Equality In Criminal Justice

Although the conception of equality is regarded as a principle both in the constitution law and in the laws of criminal justice in China, the specific connotation and relevant requirements of the equality theory in criminal justice have not been studied thoroughly and systematically. When the discussion of equality theory is prosperous in other disciplines of social science, the conversation concerning equality in the field of criminal justice is still at the stage of simple understanding and feeling originating from our daily life. However, the legislation and administration of criminal justice can never be based on such simple but instable understanding of equality. This dissertation is trying to seek for a theory of equality which is desirable and effective to the design and implementation of our criminal justice institutions, and to explore the direction of future reform in these areas according to the existing problems in our current criminal justice institutions and with reference to the relevant institutional elements abroad. This dissertation consists of four parts, including the introduction, the theoretical issues, the practical issues and the conclusion, among which the second and third parts compose the main body of this dissertation.The discussion of theoretical issues comprises two chapters focusing on the origin and development of the idea of equality, the theory of equal opportunity which will be used as the bedrock in this dissertation, and the general theories of the equal opportunity in criminal procedure. The essential objective of this part is to introduce and translate the theory of equal opportunity into the research field of criminal procedure.Chapter I Equality and Relevant Concepts. This chapter firstly analyzes the definition of equality and the origin of the idea of equality, on the base of which the history of equality theories are explored and their characteristics are examined, with the conclusion that the conception of equal opportunity has a stable position in and acts as the threshold of the framework of the theories of equality. Then, as seeking for another clue, this dissertation compares the equality with the other values and finds that the equality of opportunity is on the balance point of these values. In spite of sharing the name of“equality”, it expresses the requirements of several fundamental values, which indicates that it is the very intergradation of equality and other values. Accordingly, the dissertation regards the theory of equal opportunity as the theoretical foundation of this study. Moreover, this chapter explains under what circumstances the equal opportunity theory is connected with the criminal justice and the meaning of the terminology“equal opportunity”in this dissertation: (1) the equal opportunity theory is connected with the criminal justice both in the macro-context and in the micro-context. In the macro-context, the equal opportunity in criminal procedure is one of the essential components of social justice, i.e. the system of criminal justice is an indispensable part of the framework of human society. The equal opportunity in criminal procedure influences the living, competition and development of each individual in the society. In the micro-context, the equal opportunity in criminal procedure requires that each individual involved in the criminal procedure have equal opportunity of effectively using his procedural rights and taking advantage of the relevant specific institutions. It has no macroscale nature as the equal opportunity under social justice theories has, but will have an indirect impact on the latter. (2) The dissertation uses the concept of equal opportunity at two different dimensions: formal equality of opportunity and substantive equality of opportunity. The former reflects mainly the passive requirement pertaining to non-discrimination, while the latter primarily focuses on the active requirement,“leveling the playing field”.Chapter II General Theories of Equal Opportunity in Criminal Procedure. This chapter investigates the general theories of equal opportunity in criminal procedure based on the analysis in the previous chapter. It lays out the factors that affect the equal opportunity in criminal procedure, including the diversity of individuals, the subjective status of the judiciary and the police, and the objective effects of the institutions as well, and then anatomizes to what extent the functions of criminal justice system may satisfy the requirements of the conception of equal opportunity, with the conclusion that there are various systems with different functions in variety of areas under the framework of human society, and that as far as the conception of equality is concerned, the mission of criminal justice only has something to do with the equality of opportunity. Furthermore, the strength and the effect are dissimilar at those two dimensions mentioned above. The guarantee of formal equality of opportunity is basic and required, which demonstrates that the criminal justice system indeed abide by the conception of equality before the law, and that no discrimination originating from any irrelevant factors should has an impedient impact on the procedural rights of individuals. On the other hand, the effort toward the substantive equality of opportunity, which represents the latest tendency of the theory of equal opportunity, is a further and advanced standard. This standard involves the state action pertaining to provision of legal aid to those individuals who have deficiency of effectively using procedural rights. Accordingly, this chapter analyzes how the conceptions of formal and substantive equality of opportunity, respectively, exert influence on the design and implementation of criminal justice. The last part of this chapter studies the general institutional elements of criminal procedure required by the theory of equal opportunity, including the diversity of the authority, the obligation of notice, the regulation of discretionary power, the redistribution of social resources in criminal justice system, and the active participation of NGOs. These institutional elements underlie the whole process of criminal procedure, not only certain particular phases. Consequently, they are discussed in this part of the dissertation as the common elements consistent with the theory of equal opportunity.The discussion of practical issues comprises six chapters, from Chapter III to Chapter VIII, illustrating the contents concerning equality in the international standards and the criminal procedure principles in China, on the basis of which the last four chapters consider the theory of equal opportunity as the theoretical foundation and research method, choose the equal opportunity of the accused as the specific point, anatomize the problems existing in some institutions in criminal procedure, explore the causes, and elicit the relevant proposals.Chapter III Idea of Equality in International Standards. This chapter classifies the principles of equality in the international standards, and demonstrates that these principles can be divided into four categories: the general provisions (auxiliary clauses of anti-discrimination), independent provisions of the right to equality (“equality before the law” and“equal protection of law”), provisions as to certain classification (minor groups due to gender, race, ethnic group, age, disability, etc.), and special provisions of the equality in criminal procedure (the equality before the court, in custody, under non-custodial measures). This chapter makes some analyses and comments on those above-mentioned forms of international standards concerning equality.Chapter IV Equality of Opportunity and Criminal Procedure Principles in China. This chapter examines the principles of“equal application of law”and“right to use native language in proceedings”and their relationship with equal opportunity. As far as the former is concerned, this chapter compares it with the principle of“equality before law”and the principle of“procedure under law”, and analyzes the relationship between the conception of equal opportunity and four principles (“equal application of law”,“procedure under law”,“due process”and“equal protection”). As to the latter, this chapter discusses the principle per se and beyond, the focal point of which is the capability of fluent communication in criminal procedure. The further discussion is about the connection between the right to interpreter and equality of opportunity as well as the institutions related.Chapter V Equal Opportunity of the Accused and Non-custodial Measure Pending Trial. This chapter explores the relationship between non-custodial measure and equality of opportunity, and implies that the potential factors affecting equal opportunity of the accused include both the standards and the approaches of the application of non-custodial measure. Aiming at trying to resolve the practical problems such as excessive requirement of being guaranteed pending trial and difficulty for foreigners to be guaranteed pending trial, this chapter investigates and refers to the relevant institutions abroad, and tries to provide some proposals. Chapter VI Equal Opportunity of the Accused and Legal Aid to the Accused. This chapter analyzes the relationship between legal aid to the accused and equality of opportunity, and elicits that the potential factors affecting equal opportunity of the accused include the strength of discretion in providing legal aid, the caprice of the officials, the counsel-client relationship, the time of receiving the case, the lawyering skill, etc. In order to resolve the practical problems such as the low rate of obtaining legal aid by the general indigents, the caprice of the legal aid organizations, the deficiency of the composition and capacity of the legal aid counsels, the gulf between counsels and their clients, etc., this chapter then examines and refers to the relevant institutions abroad, and tries to provide certain advices.Chapter VII Equal Opportunity of the Accused and Discovery. This chapter studies the connection between discovery and equality of opportunity from the viewpoint of the equal opportunity of individuals playing the same role in criminal procedure (not from the viewpoint of equality of arms between the prosecutor and the defense), and elicits that the potential factors affecting equal opportunity of the accused include the initiation models of discovery, the scope of defense discovery, the interval between discovery and trial, etc. So as to resolve the practical problems in China, this chapter then explores and refers to the relevant institutions abroad, and tries to provide suggestions.Chapter VIII Equal Opportunity of the Accused and Criminal Reconciliation. This chapter investigates the connection between criminal reconciliation and equality of opportunity, and concludes that the potential factors affecting equal opportunity of the accused include the position of financial compensation on the scale of reconciliation manners, the alternative possibility of financial compensation, the auxiliary institutions of leveling the playing field so as to help the indigent accused to take advantage of criminal reconciliation, etc. For resolving the practical problems in China, this chapter then explores and refers to the relevant institutions abroad, and tries to make contribution to the design of future institution of criminal reconciliation.