constitute the vast majority of representatives in the congresses, and both represent “the fundamental interests of the overwhelming majority of the Chinese people.”⁵ Although this seems to infer that the procuratorate only has to answer to the relevant congress (the people’s congress at the level corresponding to the administrative rank of the procuratorate),⁶ Jiang reminds us that this is only part of the story: beyond the written constitution, China’s political sovereignty is defined by an unwritten constitution based on the ccp charter. This unwritten constitution and the way in which it operates, Jiang writes, is a better reflection of the political reality in China, which is characterized by the Party leadership and China’s socialist identity. According to this concept of an unwritten constitution, the procuratorate must prioritize Party rule and is called to account primarily by the Party.

Jiang’s interpretation of political constitutionalism was challenged by Qin and Ye (2017). Although they acknowledge the supreme power of the Party, Qin and Ye argue that by designing and maintaining constitutional mechanisms to consolidate its absolute leadership, the Party is inevitably caged in by the rules and legal rhetoric of its own making (Fu and Zhai 2018). They acknowledge that the Party has not been entirely tamed by the constitutional framework and can exercise its power in an extralegal manner. However, in legitimating its authority as a form of state sovereignty, the Party has to abide by its own laws, and its political power must be regularized and controlled by the normative legal system. Based on this concept, the accountability mechanism operates principally in accordance with the normative constitutional discourse. Prosecutorial accountability overlaps with the accountability mechanism as set up in the structure of socialist legality. They do not deny that the Party can discipline its members pursuant to its charter.⁷ But prosecutors, as agents of the state, are not required to be accountable to the Party separately, even though it is the ultimate entity to which the prosecutors are accountable. Does this mean that prosecutors’ accountability to the Party is no longer relevant? The answer is no, because the Party as the ultimate principal, or account holder, is a defining characteristic of socialist accountability. Qin and Ye (2017) explain that socialist accountability is different from democratic accountability because the ruling Party has a “moral commitment” to its laws and to delivering “prosperity, liberty, and equality to its people” in exchange for its monopoly on political power (Fu and Zhai 2018). Rather than hinging on democratic principles, such as participation through elections, socialist accountability has an alternative value system, which is akin to benevolent paternalism. In this socialist system, liberty, equality, and human dignity, and so forth, are regarded in a substantive sense, and, consequently, procedural justice is marginalized. Qin and Ye’s theorization of the Party’s supremacy is more convincing than Jiang’s (2010) analysis in explicating prosecutorial accountability in the constitutional discourse. Not only do their descriptions of the inner workings of the political system resolve the challenging issues between the Party and the state, but they also offer insights into a crucial but often-neglected question: what makes the Chinese constitution socialist? Their explanation is helpful in dissecting the mechanism of prosecutorial accountability in China, shedding light on the circumstances under which prosecutors can be called to account in the event of a miscarriage of justice, discussed below.

Prosecutorial Accountability in the Constitutional Framework

According to Article 138 in the constitution of 2018, the spp is accountable to the National People’s Congress and its Standing Committee; the local people’s procuratorate is answerable to the local people’s congress at a corresponding level and, at the same time, reports to the procuratorate at the next higher level. This system of subordination at two levels is a political adaptation of the Soviet procuracy, the most authoritative institution in the Soviet legal system after which the procuratorate is modeled (Ginsburgs 1959; Oda 1986; Smith 1978, 1984). The Soviet procuracy was a centralized, hierarchical apparatus that maintained organizational independence from other state institutions and was well known for its supervisory function to oversee the observance of laws by all ministries, government agencies, enterprises, social organizations, and individuals (general supervision), as well as the application of the law in criminal processes (special supervision) (Ginsburgs and Stahnke 1968; Hanson and Thompson-Brusstar 2021; Morgan 1960). Prosecutorial accountability in the Soviet system is manifested in the vertical system organized on the principles of independence, uniformity, and centralization, with prosecutors responsible only to the Supreme Soviet of the ussr (Loeber 1986; Smith 1978: 14). With respect to the transplanting of the Soviet-style procuracy in China in the 1950s, views about the organizational structure among the political leaders (the legislators) were deeply divided, and a debate took place as to whether the Chinese procuratorate should mirror the Soviet procuracy or be tailored to China’s socioeconomic conditions (Ginsburgs and Stahnke 1964; Xie and Ren 2010). The prevailing opinion about the organizational design was reflected in the Organic Law of the Procuratorate (and the constitution to some extent), which from 1949 to 1979 swung between a unitary independent body, on the one hand, and the system of dual subordination, on the other.⁸ The many rounds of political debate and revisions eventuated in a preference for the system of dual subordination by the political leaders. Some elements of the Soviet legacy were retained, but it was decided that the procuratorate should be accountable to the people’s congresses as well as the procuratorate at a higher level. Thus, instead of being defined as an independent organization that consists mainly of legal professionals, prosecutors are defined as representing the will of the sovereign.⁹

This system of dual subordination—vertical and horizontal accountability—is consistent with the principle of democratic centralism, which attempts to combine socialist democracy and centralism in the structure of the state.¹⁰ Horizontally, this is a solution to ensure that the procuratorate maintains a clear link to the people’s congresses and is responsive to the concerns of the people. ¹¹ Hierarchically, the procuratorate is led by the procuratorate at the next higher level.¹² Somewhat paradoxically, this vertical control of the procuratorate retains the doctrine of edinonachalie [jiancha yiti 检察一体], or one-man management, from the Soviet system, meaning that the head of each administrative unit issued all directives and took full responsibility for the results the organization achieved. As a key feature of the Soviet procuracy system, every prosecutor’s power was delegated by the ultimate authority of the procurator-general and edinonachalie made the procurator-general and chief prosecutors responsible for the collective of prosecutors and the outcome of the cases processed. (Ginsburgs 1959; Morgan 1960; Smith 1984). Recall that the procurator-general of the ussr, as the head of the monolithic pyramid of the procuracy, was a commanding figure in Soviet politics, exercising the highest degree of control over the accurate execution of laws and guarding against interference in prosecutorial matters from other political quarters (Smith 1978: 15). “Procuratorial integration,” as a critical component of the centralized structure, was designed to safeguard the independence of the procuracy and to ensure consistency and uniformity of prosecutorial policies. In this sense, transplanting this principle to China seems misplaced. The Chinese procuratorate is not an insulated central apparatus that has a comprehensive general supervisory function, and the procurator-general is not a political leader responsible for the systematization and coordination of procuratorial supervision at all levels. Why does the procuratorate still adhere to this principle?

Chen Weidong and Li Xunhu (2006) observed that procuratorial integration is the antithesis of prosecutorial independence: it emphasizes the chain of command within the hierarchical structure, which allows higher procuratorates—in particular, the spp—to be in charge of the entire procuracy by issuing mandates and directives. It also justifies and legitimizes the internal bureaucratic approval mechanism within each procuratorate (Gu and Zhang 2020). Because the operational functions exercised by the prosecutor are delegated by the chief prosecutor at the procuratorate in which she works (whose power is considered to be entrusted by the procurator-general), her power to handle criminal cases is deemed incomplete until the decisions are duly reviewed and authorized, following internal reporting and approval procedures up the bureaucratic ranks of leaders all the way until the top echelon (Qin 2015; Xie 2017). This mechanism, known as three-tiered review, was designed as a coordinated ex ante way to justify firm control by the chief prosecutor. As part of implementing the bureaucratic system, prosecutorial discretions are regimented and constrained in compliance with the central policy set by the spp. The unified top-down approach enforces vertical accountability and enables the hierarchical order of the procuratorate to take priority over the local people’s congresses. The hierarchical accountability within the procuratorate has been a substantive undertaking, dominating prosecutors’ daily work and characterizing their collective decision-making. In contrast, accountability to the people’s congresses is symbolic in nature, mostly embodied in the chief prosecutor’s delivery of the standardized annual work report to the people’s congress.¹³ In many ways, this is characteristic of the operations of democratic centralism. As Biddulph (2018: 201) noted, the problem of governance based on democratic centralism has been excessive centralism at the expense of democracy. In the following section, I explain how the accountability mechanism operated before the accountability reform and the technical problems that have failed to prevent misconduct.

Prosecutorial Accountability 1.0

Given the entrenched internal review system and the regular spp directives that trickle down to the procuratorates, one might surmise that Chinese prosecutors are well regulated, if not overregulated. Chinese prosecutors are certainly not freewheeling legal actors exercising unfettered discretion. They are well known (or even receive sympathy from their Western peers) for being straitjacketed by regimented rules that permit little professional autonomy (Mou 2017). Notably, they are subjected to the performance evaluation system, which has long guided prosecutors’ work and is the basis for their bonuses, promotions, and disciplinary regime. Prosecutors with a record of high conviction rates, for instance, are more likely to benefit internally in the next round of tenure grants, whereas those whose clients are acquitted by the court are marked by demerits and subsequently lose their advantageous position in the next round of competitions for prizes and promotions (Li 2010; Zhu 2009). Precisely because of the hierarchically promulgated regulations ex ante, the accountability mechanisms were rudimentary and ad hoc, failing to effectively identify “bad apples” (Fan and Liu 2015). Prosecutors were generally expected to be honest, law abiding, and incorruptible. Like other state agents, those who become involved in corruption, such as bribery, have been disciplined or subject to criminal sanctions, especially in campaigns against corruption.¹⁴ As for professional misconduct, the system has shown tremendous tolerance. Over the years, hardly any prosecutors who presented cases of wrongful conviction with weak evidence are reported to have been disciplined (Hu and Zheng 2013; Su 2015; Yang 2017; Zhou 2020). What was the reason for pursuing the inquiry and holding them accountable? To answer this question, we start by identifying wrongdoing.

Prosecutorial Misconduct

Prosecutorial misconduct was first defined in the spp’s Provisional Ordinance on Accountability and Internal Inquiry into Wrongful Convictions 1998 [Renmin jianchayuan cuoan zeren zhuijiu tiaoli (shixing) 人民检察院错案责任追究条例（试行）] (hereafter, the Provisional Ordinance), the first nationwide ordinance to address prosecutorial misconduct in relation to wrongful convictions. It referred to prosecutorial misconduct as wrongdoing that involves bending the law for selfish ends in order to subject innocent people to criminal prosecution or to protect guilty individuals from criminal responsibility (Article 6). The concept was narrowly constructed and outcome oriented. For example, wrongful conviction here refers exclusively to the conviction of people for crimes that they never committed, the details of which must be verified and affirmed by a final court judgment (Article 19). Hence, a case in which a guilty defendant is deprived of a fair trial, convicted of a disproportionately serious crime, or the subject of harsh punishment does not qualify as a wrongful conviction.¹⁵

In addition to the narrow interpretation, this notion of misconduct, by and large, overlaps with the offense in which judicial officers bend the law for selfish reasons [xunsi wangfa] as described in criminal law.¹⁶ Because the unlawful action in question was already criminalized, the Provisional Ordinance carried little significance, if it was not entirely irrelevant. Furthermore, the types of misconduct enumerated in the Provisional Ordinance were far from adequate to hold rogue prosecutors to account. To be specific, it stipulated that wrongful convictions might be caused intentionally or because of gross negligence by the prosecutor (Article 2), and the misfeasance identified as misconduct consists of (1) extracting confessions by torture or extorting witness testimony through violence; (2) concealing the truth; forging, destroying, and concealing evidence or assisting any of the parties to destroy or forge evidence; and other misconduct that results in serious consequences.¹⁷ Prosecutorial misconduct comes in many forms. It is true that it was important to list these forms of misconduct in the Provisional Ordinance, such as forging, concealing, or destroying evidence and extracting confessions through torture in particular, in order to prevent prosecutors from engaging in malicious prosecution or falsification of evidence against suspects. But because prosecutors are more concerned about reviewing a case and assessing the strength and persuasiveness of evidence gathered by the police, rather than gathering evidence directly, the misconduct should be geared toward their role. In reality, misconduct is more likely to occur when a prosecutor knowingly uses perjured witness statements to secure the conviction of a defendant,¹⁸ even though the evidence is gathered by someone else.

The issue also applies to confessions extorted through torture—a prosecutor who has knowledge of police using violent methods of investigation might still use such confessions against a defendant. In a recent study on the construction of a prosecution, I encountered situations in which the suspect reported the use of torture but was simply dismissed or treated with outrageous distrust by the prosecutor. Their reports of police misconduct were rarely taken seriously by the prosecutor, notwithstanding the fact that they are entrusted with supervising police investigations (Mou 2020: 115–18). It is perhaps more important that compromised professional integrity or abuse of prosecutorial position, such as subornation of perjury (including using testimony that the prosecutor knows to be false and incorrect) and suppression of exculpatory evidence, are recognized as basic forms of prosecutorial misconduct, which is also critical in preventing miscarriages of justice. These elements, however, were not part of the loosely defined concept of prosecutorial misconduct, which is focused on consequences. In fact, an investigation of an alleged case of misconduct can be initiated only if a negative result is deemed “serious” (Article 6).¹⁹ All the challenges in defining misconduct were therefore sufficient to prevent an inquiry, not to mention holding anyone accountable.

Apparently aware of the limitations of the Provisional Ordinance, the spp modified the notion of misconduct in Prosecutorial Accountability Inquiry Ordinance 2007 [Jiancha renyuan zhifa guocuo zeren zhuijiu tiaoli (《检察人员执法过错责任追究条例》] (hereafter, 2007 Ordinance), in which prosecutorial misconduct was revised as “any unlawful or irresponsible wrongdoing during the case handling process that has resulted in substantive wrongful outcomes, procedural irregularities or other serious consequences” (Article 2). The 2007 Ordinance incorporated the types of misconduct in the Provisional Ordinance and added a list of other type of professional malfeasance, which included but was not limited to wrongful ascertainment of facts or application of law (Article 7). The 2007 Ordinance, like the Provisional Ordinance (but contrary to the new definition), took an outcome-based approach that emphasized the degree of “serious consequence” in evaluating misconduct. What actually constituted “serious consequence,” however, was left undefined. Many of the types of misconduct listed (e.g., failing to raise all relevant criminal charges or to list all codefendants in an indictment), clearly part of crime control, would have been better recognized as relevant to police/investigatory misconduct, as they were more likely to be investigatory issues, rather than matters pertaining to prosecution. Although these omissions may well be caused by negligence on the part of the prosecutor, her responsibility could be easily attenuated, given the distance between the identified “dereliction of duty” and the outcome. Aside from these two spp accountability ordinances, a number of higher-level people’s procuratorates promulgated similar guidelines to address prosecutorial misconduct that resulted in undesirable outcomes.²⁰ These local ordinances, following the examples set by the spp, framed prosecutorial misconduct in the same limited manner.

Internal Misconduct Procedures

The narrow construction of prosecutorial misconduct was accompanied by the ambiguous internal misconduct procedures, which may not be used in the first place. Neither the Provisional Ordinance nor the 2007 Ordinance clarified the precise point or way in which a misconduct inquiry should be triggered. The Provisional Ordinance stated that culpable and harmful misconduct “should be investigated” (Article 6). Similarly, the 2007 Ordinance stipulated that the prosecutor responsible for the misconduct “should be held accountable” (Article 8), adding that “chief prosecutors, deputy prosecutor chiefs, or division leaders who find prosecutorial misconduct in their work remit and consider that there is a necessity to further investigate the culpability in issue, should promptly refer the case to the relevant department” (Article 16). The relevant authority in a misconduct investigation in both ordinances apparently has considerable latitude in deciding whether to employ the procedures in the first place. Despite the strong rhetoric underscoring prosecutorial accountability, at no point do the ordinances specify the circumstances in which alleged misconduct has to be investigated (Fan and Liu 2015).

The difficulty in initiating a misconduct inquiry is somehow intertwined with the investigating authority. The appropriate authority for undertaking an internal investigation in both ordinances is a department within the same procuratorate at which the prosecutor who allegedly committed misconduct works. In the Provisional Ordinance, the investigation is within the jurisdiction of the supervisory department [jiancha bumen] or a different department appointed by the chief prosecutor (Article 20). The relevant authority in the 2007 Ordinance is not clear: the person or the department responsible for conducting the inquiry is difficult to determine. The Provisional Ordinance maintained that the allegation against an ordinary prosecutor and misconduct evidence should be managed [guanli] by the supervisory department (Article 14). In the event of allegations against the chief prosecutor, deputy prosecutor chiefs, or members of a prosecutorial committee, misconduct proceedings are to be referred to the procuratorate at the next higher level, which has to decide whether to initiate the inquiry (Article 15). Nevertheless, which department of the procuratorate at a higher level, who should lead the investigation, and which procedures are to be used were all unspecified (Zhang 2019). Locating the delegated authority within the same procuratorate as the one in which the prosecutor who is the subject of allegations works is problematic. It is tricky to conduct misconduct proceedings without prejudice if the members chairing the investigation panel are colleagues of the prosecutor.

Following the principle of edinonachalie, especially based on the three-tiered review system, prosecutorial decisions are undertaken collectively, including those that turned out to be problematic. Thus, a decision to charge someone who later turned out to be innocent could have been reached through an internal hierarchical review, meaning that the divisional leader, one of the deputy chiefs, the chief prosecutor, or the prosecutorial committee might all have had a share of responsibility in reaching that decision. The prosecutor in charge of the case might have a particular view as to how the case should proceed; but her view might be influenced, altered, or supplanted by different opinions of those who are higher up in the internal hierarchy. Moreover, collective decision-making is not limited to one procuratorate. The principle of edinonachalie suggests that a procuratorate acts as an inseparable entity, which means that the procuratorate must follow the advice of the procuratorate at a higher level if the chief prosecutor,²¹ or the prosecutorial committee considers a case with higher-level colleagues (Chu and Shao 2013; Zhang and Zhang 2020).²² Under these circumstances, it is not merely the procuratorate, but the relevant procuratorate at a higher level that is also involved if the decision is deemed to be wrongful.

In light of the collective mechanism, the 2007 Ordinance adopted a fault-based system, which can be summarized simply as: wherever the fault lies, the person responsible for it must be held accountable. Hence, if a higher-level procuratorate reverses a lower procuratorate’s suggestion that later turned out to be correct, the higher-level procuratorate prosecutors are liable (Article 11). Likewise, if a case is briefed to the prosecutorial committee, which reaches a conclusion that diverges from the initial decision of the prosecutor, and the decision of the committee is later found to be wrong, the chair of the prosecutorial committee and the specific committee members who contributed to the inaccurate outcome are held liable (Article 12). Similar principles also apply to the internal hierarchical review. The fault is distributed. Therefore, if an untenable prosecutorial decision to prosecute someone who turns out to be innocent is approved by the department leader and one of the deputy chiefs, all parties involved are jointly liable, though their degree of responsibility is determined in proportion to the fault imputed to the individuals concerned (Article 10). In a bureaucratic system in which the vast majority of decisions are documented and filed, the procuratorate has the advantage of tracing the relevant blameworthiness in the process, although occasional verbal communications devoid of written documents do exist, which makes investigation more difficult.

A Proceeding to Blame or to Protect?

The definition of prosecutorial misconduct and internal inquiries therefore both took a hindsight approach to framing and disciplining prosecutorial wrongdoing. Errors of judgment, however, do not always amount to blame worthy misdeeds. Acknowledging this, the 2007 Ordinance incorporated immunity clauses and stipulated that if no fault existed on the part of a prosecutor, allegations will not be raised (Article 13). The fault referred to here is “willful action” or “gross negligence” that has serious consequences (Article 2). In light of the stratified three-tiered review, a prosecutor would be unlikely to exercise her power in “a wanton” or “arbitrary manner” with no heed to her experienced superiors. This is, of course, not to suggest that the collective mechanism is risk free or immunized from responsibility. Quite the opposite: rather than revealing and correcting problems that lead to misconduct, the collective mechanism can systematically consolidate and perpetuate wrongful decisions.

On the one hand, the internal review system depends on the specific account provided by the prosecutor, which may not be completely objective. On the other hand, people within the system, from the rank and file to the chief prosecutor, are aware of the challenges that the prosecutor faces when dealing with a specific case. The dilemmas they face often consist of a choice between dealing with a case in accordance with the law and attending to other considerations associated with their institutional interests, such as meeting the performance targets set by the appraisal system, maintaining good relations with the police by “helping” them move a case to the next stage, and so on.²³ Prosecutors regularly seek advice from their supervisors. In so doing the pressure to make the decision is transferred and spread to the upper echelon of the procuratorate. In this process, the interests of the prosecutor are bound together with those of the senior prosecutors to whom the communication was sent and, ultimately, those of the institution. The interwoven interests between the individual and the organization, over time, nurture the prosecutor’s sense of identity. As a member of a hierarchically organized bureaucracy, the prosecutor’s allegiance to the law is subject to organizational priorities and incentives. When repeated practices are systematically transformed into an organizational culture, there will be clear resistance from within to pursuing an investigation of alleged misconduct.

This internal solidarity within the procuratorate thus makes it averse to discerning and separating individual responsibility. Prosecutors confirmed to have committed misconduct could be admonished [piping jiaoyu 批评教育], disciplined [jilü chufen 纪律处分], or subjected to criminal investigation, depending on the circumstances (Article 23). In any case, merely ascertaining prosecutorial misconduct would create reputational damage for the individual prosecutor as well as the procuratorate as a whole to the extent that everyone in it is adversely affected. As such, there is a lack of incentive for initiating an inquiry in the first place even in the event of serious consequences. Given the leeway in initiating a misconduct inquiry and the ample space for avoiding liability, it is not surprising that allegations are seldom investigated (Chen Dongchao 2000; Lan 2017; Li 2000; Xie and Zeng 2021). Among the aborted internal misconduct investigations are high-profile miscarriages of justice in which the prosecutor had charged someone with murder in the knowledge, or with a strong suspicion, that confessions had been extracted through torture (China News Weekly 2020). In their study of misconduct inquiries within the judiciary, Wang and Liu (2016) examined the internal records of an adjudicative committee between 2003 and 2012 and found that only 14.29 percent (n = 11) of the cases of alleged judicial misconduct (n = 74) were held to be wrongfully adjudicated. They noted that there was a manifest reluctance on the part of the investigating panel about pursuing the allegations vigorously; even regarding the handful of cases eventually confirmed as having involved “obvious” or “egregious” procedural irregularities, the investigating officers had attempted and exhausted all legally permitted means of downplaying or minimizing the problem before the unpleasant conclusion was reached. A finding of prosecutorial misconduct is more difficult than a judicial misconduct inquiry, in that responsibility for it can be assigned to other legal actors in the criminal process, either the police who failed to investigate thoroughly or the judge who failed to acquit an innocent person. As in judicial misconduct proceedings, a clear reluctance emerges from the entrenched culture of collectivism, which takes advantage of porous ordinances and prevents inquiries from being launched or reaching a substantive conclusion.

Individual Responsibility and the Changing Shape of the Prosecutor’s Role

By any measure, the accountability reform has been an ambitious undertaking, which entails and implicates a series of adjustments and a reshaping of institutions. At the core of these institutional changes is the expanded role of prosecutors on which the new accountability system is conditioned. The expansion of the prosecutor’s role is embodied in two dimensions. At the organizational level, the internal departments of the procuratorate have been reshuffled, and procedures for internal operations have been modified. Before 2018, a typical criminal case transferred to the procuratorate would have been passed to and processed by different departments, prosecutors’ offices, and pairs of hands before it was decided whether the case would proceed to the next stage.²⁸ Following the reform known as the integration of arrest approval and prosecution [pusu yiti 捕诉一体] in 2018, the prosecutorial functions scattered across different departments were merged (spp 2019). Rather than having separate departments to deal with certain facets of criminal procedure, prosecutors have been reorganized into teams in charge of all aspects of a criminal proceeding. These new teams are designated to handle certain types of cases, making critical decisions ranging from arrest approvals and court advocacy, to monitoring enforcement of court judgments.²⁹

This amalgamation of prosecutorial functions is coupled with the empowerment of prosecutors in the criminal process, which emerges from the evolving roles of the prosecutor. Prosecutors are no longer constrained by their traditional role in reviewing investigations ex post facto; their territory has expanded to encompass police investigations. Under the spp’s Rules of Criminal Procedure 2019 [Renmin jianchayuan xingshi susong guize 《人民检察院刑事诉讼规则》] (hereafter, the spp Rules), prosecutors are now encouraged to “offer opinions and suggestions on issues in relation to evidence gathering, fact ascertainment, application of law and investigative activity of the police in cases considered to be major, difficult and complex” (Article 256). Chinese scholars had long been supported having prosecutors direct the police in carrying out investigations, in the belief that this could be a breakthrough in regulating police investigations (Chen 1999; Chen 2005; Chen and Hao 1999; Chen and Liu 2001; Liu 2013; Yang 2019). To some extent, the spp Rules delivered on this expectation, although the prosecutor’s early intervention might not be considered as a radical paradigm shift in police investigation, as the scope is limited to “major, difficult, and complex” cases. Nevertheless, early intervention can take place on the initiative of the prosecutor, and it is up to the procuratorate to assess the nature of the cases in which to intervened (Lu 2021). Given the ample discretion afforded by the spp Rules, in the future, prosecutors might intervene in police investigations more frequently.³⁰

The expansion of the role of prosecutors does not stop there. Driven principally by the impetus to speed up the process of case disposition, prosecutors have gained greater influence through managing the system known as “admission of guilt and acceptance of punishment” [renzui renfa; hereafter, “plea leniency”]. Plea leniency enables the accused to receive a sentence reduction in exchange for a guilty plea, regardless of the type of case or the stage of criminal proceedings (Criminal Procedure Law 2018, Articles 15 and 201). Plea leniency is a systematic project that requires seamless coordination of different stages of the criminal process in expediting the disposition of a case. The prosecutor acts as the manager of the plea leniency system, with functions including but not limited to obtaining a guilty plea from the accused (which means that the accused enters an agreement to admit guilt and accept the penalty in the presence of her own defense lawyer or a assigned duty lawyer), determining the charges in the indictment, the mode of trial (the simplified or the expedited trial procedure), and the appropriate sentence to recommend.³¹ Of particular note here is the prosecutor’s power to determine the charge based on the facts ascertained as well as the recommendation of a precise sentence that takes the guilty plea into consideration (Chen 2019, 2020; Xiong 2020).³² In accommodating these procedural demands, prosecutors have taken on a role as policy maker, case manager, adjudicator, and sentencer. Accompanying their expanded role is a concern that the judicial function has been accordingly diminished and encroached on. Judicial tasks have been reduced to official certification of a guilty plea, assessing its voluntariness, and formal approval of the sentence recommended by the prosecutor.

In 2020, the number of applications for plea leniency surged, and the proportion of criminal cases with these applications increased from 20.9 percent in January 2019 to 83.1 percent in August 2020 (spp 2020b). This was largely a result of a tireless campaign by procuratorates for plea leniency, which included, inter alia, repeatedly airing programs on television to promote the benefits of guilty pleas in detention centers throughout the country and setting performance targets for local procuratorates (spp 2020c). The courts’ approval rates of sentence recommendations also increased: as of 2020, 90.7 percent of the sentence proposals advanced by prosecutors were endorsed by the courts (spp 2020a). As plea leniency becomes dominant in criminal justice, the dividing line between judges and prosecutors is less clear, as the center of gravity in criminal procedure shifts away from trials.

What does the expansion of prosecutorial roles signify? It is clear that there has been a remarkable concentration of powers in the hands of frontline prosecutors, making it more difficult to review all their decision-making in the traditional bureaucratic fashion (Yang 2020; Zhang 2019). What is also evident is that the power redistribution—whether the remolding of the internal departments, early intervention in police investigations, or the propaganda employed in promoting plea leniency—was deliberately engineered by the spp. The driving force behind these changes is procedural economy and the rise of managerialism in Chinese criminal justice, which propelled the rolling out of plea leniency within a short period (Cao 2020; spp 2019).³³ The spp’s report on the implementation of plea leniency shows a significant increase in low-level crime, which grew as a share of all crimes from 54.4 percent in 1999 to 83.2 percent in 2019. At the same time, over the same period, the number of major and violent crimes dropped from 162,000 to 60,000 (spp 2020b). The structural changes in the types of crime, as the spp explained, dictated the redistribution of internal functions and devolution within the procuratorate (spp 2020b). Since the 2015 Directive, prosecution teams or quota prosecutors have enjoyed greater autonomy to make prosecutorial decisions with less regard to administrative hierarchy within the procuratorate (Article 5). The chief prosecutor and the deputy prosecutor chiefs who signed off on official documents on behalf of the procuratorate no longer take responsibility for decisions made by the frontline prosecutor unless they have intervened in the decision-making process and made substantive changes in the initial decision (Article 10). Although the prosecutorial committee, the chief prosecutor, and the deputy prosecutor chiefs retain the power to influence individual prosecutors and make final decisions, under the new accountability regime, the decision-making process must be maintained in written records to ensure that liability can be determine and apportioned commensurate with their respective obligations in the event of an internal inquiry (Article 37).

The new accountability system thus can be seen as a paradigm shift in the sense that, for the first time, it endeavors to crack the longstanding collective responsibility of the procuratorate. In this process, prosecutors are accorded greater autonomy and authority to make critical decisions without the need to seek approval from senior prosecutors or the prosecutorial committee a majority of the time. Whereas the 2015 Directive seemingly decluttered the bureaucracy, the principle of edinonachalie and the three-tiered framework remain in place and the internal workings of the procuratorate are largely intact. In fact, according to the People’s Procuratorate Measures on the Oversight and Management of the Handling of Plea Leniency Cases [Renmin jianchayuan banli renzui renfa anjian jiandu guanli banfa 《人民检察院办理认罪认罚案件监督管理办法》] promulgated in 2020, the principle of edinonachalie is reinforced and the three-tiered review reincarnated into a case-monitoring mechanism that allows departmental leaders to scrutinize prosecutors’ work, analyze the overall handling of cases, oversee decision-making, submit selected cases to the prosecutorial committee, and report relevant issues to the chief prosecutor or the deputy prosecutor chiefs (Articles 12 and 13). Despite the elimination of the approval procedures, prosecutors’ work is still closely monitored or pored over, with the departmental leaders prepared to intervene whenever a situation requires. There is apparently profound distrust in the prosecutor’s judgment at a fundamental level, which sets great store by having a regimented bureaucracy. At any rate, the accountability reform does not advance prosecutorial independence in a meaningful way. This is particularly the case as prosecutors are put under a new system of lifelong accountability.

Prosecutorial Accountability as a Lifelong Liability

As a means of holding prosecutors accountable, lifelong liability is a highly unusual measure for addressing prosecutorial misconduct. Prosecutorial liability is not a type of liability unto itself—it should be framed within the existing sanctions in a legal framework afforded by a given jurisdiction. In US federal law, for example, the types of sanctions employed to prevent prosecutors from abusing the rights of criminal defendants encompass criminal prosecutions, employment and legal license sanctions, shaming in the media, and civil liability (in particular, vicarious liability) (Weiss 2011). What is the nature of liability concerning prosecutorial misconduct in China? Article 32 of the 2015 Directive stipulates that “prosecutors shall be liable for breaching judicial obligations and held accountable for their lifetime for the quality of the cases they have processed.” Then, Article 44 lists three ways to discipline or punish prosecutors who intentionally or negligently breach their obligation: criminal sanctions, internal disciplinary sanctions based on the Public Prosecutor Law, and Party disciplinary sanctions. These three routes are reflected in the Public Prosecutor Law of 2019. In the same way, Articles 47 and 48 of the Public Prosecutor Law of 2019 outlines three disciplinary channels for punishing misbehavior by prosecutors: criminal prosecution, Party discipline, and professional demotion. These provisions show that criminal liability, statutory liability (in relation to their status as public prosecutors), and the Party sanctions are the three devices currently used to deter prosecutorial misconduct.

The next question is whether it is appropriate and necessary to make the liability lifelong. For criminal liability, this question is less controversial: it is not uncommon for a prosecutor who has, willfully (maliciously) or negligently, committed a grave misdeed that amounts to a criminal offense, to be brought to justice, even though the misconduct in question was a historic one. An issue arises, however, with regard to statutory limitations, which can prevent the pursuit of criminal liability. Article 87 of the Criminal Law of 1997 states that crimes should not be prosecuted if the prescribed limitation period, which is based on the maximum punishment, has elapsed, the only exception being if the crime in question carries a death penalty or life sentence, in which event the spp can exercise discretion to pursue the case. Chinese laws and regulations are ranked hierarchically (Chen J 2000: 245).³⁴ Criminal Law, as a basic law promulgated by the National People’s Congress, undoubtedly takes precedence over the 2015 Directive issued by the spp. Exception can be made if serious crimes are committed by a prosecutor, who, for instance, tortures the accused or a witness and causes grave bodily damage or death. Serious circumstances like these are likely to be rare. In the majority of prosecutorial misfeasance, such as suborning perjury or destroying or forging evidence that leads to a wrongful conviction, prosecution is, pursuant to Article 307 of the Criminal Law of 1997, forbidden if the offense did not come to light within three years of the commission of crime, let alone a lifetime. Lifelong criminal liability, in this respect, applies only to a small share of extremely serious cases.

With regard to liability that arises from breaches of statutory duties (in particular of the Public Prosecutor Law), the application of lifelong accountability poses theoretical challenges. Prosecutors are public office holders, chiefly governed by the Public Prosecutor Law of 2019, unlike common employees, who are regulated by the Labor Law (Guang and Zhou 2004; Zhou 2007). As stated in the Opinions on Building Judges and Prosecutors’ Disciplinary System [Guanyu jianli faguan jianchaguan chengjie zhidu de yijian 《关于建立法官、检察官惩戒制度的意见 (试行)》], depending on the gravity of the misconduct and the specific internal management procedure, sanctions in formal disciplinary actions against prosecutors include suspension, delayed promotion, dismissal, forced resignation, and forced retirement.³⁵ It is true that the prosecutor’s judicial status, which is invariably concerns the public interest, requires different treatment from that of ordinary civil servants, necessitating strict enforcement of disciplinary action in the event of misconduct. Despite the difference, prosecutors are public servants on the government payroll and are covered by the Public Servants Law of 2018,³⁶ and their relationship to the state is the same as that of civil servants. Although civil servants are commonly considered public employees in Western jurisdictions (Blair 1958; Hemmer 2014), the relationship between civil servants and the state in China is categorized as one of agency, that is, public servants representing the state exercise public power and perform designated functions (Guang and Zhou 2004).³⁷ This legal position, in many ways, overlaps with and correlates with the accountability relationship, both of which are based on the delegation principle—that is, the prosecutor acts on behalf of the people, the principal. This relationship dictates that the liability entailed by statutory obligations cannot be lifelong, given that a prosecutor, the agent, may resign, retire, take on, or be transferred to other duties, resulting in the end of the agency relationship. The fact that prosecutors must take responsibility for their decisions does not change the nature of the agency relationship. It can be argued that while the prosecutor was in charge of the case in question, liability is attached; and this particular prosecutor should still be held accountable for decision made at the time even if she was no longer in that position when an allegation of some kind of misconduct is made. Cogent as this argument may be, it does not take into account the types of sanctions associated with the prosecutor’s position, rank, and professional welfare (e.g., pensions) within the procuratorate. For people who have already left the procuratorate, the misconduct procedure and the sanctions would have no teeth, carrying little impact on their future life. The same is true of retired prosecutors, on whom the impact of a sanction may be minimal. In this respect, lifelong liability has no legal foundation unless the text of the law states otherwise in the future.

As far as the ccp disciplinary sanctions are concerned, lifelong accountability is feasible provided that the prosecutors who were found to have committed misconduct are ccp members. The judicial institutions, including the procuratorate, have a wide distribution of Party members.³⁸ Although the precise number or proportion of prosecutors who are ccp members is unpublished, it is estimated that they make up a majority of overall prosecutorial officers,³⁹ considering that the ccp consciously recruits among the well-educated and promotes intellectuals to elite positions in key state institutions, such as procuratorates (Bian et al. 2001). Signing up with the Party is, by all means, a serious commitment. Party membership enables access to economic and professional advantages in the ccp-monopolized political system. At the same time, the Party’s emphasis on political loyalty means that allegiance is a lifetime pledge; termination of membership is often associated with political disgrace⁴⁰ and accompanied by public shaming and other damage to a person’s career (Dickson and Rublee 2000).

The specific sanctions listed in the Chinese Communist Party Disciplinary Regulations of 2018 consist of warnings, major warnings, removal from internal Party positions, placement on probation in Party membership, and expulsion from the Party (Article 8). As discussed earlier, the Party permeates the political-legal system in China. It is embedded in all state institutions such that the Party has direct access to important decision-making and mandates on issues from within. In particular, a regimented interlock exists between the internal personnel structure at state institutions (including procuratorates) and the Party system through the appointment of Party officials to key institutional positions (Li 2015). This integrated mechanism enables disciplinary measures to be enforced via a centralized chain of command and the record is maintained in the person’s political files, with a negative impact on the person’s future career development.

In light of the ccp-based political order, Party disciplinary sanctions certainly carry substantial weight and constitute a potent device for deterring and penalizing prosecutorial misconduct. In order for them to be used as a mechanism of lifelong accountability, the disciplinary measures are necessarily limited to prosecutors who are Party members. The scope of application might therefore have detrimental consequences and prejudice prosecutors who are members of the Party. Even among Party members, lifelong accountability is not a level playing field, as the disciplinary options that apply to retired prosecutors are significantly narrower, which inevitably blunts the effect of the sanctions. Taking into account all these limitations, it seems that hurdles and loopholes in various places will need to be cleared or filled before lifelong accountability can be taken seriously.

A Solution to Prosecutorial Misconduct?

In view of the feasibility of the accountability mechanism as analyzed above, one might wonder why lifelong accountability is stressed. To be sure, it is necessary to ensure that sanctions for prosecutorial misconduct are sufficient to deter future violations. Notably, in the US, a campaign to raise “the standards” in sanctions for prosecutorial misconduct was initiated in reaction to the decision in Connick v Thompson, in which the prosecutor was found to have suppressed evidence that was favorable to the defendant (Block 2018; Floyd 2015).⁴¹ American prosecutors are vested with tremendous power and wide discretion about whether to bring criminal charges against an individual. Their constitutional obligation to safeguard the due process rights of a defendant makes it critical that prosecutors refrain from intentionally breaking the law or transgressing the code of professional ethics when prosecuting a case (Bibas 2009; Green and Yaroshefsky 2016; Weiss 2011; Womack 2019). The need for prosecutors to avoid breaching their legal duty and enable a miscarriage of justice for someone accused of a crime is perhaps more urgent in China than the US, considering the tripartite relationship among the Chinese police, procuratorate, and courts. These three criminal justice institutions, commonly known as the Iron Triangle, watch one another’s backs by evaluating, selecting, editing, and rejecting evidence or information to produce a version of the facts conducive to conviction (McConville et al. 2011:377–424; Mou 2020: 15). In particular, empirical evidence has shown that the performance evaluations to which Chinese prosecutors are subject often drive them to team up with the police, helping them to manipulate flawed evidence in order to secure high conviction rates (Mou 2020: 220). Policy makers are apparently aware of prosecutors’ partisan approach in helping the police in case construction in China; some studies have analyzed the shortcomings in the role of prosecutors that have contributed to wrongful convictions (Dong 2014; Hu 2014; Ruijin Procuratorate Research Team 2015). In response, the Prosecutors Law of 2019 requires prosecutors to be bound by the facts and the law and adhere to an objective and lawful position [bingchi keguan gongzheng de lichang 秉持客观公正的立场] in performing their functions.⁴² The overarching principle of objectivity is expected to redirect the institutional culture, which militates against the postulated impartiality; the principle is also of paramount importance for addressing problems such as the system’s inefficiency in excluding illegally obtained evidence, inadequate protection of defendants’ rights, unnecessary pretrial incarceration, and failure to disclose the prosecution’s evidence and to prevent miscarriages of justice (Han 2019; Hou 2015; Long 2016, 2020; Wang 2014).

An ancient Chinese saying is: “Laws do not implement themselves” [Tufa buzuo yi zixing 徒法不足以自行]. It is one thing for the principle of objectivity to be acknowledged in the law; it is quite another for the principle to be carried out as expected in reality. As a concept, the obligation to be objective seems to be laden with great expectations. Whether and to what extent this legal obligation can actually shape the prosecutor’s role seem open to serious doubt. In this regard, the accent on lifelong accountability seems, first and foremost, to be a tactic aimed at balancing the partisan role of the prosecutor and preventing misconduct, regardless of its feasibility. Buttressing the threat of lifelong liability are the newly formed Prosecutorial Disciplinary Committees, which have been designated to investigate allegations of prosecutorial misconduct from a neutral and professional perspective (Article 49 of the Public Prosecutor Law of 2019). Established at the provincial level, the Prosecutorial Disciplinary Committees consist of representatives of the prosecutor, other legal professionals, and other parties that are involved in misconduct proceedings. They are an attempt by the spp to influence the mindset of frontline prosecutors in promoting fairness in criminal justice. However, the ability to remain even-handed is also largely dependent on the performance indicators and pressure from the top to crack down on crime, such as politically motivated campaigns to combat crime, which can be strong enough to override due process considerations (Lin and Chen 2020; Wang 2020).

As a novel solution to prosecutorial misconduct, the accountability reform begs another question that goes to the heart of authoritarian accountability—that is, what is the implication of holding prosecutors accountable for a lifetime from the perspective of the principal (the account holder)? To answer this question, it is worthwhile to trace the origin of the reform. Although it has been implemented by the spp, the political roots are found in Xi Jinping’s instruction to “unswervingly advance judicial reform,” which encouraged criminal justice institutions to take on challenges and to complete unfinished reforms (Xinhua Net 2017). As reported by Cao Jianming, a former procurator-general, the accountability reform is embedded in the political mandate to “take comprehensive measures to deepen judicial reform” [quanmian shenhua sifa gaige 全面深化司法改革] and to pursue socialist rule of law with Chinese characteristics (Cao 2017). Endorsed by the top levels of the Party-state, a road map was drawn for updating the accountability mechanism and systematically transforming the procuratorate (Reuters 2017). In this sense, the reform was in response to a call by the account holder, the Party, even though the mandate is reflected in and transmitted through the regular governance system of procuratorates. This also explains why lifelong accountability was a central issue brought up at the fourteenth plenary session of the eighteenth ccp Central Committee in 2014 and consolidated in the Party resolution that resulted.⁴³ The prompt rolling out of the blueprint (spp 2015) and the comprehensive transformation quickly carried out by procuratorates subsequently indicate that the Party is firmly reining in procuratorates and holding them accountable. The high number of miscarriages of justice that have come to light in the past few decades is detrimental to the legitimacy of the Party-state (Jiang 2016). Under Xi’s leadership, a coordinated approach by the central political power has been taken to identify avenues for tackling systemic issues in criminal justice, including ascertaining individual responsibility by prosecutors (Biddulph et al. 2017; Nesossi and Trevaskes 2017). By the same token, the accountability reform is just another example of maintaining the stability of the Party-state through legal reform to legitimize the law and law enforcement agencies (Trevaskes et al. 2014: 268).