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2019-01-07 11:38:25 Voices

Last September, a 20-year-old graffiti artist was detained by police in southern Guangdong province’s Zhaoqing City and charged with “intentional destruction of property” — defined as an intentional act of vandalism that causes more than 5,000 yuan ($730) in damages. These charges were quickly dropped, however, after lawyers for Ding Man — a pseudonym given to the artist — questioned whether the damage done had truly exceeded this sum.

Yet, this slick act of lawyering may have inadvertently doomed their client. Rather than admitting defeat, prosecutors instead upgraded the charges against Ding, vowing to try him for “picking quarrels and provoking troubles” instead. A significantly more serious crime, “picking quarrels” paradoxically has a lower minimum threshold for pressing charges — just 2,000 yuan in damages.

If “picking quarrels and provoking troubles” sounds familiar, that’s because it’s become one of the most well-worn statutes in China’s criminal code. Used to prosecute anything from undesirable online speech or advocacy to petty vandalism, public temper tantrums, and physical assault, the charge is what Chinese legal experts refer to as a “pocket crime.” This catch-all offense is so broadly defined and ambiguously worded that prosecutors can apply it to almost any activity they deem undesirable, even if it may not otherwise meet the standards of criminality.

But while prosecutors and officials make frequent use of pocket crimes, critics complain that obscure, ambiguously drafted laws trap citizens. When seemingly almost any behavior — no matter how benign — could qualify as “picking quarrels,” everyone becomes a potential troublemaker.

Pocket crimes have a long history in China. For centuries, imperial officials had the authority to charge individuals with crimes of “inadvisable behavior” — a name given to a range of activities which, despite not technically being illegal, were deemed undesirable. More recently, the go-to pocket crime was “hooliganism,” which, up until 1997, was used to punish people for anything from hosting unauthorized gatherings to homosexuality. During the 1980s, strict law-enforcement campaigns saw draconian punishments meted out for a wide range of behaviors that today would be considered benign. In the early 1980s, a middle-aged woman named Ma Yanqin was executed after being convicted of “hooliganism.” Her crime? Throwing risqué dance parties at her house.

Other than vagueness, pocket crimes are most often criticized for the way they’ve warped the country’s sentencing standards. “Picking quarrels,” the charge that has come to replace “hooliganism” in prosecutors’ toolkits, carries with it a maximum sentence of up to five years in prison for first-time offenders. But because the charge is commonly applied to activities that aren’t technically illegal, or ones that are too minor to meet the legally defined standard of criminality, its usage can result in unjustly long sentences being meted out to small-time offenders.

Prosecutors’ reliance on pocket crimes actually incentivizes criminals to do more damage, so as to incur a lesser sentence.

The above-mentioned Ding Man case offers an instructive example. Although the threshold for charging someone with “picking quarrels and provoking troubles” is lower than for “intentional destruction of property,” the sentences given for the former are generally much heavier. This has led to a bizarre state of affairs in which Ding would have been better off had he caused more damage. This not only runs counter to established legal principles, it also doesn’t pass the smell test: The punishment in this case doesn’t fit the crime.

Nor is Ding the only one to have been affected by this. Last October, a drifter named Ping Wentao was detained on suspicion of “picking quarrels” by defacing a stone tablet near Hangzhou’s West Lake. Because the damage wasn’t significant enough to merit a charge of “deliberate destruction of property” — and because the tablet wasn’t actually old, thereby ruling out charges of “intentional destruction of a historical artifact” — the authorities turned to a pocket crime instead.

Given that Ping’s offense was too minor to charge under either of the two above-mentioned laws, it stands to reason that whatever social harm he caused was also relatively insignificant. Yet, because prosecutors were only able to charge him with the more serious crime of “picking quarrels,” he might have been better off if he’d defaced an actual historical monument.

This gets at the underlying problem with pocket crimes: Prosecutors’ reliance on them actually incentivizes criminals to do more serious damage, so as to incur a lesser sentence.

That’s not to say that pocket crimes are wholly without merit: They play an important role in China’s legal system. Unlike the common law systems generally found in the English-speaking world, Chinese judges are less able to rely on precedent to handle cases in which current law is insufficiently targeted or poorly worded. Given these limits, prosecutors are not wrong for seeing pocket crimes as an efficient way to bring charges to cases not explicitly addressed by the country’s penal code.

However, there is a fundamental conflict between ambiguity and the globally recognized principles of crime and punishment. The continued use of pocket crimes will lead to more miscarriages of justice like the ones outlined above.

Rather than trying to fix problems with China’s legal code by giving prosecutors a blank check, lawmakers should focus on addressing the underlying issue: the gaps in the country’s laws. For example, if the country’s legal authorities believe that the standard for “deliberate harm” excludes too many potentially minor offenses, they can revise the relevant laws to give prosecutors the option of charging individuals for causing “minor harm.”

Today’s pocket crimes, much like the “hooliganism” charges of bygone days, have outlived their usefulness and should be phased out. If left unchecked, we may one day wake up to realize that vague, overly expansive laws have the ability to provoke far more trouble than a couple of small-time vandals ever could.

Translator: William Langley; editors: Lu Hua and Kilian O’Donnell.

(Header image: Liang Meng/VCG)