Crimes, or Misdemeanors?

The next day, the shop assistant, who had left the bracelet on a counter, found it was missing and called police. After checking video surveillance, Xie was identified. At her home, Xie confessed to the theft, and the bracelet was found in her handbag.　

Priced at 20,000 yuan (US$2,754), the theft of the bracelet was open and shut. Xie was facing up to three years in jail and fines, as well as post-detention probation.　

But when the case was transferred to Xuanwu District People’s Procuratorate, the prosecutor was perplexed. A retired doctor, Xie had no criminal record.　

Xie was lucky. Until recently, all convicted criminals could face jail or at least a period in administrative detention in police holding cells of up to 20 days, or pre-trial criminal detention, as well as fines. Once an arrest warrant is approved by prosecutors, inevitably detention and fines follow. But in Xie’s case, the prosecutor designated her case as a non-violent misdemeanor, a new approach in Chinese justice which funnels petty offenders away from incarceration to alternative forms of punishment.

According to the SPP’s 2023 report, the crimes of murder, arson, detonation of explosives, kidnapping, robbery and theft in 2022 were the lowest for nearly 20 years. With the decline in violent crime, the number of severe sentences has also decreased.　

At the same time, the number of misdemeanor cases such as driving under the influence or telecom fraud has surged. According to the Supreme People’s Court 2024 report, drunk driving ranked first in the number of criminal cases in 2023.　

While domestic laws have not yet clarified the definition of misdemeanor, academic research and judicial practices generally regard three years in prison as the dividing line between a misdemeanor and a felony.　

Professor Liang Yunbao of the Law School of Southeast University in Nanjing said that the surge in misdemeanors is due to an increase in drunk driving, identity theft and telecom fraud. Since the revision of China’s Criminal Law in 1997, the number of misdemeanor crimes has risen from 79 to 106. 　

Dealing with the increase in misdemeanors requires a new approach by police and prosecutors, Hou Yahui, a member of the Inspection Committee of the SPP and director of the General Crime Procuratorate, told NewsChina. “Criminal procedure should transform in a direction more beneficial for national governance modernization, to adapt to the overall and high-quality economic and social development in the new era,” Hou said.　

Starting in 2023, local-level prosecutors in provinces such as Jiangsu, Zhejiang, Jiangxi, Anhui and Jilin have set up misdemeanor management centers to deal with cases separately from felony management.　

In August 2023, the SPP issued the Work Plan for Procuratorial Reform 2023-2027, proposing the “establishment of a misdemeanor management system that lays equal emphasis on criminal punishment and management.” In 2024, misdemeanor management was included in the work report of the SPP for the first time, which said that as misdemeanor cases rise, all parties are called on to promote misdemeanor management.　

Some areas have already started. At the end of May, the first “one-stop” management center for misdemeanor cases in Jilin Province was established in Yanji City. On June 15, prosecutors in Chongqing launched a pilot program to build a “one-stop” misdemeanor center in eight local areas. On June 25, a “one-stop” misdemeanor management center was established in the Yangtze River Delta demonstration zone.　

Xuanwu prosecutors in Nanjing started to explore a system of restitution where minor offenders plead guilty and accept community service. So far, 186 misdemeanor defendants, including Xie Rong, have participated in this form of community justice, with prosecutors announcing that 180 people would not face further charges.　

Shi Yan’an, a law professor at the Renmin University of China and director of the Criminal Law Science Research Center, told NewsChina that misdemeanor management is aimed at primarily reducing the number of criminal cases and alleviating pressure on the judicial system. On the side of offenders, it will lessen their punishment and benefit society by preventing potential social antagonism.

It was a moment of madness, Xie said. She was upset as she had bought a similar bracelet at the store weighing 29 grams, and wanted to trade it in for a new one. But she was told her bracelet weighed only 21 grams, and she felt cheated.　

Over the last decade, prosecutors have seen the change in types of criminal behavior. Theft cases used to be more severe such as pickpocketing or burglary, but now, many of the thefts are minor crimes such as stealing food takeouts or express deliveries.　

Deputy Attorney General Zhou Ying from Xuanwu told NewsChina that drunk driving and telecom fraud top the list of misdemeanors. In telecom fraud, Zhou said that many college graduates are tricked into working for fraudulent companies after answering what they believe are genuine job ads. Sometimes, they are unable to back out.　

“Addressing such cases, we wondered if we could give them a chance to repent,” Zhou said. “If they are convicted, they could be driven to the margins of society instead, and this will be an additional burden and cost on social governance.”　

Several prosecutors NewsChina interviewed agreed that not differentiating between misdemeanor and felony cases is not the best path forward.　

Miao Shengming from the Procuratorial Committee of the SPP told media during the two sessions in 2024 that, as misdemeanor cases rise, the SPP takes “making fewer arrests, fewer prosecutions and less detention according to law” as a specific requirement for handling misdemeanor criminal cases.　

For example, under the new rules on dealing with drunk driving rolled out at the end of 2023, offenders are exempt from prosecution if the offense is not deemed as severe by police. For the first six months of 2024, Chinese prosecutors charged 171,000 individuals for suspected dangerous driving offenses, marking a decrease of 38.7 percent from the same period last year, the SPP said on August 6.　

Xu Jia believes that the intention of prosecutors is to make every effort to resolve social conflicts, reduce social confrontation, repair social relations and help people involved in crimes return to society.

All criminal cases undergo a diversion process to separate simple cases from the complex, and cases with fast resolution from slow ones. Zhou Ying said cases screened for quick adjudication are those in which the statutory sentence is less than three years in prison, criminal detention or probation, in addition to fines.　

Cases like Xie’s with a blue stamp enter a quick judgment procedure, ones with a black stamp go into a simplified procedure and those with a red seal are dealt with under normal prosecution.　

Xuanwu prosecutors take around 10 days for a blue stamp case, while red stamp cases take more than a month. Through the intensive case handling mechanism, 30 percent of their prosecutors handle over 65 percent of criminal cases, and conduct “one-stop handling” of cases, shortening the average case handling period, and the remaining 70 percent of criminal prosecutors concentrate on difficult and complex cases.　

Prosecutors at Xuanwu started using a community sentencing approach in June 2023, which is similar to the pretrial diversion program in the US, Professor Liang said. This allows non-violent offenders to complete community service and attend programs and classes instead of being prosecuted to reduce recidivism.　

All types of people who committed misdemeanors can participate in community service justice, Liang said.　

Defendants work in two types of social public service, assisting in communities by providing traffic assistance, garbage classification, river and protection patrols, caring for seniors living alone, and environmental sanitation maintenance. The other type is offering professional services according to their personal expertise.　

Under the misdemeanor management program, Xie Rong was required to do 120 hours of community service in Xianju Yayuan Community in Xuanwu District, where she worked in a nursing home due to her medical background. Xu Jia said that the length of the community service depends on factors such as the circumstances of the crime, attitude when confessing, offering compensation and gaining victims’ understanding. For example, if a prosecutor had recommended 30 days in detention for a misdemeanor, the defendant could do a minimum of 30 hours community service, and a maximum of 120.　

From June to September 2023, Xie did 180 hours of community service, volunteering to do more than was required, and when it was over, she received notice that her case was settled.　

Sometimes, it does not work. A 60-year-old retired college employee, whose license was suspended for drunk driving, but who was not prosecuted, continued to drive. He was fined again and sentenced to 30 days in detention.

Xie Rong’s case was accepted by Xuanwu District Procuratorate in March 2023, and it was finalized and closed in August after she did her public service. Zhou Ying said that the average handling time of misdemeanor cases is 68 days, which is much longer than the handling of misdemeanor cases with the expedited procedure.　

Lack of coordination between different places across different provinces and cities poses challenges for linking social public service with misdemeanor non-prosecutions. Some people who committed misdemeanors in Xuanwu, but who were not officially registered in that community, are required to return to their registered community or village to serve the sentence and to be monitored. But not every place is set up for this, and if offenders cannot find an acceptable place to do community service, they have no choice but to face prosecution, and perhaps imprisonment.　

More importantly, there is still no legal basis for non-prosecution being linked to social public services, and no top-down instructions on how to establish such a program.　

For the moment, there are various attempts to explore such a program across the country, which may drive changes from the bottom-up in the future.　

Wang Fenghua, executive deputy secretary of Xuanwu District Political and Legal Committee, told NewsChina that so far over 200 defendants who committed a misdemeanor have participated in community service. In Wang’s opinion, as they gain more experience in dealing with cases, they will be able to develop a more complete system and standards for misdemeanor management.　

However, misdemeanor management is an issue that demands increased cooperation between police, prosecutors, courts and the judiciary department. There are still big gaps in ethos among these public institutions.　

China’s Supreme Court recently issued guidance on a case. The SPP said that a man surnamed Zhu in Kunming, Yunnan Province stole 16 pot plants over three occasions from a community member’s compound. The total value of the pots and plants was 98 yuan (US$14). Wuhua District police placed Zhu on file under suspicion of theft, and he was placed in detention the next day. The police station requested an arrest warrant from Wuhua District prosecutors.　

While the prosecutor concluded that Zhu did commit multiple thefts, the overall value was low. After Zhu was discovered, he returned the plants and compensated the victim, so his crime was a misdemeanor that did not cause significant harm and the arrest warrant was denied.　

In order to strengthen cooperation among different public agencies in handling misdemeanor cases, Xuanwu District has established a joint conference mechanism that allows stakeholders to reach a consensus through discussion. Zhou Ying said that for misdemeanor management, cooperation between departments is normal now.　

Prosecutors emphasized that misdemeanor management is a systematic process, and apart from requiring cooperation between agencies, it also needs cooperation among different parties such as civil affairs bureaus, education providers and communities.　

Zhou believes the system has a common goal to ensure that people who committed misdemeanors can better return to society and minimize the population of societal miscreants.　

According to Hou Yahui, the priority for the SPP is to clearly define the boundaries between crimes and non-crimes, legal violations and criminal deeds.　

“We should, for example, based on the experience gained from management of drunk driving, strengthen research on criminal standards and crime management toward misdemeanor cases such as involvement in telecom fraud, concealing illegal income, illegal fishing and illegal poaching,” Hou said. “We will improve the hierarchical management mode for illegal criminal activities, so we can enhance social harmony and stability,” he added.