In Search of Judicial Legitimacy: Criminal Sentencing in Vietnamese Courts, Trang (Mae) Nguyen
The criminal process is hierarchical in the sense that a criminal case sometimes goes through multiple levels of courts and involves complex communications and negotiations among judges and legal professionals.
Higher-level courts are often responsible for correcting the mistakes made by lower-level courts. In civil law jurisdictions where courts are a bureaucratic hierarchy, higher-level courts also assume the task of curbing corruption by lower-level judges. Based on her analysis of 242 criminal judgments issued by the Supreme People's Court (SPC) in Vietnam and interviews with judges, court officials, lawyers, and academics, Trang (Mae) Nguyen's article discusses how the SPC fights the entrenched judicial corruption in the criminal justice system, focusing on the use of the suspended sentence.Lower courts' undisciplined use of suspended sentencing has long plagued the SPC. The Criminal Code allows judges discretion to impose a suspended sentence in lieu of imprisonment for defendants convicted of non-serious offenses - a measure akin to probation in the U.S. Seen as a leniency measure to promote reentry and rehabilitation, suspended sentencing has become a red flag for corruption. As one attorney explained,
The judge called me and asked me to “cooperate.” It is not just him, he said, but also the people assessors and other people in the process who need to be taken care of. He asked for 20 million Vietnamese dong [about $rooo] per year of reduction in imprisonment, or a lump sum of 100 million for a suspended sentence. A bad judge would insist on a fixed price; a ?good' judge would consider their [the defendants'] household situation and income levels in determining the price....
Another defense attorney described the systematic entrenchment of corruption:
Judges are people too. Look at their salary scale... how do you think they live and put their children through school? There are good and bad corruption.
Bad corruption is extortion; ?good' corruption is to get the people in the process to do their jobs.Another attorney elaborated:
To obtain a lighter sentence or a suspended sentence is an investment. To obtain an acquittal is a lifetime investment. I morally oppose [bribery], I am vehemently against it, but I have to do it in order to do my job. I try to not think about it as justice for sale [chay an] but as an investment for my clients' future. While others put cash into envelopes to do the exchange, I instead use a nice card, to show that it is not just a transaction.
The rampant abuse of suspended sentencing caused damages to the judiciary's reputation, as an article in a popular news outlet chided, “Even a judge who received bribery for abusing suspended sentencing received a suspended sentence.” [...]
Legal practitioners interviewed also cautioned that the use of suspended sentencing could signify another issue: a plea bargaining-like mechanism. Though data on the conviction rate in criminal cases is scarce, a consensus exists that it is near 100%, and judges and prosecutors are generally under pressure to secure convictions. A promise for a suspended sentence is an easy way to bargain with criminal defendants, especially in cases with weak evidence. As one lawyer puts it:
I told my client that I have negotiated a suspended sentence for him if he would express remorse in court and offer to compensate the victim [in a battery case]. The chance for acquittal is basically zero, so it is better to accept this deal.
Cases analyses support a portrait of Vietnamese courts as a forum to determine sentencing, rather than to contest guilt. As one lawyer explains,
Getting clients a good sentence is the game here. As a lawyer, I’d consider it a lifetime achievement if I get even one client acquitted. It rarely happens.
Of over 200 cases in the database, the Judicial Council returned a non- guilty verdict in only two instances - a contract dispute it deemed belonging in civil courts, and a corruption case in which the procuracy indicted several lowly employees but failed to prosecute the responsible leadership.
In two other instances where defendants obtained non-guilty verdicts in lower courts, the Council reversed those determinations, noted the holes in the evidence collected, and remanded the cases to the procuracy offices for re-investigation. Remanding a non-guilty verdict so the prosecution can build a better case may seem perverse, but is an accepted practice in Vietnam’s inquisitorial tradition. One lawyer noted that judges rarely, in her experience, went beyond the sentence that the procurator recommended, likely because they had come to an agreement at pre-trial “interbranch coordination” meetings [hop lien nganh] to which lawyers no access. Given such an uneven footing in trial practice and the rarity of acquittals, a plea bargain in the form of a suspended sentence might be the most strategic choice to defendants.The SPC’s tightening of lower courts’ sentencing discretion directly tied to several facets of the Court’s legitimacy. Seen as a remedy for judicial corruption and providing clarification for vague laws, it boosts moral and legal legitimacy. It also reinforces the SPC’s interbranch legitimacy as the Court was able to coordinate with and support the government’s overarching crackdown campaign on corruptions. However, as acquittal remains rare and suspended sentencing continues to be used as proxy for plea bargaining in undeserving cases, citizens are unlikely to trust that they would get a fair day in court, detracting from measures of sociological legitimacy.
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