The Unimpactful Counsel: A Study of the Sentencing of Death-eligible Drug offenders in China


Michelle Miao

SSRN Research Paper Series, 2023

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Abstract: Does legal representation affect critical judicial decisions? This article highlights a paradox at the heart of court sentencing of death-eligible drug offenders in China. On the one hand, lawyers are regarded as a staple of due process. On the other, court decisions are insensitive to the availability (whether drug offenders have access to legal assistance) and the quality (the varieties and conditions of legal services provided by private vs court-appointed attorneys) of legal representation. I argue that this perplexing contradiction derives from the institutional alienation of criminal lawyers in China, a theory containing three main dimensions: power deficit, identity confliction, and procedural-based legitimacy. The defense lawyer has little control over or power to determine capital drug sentencing decisions; at the same time, criminal defense lawyers are unable to fully realize themselves in their professional activities; they are used as instruments to advance bureaucratic and political interests and are therefore exposed to impoverished and instrumental relations with judicial institutions and their own activities. This paradox – the insignificance of differences – takes place in China’s non-adversarial judicial settings and its authoritarian political environment. It is differentiated but connected with a paradox between eradicating inequality and providing adequate assistance to the most marginalized defendants in adversarial criminal justice systems. This article adopts mixed research methods, including qualitative interviews of legal professionals across China and quantitative analysis based on a regression analysis of national-level (N=10,132) and provincial-specific (N=3,955) samples of court judgments.

About the author: Michelle Miao was a HYI Visiting Scholar from 2019-20.