The Study On Commutation And Parole Procedures

The implementation of penalty, the final stage of national criminal power, greatly affects the overall effectiveness of the criminal power. In the penalty implementation system, alteration of the penalty implementation reflects the profound essence of the correction and defense of the social community, and therefore, it is of more significance, as compared with other enforcement systems. Basically, the need for alteration of penalty implementation lies in the purpose of the system, to punish and redress and eventually alter the offenders into law-abiding citizens, which is the goal of social defense. Meanwhile, alteration of penalty implementation is based primarily on the real variables of dangerousness, not on the dangerousness and viciousness of the crime committed, and therefore it is enforced around the declared penalty. As the most important alterations of the penalty implementation system, commutation and parole are in order to break the punishment-centered execution system and construct a rehabilitation-centered system. With the help of multi-forces, the offenders will be useful to the society. The procedure safeguards the functions of commutation and parole. At the same time, commutation and parole procedures have their unique values such as the protection of justice and human rights. Therefore, a scientific, legitimate and feasible procedure for commutation and parole appears to be particularly important. Accordingly, the article discusses on the procedures of commutation and parole related, in order to facilitate the legislation and practice on commutation and parole procedures. The article comprises an introduction and five chapters, altogether 180,000 words.The introduction mainly sets forth the main issues of the article, and studying status and methods in it.The first chapter is introduction of commutation and parole procedures. It points out that commutation changes the content of penalty implementation, including the following two cases:the first is to shorten the imprisonment term; the other is to change the heavy penalty into a light punishment. And parole is an alteration of the penalty implementation system which means the national power organs liberate the offenders ahead of the imprisonment term, according to certain procedures, if the organs do have evidence to prove the possibility of repentance of the offenders. Meanwhile, the commutation and parole system has the following functions, such as to help offenders to rehabilitate, to help implementation organs to maintain a better supervision order for and to reinforce the implementation effect, etc. Compared the procedures between commutation and parole, most scholars consider they are the same based on the identical theory basis and character, while some believe they are different. The differences lie in the administrative character and the judicial tendency of both commutation and parole. Meanwhile, the commutation and parole procedures are identical, different from general conviction, or sentencing, or general administrative procedures. The difference lies in the object and the commencement of the proceedings:on the trial process, the object is the prosecuted defendant’s behavior and the legal evaluation of his actions; while on parole commutation process, the object is the offender’s dangerousness and the risk of recidivism. On commencement of the proceedings, the judging body is not entirely passive. It is more of a consultative and collegial process in commutation and parole procedure, without the typical confrontation compared with general process. The judge shall have greater investigative powers and exercise in a special way. Standard of proof in commutation and parole procedure is always the dominant standard or reasonable one. Meanwhile, the commutation and parole procedure is different from normal administrative procedure. It is of more social participation and focusing on social surveys. Participants such as criminals usually have the right to choose. The commencement and ending of the proceedings is not entirely dependent on the administrative authority. In civil law countries, the commutation and parole process is always the special proceedings. While in Anglo-American law countries, it is an administrative procedure mixed with judicial procedure elements. As for the theoretical basis, there are the Grace Theory, the Rewarding Theory, the Right Theory and the Implementation Penalty Means Theory, etc., in the nature of the commutation and parole procedures. The Grace Theory proposes that the commutation and parole procedure is a blessing of the state, judging by the offenders’behavior in prison. They shall be commuted or paroled if they are considered well-behaved and has small likelihood of recidivism. The Rewarding Theory believes that it is a state rewarding for culprits. The Right Theory claims that it is a right for criminals, as a result of human rights protection in criminal proceedings. In addition, the Implementation Penalty Means Theory proposes that the procedure is for the re-socialization of the culprits. It is a soft way to implement free penalty. The Rewarding Theory and the Right Theory are held by most scholars at the present. On the other hand, as the nature of commutation and parole power is concerned, there are mainly three theories the Executive Power Theory, the Judicial Power Theory and the Criminal Enforcement Powers Theory, among which the Executive Power Theory and the Judicial Power Theory are debated most intensely. The Executive Power Theory is based on the executive power category, while the Judicial Power Theory mainly focuses on the relationship between criminal enforcement powers and jurisdiction power. The commutation and parole procedure has both instrumental and independent values, including justice, human rights, order and efficiency. As for the priority of the values, the commutation and parole right gives way to social security with regard to the protection of offenders’basic human rights, because of the dangerousness of the offenders. And as for the legitimacy of the procedures, natural law and justice are closely linked, which demonstrate the absolute truth and ultimate value of the Theory of Justice. Born from natural law, legitimate procedures reflect the basic procedural guidelines of hearing, and its express of rights and control of power has become a universally recognized basic norms of the country. The legitimacy of commutation and parole procedures ensures a lawful and reasonable parole (or withdrawal) decisions according to the change of the offender’s Dangerousness. At the same time, the procedures itself contains self-government, ration and justice, thus it still has control of power and protection of human rights significance, even if the main parties of the procedures are criminals. To ensure the neutrality of the ruling party and the protection of the participant’s right of submission is the minimum requirements of due process. It should neither be trailed only by document nor hearing without document in adjudication procedures. In withdraw cases, offenders’commutation and parole rights should be protected. But the protection is not enough because of the constitutional status of criminals, as most don’t consider criminals have the same rights of other citizens. Therefore, the strength of personal confrontation affected.ChapterⅡsummarizes the commutation and parole procedures model. It is divided into three models:Administrative, Judicial and Committee model. The Administrative model is further divided into execution agency with sole power model and administrative decentralization model. Execution agency with sole power model means the execution agencies have the full decision-making power to have commutation and parole, and the draw, decisions and implementation procedures are executed by the execution agencies. Construction of the basic theory is the penalty for the implementation of the major changes to the theory. Many commutation and parole procedures especially in commutation procedures in other countries adopt this model. Administrative decentralization model means procedures of those who draw the proposition separated from those who make the decision. Mostly, executive operators are proponents of offenders released on parole sentence. While the heads of State, minister of justice or the governor, and other administrative officials, are decision-makers of the commutation of parole. Thereby the administrative hierarchy and internal oversight procedures are increased. In general, the Administrative model is characterized with that the procedures is decided by the judicial administrative organs, that the protection of criminals’procedural rights is not enough, and that there are more document procedures. In Judicial model, it depends on the judge to decide whether to grant a commutation and parole of offenders. Judicial model is further subdivided into two models: the specialized judge model and ordinary judge model. Specialized judge model refers to that the court sets a specialized judge in charge of the commutation and parole cases; ordinary judge model refers to that the court sets no specialized judge and the commutation and parole cases are dealt by the regular judges. Professional implementation judge is more conducive to the accumulation of commutation and parole cases experience and the exploration of the judicial application of the law. Judicial model is leading by jurisdiction, protecting the basic procedures rights of participants, and full of specific procedures. The Committee model refers to that the commutation and parole is decided by the committee, and its main body is the Parole Board. The parole board can be divided into three categories:parole board in correction system, semi-independent parole board and the independent parole board. The Committee model has the following basic characteristics. It is suggested by the execution authorities and decided by the committee; members of the committee composed are diverse of strong social connection and profession; participants obtain the minimum standards of due process protection of the rights to conduct a hearing to review. The Administrative model and the judicial model both have advantages and disadvantages. The Judicial model is more independent, thus can provide for offenders more effective rights protection; while Administrative model focuses more on efficiency, thus be more familiar with the correcting transaction itself. Therefore, the lack of justice weakness of the Administrative model can be corrected by judicial review; while the relative lack of efficiency of the Judicial model can be corrected by adjustment of the trial and procedures; and a fair decision is ensured with further complement and advisory correcting advice. Meanwhile, the Committee model enhances its neutrality by amending the Administrative model, to achieve procedural fairness. In addition, the Committee model is much closer to correctional institutions, which makes evidence of the conclusion more reliable, thus it can, to some extent, compensate weaknesses of the Judicial model. However, the Committee model can hardly draw the advantages of the other two models. Different models lie in the differences of legal traditions. In Anglo-American law system, parole is considered as administrative measures in general. It is decided originally by the Prison Sector, then by Specialized Parole Board. In contrast, in the civil law countries, the execution system associated with the jurisdiction is included in jurisdiction, due to the strict separation of powers theory. The separation of executive power and judicial power in civil law countries is mechanical. First of all, it rules out the possibility that the ordinary courts exercise to review of constitutionality rights. And it is generally emphasize on collective rights and social stability, as well as on the maintenance of the court’s authority and judicial decisions of res judicata. Therefore, the proposing of commutation and parole is more conservative, and the commutation and parole procedures are included in the scope of traditional judicial proceedings. In the common law countries, the separation of powers checks and balances is a hybrid. The ordinary court has the review of constitutionality rights. Based on the priorities of individual rights protection, commutation and parole procedures are included in administrative or quasi-judicial procedures category. Civil law countries emphasize more on the committed sin, while the common law countries pay more attention on the future defense. As commutation and parole procedures concerned, efficiency is prior in common law countries, while justice is the primary value in civil law countries. In addition, the operation of power in civil law countries is bureaucracy and policy implementation style, while in common law countries, it is collaborative.Chapter III is the exercise of commutation and parole procedures. It is mainly divided into three areas:the exercise body of power, rights protection and specific operation. The exercise body of power mainly includes execution organs, courts, parole board, the prosecution sector and other social organizations and individuals assumed certain functions. In common law countries, the body is always the execution organs, the chief executive and the parole board; while in civil law countries, it is always the execution organs, the prosecution organs and the courts. Under the protection of human rights trends, offenders gradually gained the position as a body, with the dignity and legitimate rights and interests of his corresponding procedural rights. The specific content of procedural rights, includes the right to apply for commutation and parole, the right to know the procures, the right to apply to avoid, the right to submit evidence, the right to rebut the adverse evidence, the right to state, the right to get legal assistance, and the right to get procedures remedies. The offender’s right to participate and remedy are generally protected in almost all the countries, but the right to counsel and the right to cross-examine the witness are not generally protected. Meanwhile, the level of protection of the offenders’rights deeply reflects different perceptions and attitudes towards the nature of commutation and parole. Pays more attention to the right of commutation and parole, then the offender’s security level will rise and vice versa, will drop. In the protection of the victims’rights, it should keep balance on protection of the rights of offenders. In addition, the victims’assistance should be enhanced. In specific operation of commutation and parole procedures, the preparation and proposing procedures include the following aspects:expiration date notice, parole plan and preparation procedures, meet and investigative procedures, official proposing, the offenders’relief. Adjudication procedures can be divided into two categories, based on different models:the hearing process and the trial proceedings. The hearing process consists of pre-hearing preparation, presidency of the hearing officer, view-expressing and evidence providing, investigations and advice-taking, decision-making, signature of parole agreement, and the relief of right; The trial proceedings includes trial preparation, the right to inform, court investigation, views hearing, decision making and relief of right. Supervision procedures includes routine supervisory procedures, such as reporting procedures, home visits procedures, investigative procedures, counseling procedures; and emergency disposal procedures, such as detention, searching, arresting; and supervision changing process, such as warning and changing the supervision conditions. Various procedures have different conditions of proposing, contents and functions. The revocation procedures include prison disciplinary procedures, subsidiary revocation procedures and judicial procedures by parole board. In parole revocation procedures, the supervision body is generally responsible for the proposing of parole. The proposing process includes three parts:arresting the parolee and escort back to jail, parole violation notification procedures, and adjudication start procedures. American two-step procedures represents the revocation procedures in common law countries, which enhances the protection of offenders’ human rights, compared to adjudication procedures. But in civil law countries, the revocation procedure is less formal, and with little difference from adjudication procedures. The difference lies in the basic arguments:the commutation and parole rewarding theory in civil law countries and the right incentive theory in common law countries.Chapter IV examines the history of Chinese commutation and parole procedures, reviews and analyzes the status quo. Originated in the late Qing dynasty, the procedures was legislated in the Northern Warlords and Kuomintang administration, but it was not carried out. In New Democratic Revolution Period, commutation and parole procedures specification system is gradually completed, at the same time, the system substantially transformed the offenders which are a useful experience. After the founding of New China, commutation and parole procedures had mainly gone through three steps:the start-up period, stereotypes period and the rapid development period. Overall, the history of Chinese commutation and parole system is short, and the system has much weakness, such as lack of whole legal norms of the system, disorder in specific procedures. To give a rational reflection of Chinese current commutation and parole procedures, there are some errors, loopholes and gaps not only in concept level, levels of legal norms, but also in judicial level and supporting systems. The reasons lie in the following three. Firstly, deeply rooted concept of rewarding penalty makes the restrictions of powers disordered. Secondly, the main body is disordered in distribution of power. Judicial power and executive power in commutation and parole procedures, and supervision power and supervised power are not in balance. Thirdly, the supervisory power of the prosecution branch is comparatively vulnerable. Due to the uncorrelated in Chinese supervisory system, the prosecution branch has no litigation power. Therefore, ambitious supervisory powers of the prosecution organs actually cause a series of problems, such as ex post facto, unitary, and static. Supervision and participation are confused, the prosecutors lack investigating measures and means. In view of these problems and weakness, our theoretical circles and practitioners focused on three aspects by improving proposing procedures, trial procedures and supervisory procedures. They put forward some new arguments, such as to give the prosecutors the power to propose the procedures, to improve the rights protection of participants, to innovate and establish the executive chamber, public hearings, the prosecution synchronization and supervision mechanisms and procedures.Chapter V proposes specific ideas and suggestions on reconstruction of Chinese commutation and parole procedures, based on our local resources, and advanced foreign experience. Firstly, the philosophy of reconstructing Chinese commutation and parole procedures is to ensure fair procedures, strengthen protection of human rights and enhance social participation. If we migrate administrative model, the risk that administrative power swallows the rights of individuals will greatly increased, due to that the administrative acts in China can not be sued. On the other hand, in the internal relationship of our criminal power, Chinese trial power is weak than administrative power. If we follow administrative model, the situation will deteriorate. Meanwhile, it is more difficult for procuratorial authority to supervise in administrative model. What is more, China does not fully comply with the Administrative model for lack of the legal concept of limited government and primacy of individual rights protection. Therefore, it can be prejudged that migration of the administrative model will be "unable to adapt". Migration of parole board will also face similar situation. Thus, to retain the judicial model, and improve the procedures in our country would be a reasonable direction of reform. More attention should be paid on optimizing structure, highlighting the protection of the rights, and improving the specific procedures. Overall concept includes enhancing external supervisory procedures for execution organs such as the prison, like constructing a strict administrative surveillance mechanism; strengthening judicial supervision; adding new penalty execution division. At the same time, it is necessary to establish a parole supervision system, of which main body is the penalty execution organization in Bureau of Justice community, fully taking advantage of the supervisory help of the community. And it is necessary to add new revocation procedure. There are two ways to improve Chinese commutation and parole procedures, to repair within the existing legal framework and to fundamentally reform. To repair the existing procedures, we should improve the assessment system; add avoidance procedure and hearing procedure. Still, a new procedure to assess the offenders’behavior should be set up. A specialized penalty execution changing tribunal should be set up to deal with the commutation and parole cases, taking in a certain number of experts or jurors. Executive council, consisting of execution personnel and experts, should be set up. At the same time, a committee called reintegration into the society, which helps the ex-offenders to rehabilitate, should be set up to help the court to deal with the correcting supervisory matters, which is composed of community penalty enforcement officers, and members of conservation organizations. In addition, a corrective specialist library is needed for the judge to assess the offender’s dangerousness and personality. To build a consulting type of commutation and par ole procedures and retain the existing system combined with the publicity procedures. After criminal’s statement, the execution authorities shall draw a commutation and parole opinion, and provide relevant evidence. Victims have a right to know, the right to present evidence, the right to state their opinion, and have the right to put questions to witnesses and to present views, in the judge’s permission. The judge will give a verdict in consultation with the executive council. At the same time, Prison Administrative Bureau shall be changed into Prison Department of Corrections, setting up two branches in it:the Prison Department of Corrections, in charge of prison execution, and Community-based Penalty Execution Bureau, in charge of execution. It is helpful to expand a wide range of social subjects involved in parole supervision. The parole revocation procedures should be improved, which should be more rigorous and formal than the parole procedure. At the same time, in order to identify the facts, the prosecution body may apply at any time to any request for an execution authority to request any documents and criminal files, and may apply to the investigations and evidence collection, survey the scene and arraignment of prisoners, check the venue for custody of criminals if it is necessary. It shall strengthen the views of the prosecution to correct the legal rigidity. In the fundamental innovation aspect, a new parole procedure should be created. The prosecution authorities command the execution branches. The prosecution authorities suggest and the court give a verdict. Build up a right to know procedure and a pre-announcement procedure. Objection to publicity shall be executed by the supervisory council. At the same time, is the offender proposed an application and the execution branch did not suggest, the supervisory council has the right to investigate. The prosecution organ shall get into investigate once an application is received. If they have certain reasonable doubts on the experts’given assessment about the offender’s dangerousness reports, they can ask experts to explain and even to reproduce if necessary. Except for special condition, the prosecutors should meet the offenders, asking advice from the victims, if necessary. In the case of commutation and parole, the procurator cites the evidence; criminals, victims and other participants conduct cross-examination of the evidence; the judge exercise investigative power by asking, identification, and searching, etc, and to give a verdict based on the facts. The procurator has the right to protest; the offenders have the right to appeal; and the victims have the right to apply to the prosecutor to protest. After the verdict of a parole, the offender shall sign a parole agreement with the court, to specify the supervisory conditions, and the consequences of breach of supervisory conditions. In the testing period, supervision of the offender is carried out by the executive organs commanded by the prosecutorial agency. The supervisory body is composed of community executive organs, as well as the police department and other private protection organizations. Supervisory procedures mainly include the report procedures, reporting procedures, home visits procedures, investigative procedures, inspection procedures, oral or written reprimand procedures, changing parole supervisory conditions procedures, and emergency detention procedures, etc. In revocation procedure, the commutation and parole revocation should be reported to the prosecutor by the execution personnel, and the prosecutor presides the hearing. The full court conducts a public trial, and implements the principle of direct speech. It should set a pre-trial period of preparation, and the prosecutor discloses to the offender and the lawyer all the evidence materials that propose to revoke. The judge should consult the punishment executive committee in making a verdict. The offender may appeal, the prosecutor may protest, and the victim may apply to protest as to the judge’s verdict.