Should the United States Extradite Chinese Fugitives or Protect Them From an Unfair Justice System Back Home?

In January 2015, officials from the United States and China met in the Philippines to discuss the possible extradition of corrupt officials who had fled to America from 2003 to 2012, bringing with them potentially billions of dollars of stolen assets. The working group of the APEC Network of Anti-Corruption Authorities and Law Enforcement Agencies (ACT-NET) held this forum as a follow-up to its first meeting in August of 2014. “Saving face” is an extremely important value in Chinese culture, and a refusal to return escapees disgraces the U.S. government in the eyes of Chinese officials. Since 2014, Chinese state-owned newspapers such as the Global Sun have been calling for better cooperation between U.S. and Chinese law enforcement. It is important that the United States supports China in its new corruption reforms undertaken by the Xi administration by investigating and extraditing those officials both countries deem corrupt.U.S. officials have already begun a process of a joint investigation into many of those accused by the Chinese government of corruption (such as the aforementioned meeting of ACT-NET) and are working to ensure they are returned to await a fair trial in the Chinese justice system. ACT-NET works to connect anti-corruption and law enforcement officials in informal communications within the institution. Still, no extradition treaty exists between Washington and Beijing, and as such the United States has become the preferred destination for those Chinese officials seeking to flee prosecution for their wrongdoings, alleged or confirmed. The United States, along with Australia and Canada—which also lack extradition treaties with Beijing—has been reluctant to return Chinese officials to the oft-criticized Chinese judicial system.The Chinese judicial system differs from the American legal system in a number of ways. In the United States, a jury of twelve randomly selected peers decides the defendant’s guilt and is complemented by sentencing from a judge, who bases his decision off sentencing guidelines. In China, the collegiate bench decides both verdict and sentencing. The collegiate bench can consist of only judges or judges and people’s jurors, and the number of members varies depending on the level of the court in which the trial occurs. The number of jurors can be between three to seven, with judges always outnumbering people’s jurors. Jurors in Chinese courts serve five-year terms after going through a rigorous selection process, making jurors further removed from the public. China juries make conviction decisions differently than the U.S. juries, as well. In the United States, the suspect is assumed to be innocent until proven guilty, with the burden of proof on the prosecutor. In China, however, there is no clearly stated standard for conviction, and the verdict can depend solely on the opinion of the pre-selected collegiate bench.The differences that exist between the two judicial processes leave the United States hesitant to hand over Chinese government officials already deemed corrupt by the Chinese government. Making the decision more difficult, China has also been accused of punishing corrupt officials through the death penalty1—a punishment that does not quite fit the crime, by Western standards.2At the 2014 meeting of the U.S.-China Joint Liaison Group on Law Enforcement Cooperation, Chinese diplomats sought to negotiate with U.S. officials over the return of more than 1,000 Chinese officials who fled to the United States seeking refuge. Significantly, this activity ramped up after the election of the new president of the Chinese Communist Party (CCP), Xi Jinping. President Xi has unprecedentedly brought down many high-ranking Chinese officials he and his cabinet have determined corrupt. Corruption has becoming such an important issue in China lately, as it is inherent and essential to political and business success in the PRC.The intense, relationship-based guanxi system is at the core of Chinese business practices and involves the entire society. With this, everyone involved in business in China is also involved in corruption—it is more of a matter of degree and extent. For this reason, Xi’s anti-corruption campaign has been compared to a witch-hunt, since his political enemies are almost certain to have at least some history of corruption in their past. Since the Xi administration made fighting corruption its flagship issue, many Chinese officials dependent on the guanxi system are fleeing abroad in search of safer places to store their assets.In the United States, Chinese officials are attempting to gain citizenship through the investor-visa program, in which investments of over 1 million USD in a U.S. enterprise give immigrants a better chance at permanent resident status. As allegedly stolen Chinese money is injected into the U.S. economy, Chinese political leaders have naturally become more assertive in their attempt to repatriate these corrupt officials. Moreover, the harboring of these fugitives, along with the acceptance of potentially corruptly obtained money, tarnishes the already delicate relationship between the United States and China.Establishing an extradition treaty may prove itself difficult in this case, as the two countries differ substantially as to what exactly constitutes corruption. The United States should continue its cooperation with Chinese law enforcement in an attempt to promote Beijing’s efforts to purge corruption, but it should do so with the understanding that Xi’s anti-corruption campaign may be the product of his own political agenda. To better ensure cooperation with China and become more confident that the United States is not returning politically persecuted officials back to China for prosecution, Washington and Bejing should establish a joint investigative body, headed by the FBI and in conjunction with the U.S. Treasury, Department of State, and the Chinese Foreign Ministry, to better scrutinize Chinese officials who may have fled to the US to avoid corruption charges.The United States and the international community will benefit from a less corrupt China, as Beijing’s foreign policy decisions are highly dependent on domestic Chinese stability. By beginning a pattern of cooperation on the issue of corruption, the United States and China can establish a template for joint investigations that could later be used to tackle pressing issues such as intellectual property laws. U.S. officials will be able to both strengthen a frail relationship between China and the West and achieve an outcome with mutual benefits. With an understanding of the political motivations of President Xi’s anti-corruption campaign, the United States must aim to remain a safe haven for political refugees while supporting China as it pursues a more principled political climate.

1. Executions are considered to be state secrets in China, so no public record of crimes punished by execution exists. Still, economic crimes are publicly considered severe enough to be punishable by death.2. Currently, no U.S. states hold statutes that permit the use of the death penalty for crimes other than murder, and federal laws provide for the death penalty only in the case of murder.