Wednesday, March 17, 2010

Chinese Legal Practitioners Stress Need for Better Procedures to Protect Juvenile Suspects

As China formulates its national system of juvenile courts, criminal justice professionals are beginning to call out for stronger provisions to protect young people who get in trouble with the law. The China Youth Daily article below (translated by Dui Hua), which references a recent forum in Beijing on criminal procedure for juveniles, highlights the challenges of protecting Chinese juveniles within public security and criminal justice systems that were designed for handling adult cases.

Forum participants argue that the way juvenile offenders are treated from the point of detention forward is damaging to young people and society, and is also inconsistent with China's policy to protect juvenile suspects. The piece points out that the Criminal Procedure Law lacks separate protections for juveniles based on the humanitarian ideal of "education first, punishment second"—from detention by the public security bureau, arrest by the procuratorate, incarceration, and ultimate release and re-entry into society.

Wang Gengyun of Beijing's Miyun County People's Procuratorate decries the fact that 80 percent of juvenile offenders in China are incarcerated, a percentage far higher than in other countries. As revealed in the article, some procuratorates in China have successfully used more lenient measures to deal with young criminal suspects, including "postponing prosecution" through a process similar to probation, whereby suspects fulfill set obligations within a certain time period. Though this practice has helped prevent and contain juvenile crime, it has no legal basis in China. Wang recommends that lawmakers define a system for delaying prosecution of juveniles as a way to "better embody the principle of combining lenience with severity."

Ji Guangsheng, from the Beijing Dongcheng District People's Court's Juvenile Crime Tribunal, proposes that China build up its system of confidentiality for juvenile criminal records. Judge Ji spells out a crucial contradiction in Chinese law that undermines the protection of individuals who commit juvenile crimes: although the Juvenile Protection Law technically shields young offenders from later discrimination, the Criminal Law requires individuals to report past criminal punishments to parties such as prospective employers.

Interestingly, the two reforms advocated by participants at the conference—"diversion" instead of incarceration and the sealing of a juvenile's criminal records—figured prominently in presentations made by American juvenile justice experts to Chinese Supreme Court judges during the Chinese judges' delegation to the United States in October 2008. That delegation was hosted by Dui Hua with support from The John D. and Catherine T. MacArthur Foundation.


"Conflict of Laws" Negates Restrictions on Revealing Juvenile Criminal Records
Legal Practitioners Call for Swift Legislation to Protect Juveniles in Criminal Procedure
China Youth Daily, March 12, 2010
Reported by Li Xinling

     Recently, at the end of her presentation at a forum on "Criminal Procedure for Juveniles: Institutions and Legislation," Dr. Wen Xiaojie, a deputy judicial officer at Beijing's Haidian District People's Court, showed a slide with a photograph of her son. "This is my son, who is more than one year old and is extremely lively and active. Each day, I feel extraordinarily fortunate to watch him grow up so happily. I hope that all mothers can feel that same sense of fortune and that the mothers of youths who have gone astray can recapture that lost [sense of] fortune again." Her moving conclusion received extended applause from the conference attendees.
     But Wen, who is committed to protecting juveniles, must face the facts. In adjudicating juvenile criminal cases these days, the various humanitarian measures available to the legal system—such as mitigating or reducing punishments, postponing prosecution, sealing of criminal records—are all in the awkward position of being "reasonable, but not in accordance with the law."
     Prof. Chen Guangzhong, former president of China University of Politics and Law, said: "Procedures in the Criminal Procedure Law for criminal cases involving juveniles are lagging behind. There are many gaps and areas where it's not possible to give expression to the principle of 'education first, punishment second.' Some of the measures being used by the courts actually have no legal basis." He called for greater focus and swift legislation to improve the criminal procedures for juveniles.

High arrest rate for juvenile criminal suspects
     Xu Ning, of Beijing's Fengtai District People's Procuratorate, has for several years been focusing attention on how to lower the arrest rate for juvenile criminal suspects. "In 2005, the criminal investigation supervision section of Beijing's Fengtai District People's Procuratorate handled 60 juvenile cases involving 106 individuals, of which arrest was approved in 42 cases involving 79 individuals, for an arrest rate of 74.5 percent," she said. "In 2006, out of 108 cases involving 182 individuals, arrest was approved in 75 cases for 134 people, an arrest rate of 73.6 percent." Xu used this data to show that with juvenile crime on the rise over the past few years, the arrest rate for juvenile criminal suspects has been on the high side, without any clear sign of decreasing. This is inconsistent with the criminal justice policy of "protecting juvenile criminal suspects [by] avoiding arrest if at all possible."
     Xu believes that if you use a coercive measure like arrest on a juvenile criminal suspect whose body and mind are not fully developed, it is very likely to have negative consequences. Teenagers between the ages of 14 and 18 are biologically at the peak of their development, but they are not psychologically mature and are prone to develop negative moods like ambivalence, rebelliousness, or anxiety, many committing crimes of passion. Arrest and incarceration might cause them great emotional and psychological damage, leading them to give in to despair so that when they return to society, they re-offend.
     Other negative consequences of the arrest of juvenile criminal suspects include "cross infection" and waste of considerable amounts of judicial resources.
     According to Xu Ning, lowering the arrest rate for juvenile criminal suspects is the trend of international legal protection. Criminal or juvenile laws in Japan, the United States, and Germany all have such regulations. However, because China's criminal procedure law rarely touches on protection of minors, there is no legal basis for lowering the arrest rate for criminal suspects. There is nothing in the Criminal Procedure Law's provisions on coercive measures that distinguishes between minors and adults, making it difficult to provide special protection for juveniles.
     Xu Ning also points out that another major reason the arrest rate is so high is because public security organs do not provide [the procuratorate] with background materials for the vast majority of juvenile criminal suspects they apply to arrest, making it difficult to judge the suspect's threat to society.
     In October 1995, the Ministry of Public Security issued "Regulations on the Handling of Cases Involving Juvenile Offenders by the Public Security Organs," which clearly stipulates that public security organs should establish specialized units or personnel to investigate cases of juvenile crime. But in fact, the vast majority of public security organs have not established specialized units or personnel to handle juvenile cases, leaving them to be handled by the responsible units in the criminal investigation division. With large work loads, investigators handling these cases have difficulty taking full account of the unique nature of juveniles, so they use the same approach as with adults: placing them under criminal detention first, then requesting arrest.
     Prof. Chen Guangzhong expressed strong support of Xu Ning's ideas, saying: "The international approach to juveniles is to carry out arrests rarely or even never."

Despite positive impact of postponing prosecutions, still "no legal basis"
     In Nanjing, Jiangsu Province, there was an intentional assault case involving a group of 11 middle-school students, aged 15 to 17, who ruptured the kidney of another student during a fight. The facts in the case were clear enough and the evidence sufficient to constitute the crime, but considering that the 11 students' behavior in school was normally not bad and that this was their first offense, the procuratorate [realized that] to prosecute them would mean not only depriving them of education but also brand them with a black mark for the rest of their lives. So the procuratorate, together with the public security bureau, the school, law professors, and the parents of the suspects and the victims, convened a hearing to discuss postponing the prosecution. After hearing the opinions of all sides, a probation period of three months was set. During that time, [the juveniles] were expected to fulfill five obligations: obey national laws and regulations and avoid engaging in illegal or criminal activity; obey the regulations for being released on bail pending further investigation; obey the school's regulations and disciplinary code and earnestly complete their studies; perform at least one act of public service per person per month; and write a thought report every two weeks.
     The results were gratifying: all 11 criminal suspects conscientiously fulfilled their obligations during the probation period and in the end, the procuratorate issued a decision not to prosecute, allowing these students to continue with their lives as students.
     This case is one of the most notable examples since China's procuratorates began experimenting with the system of postponing prosecution of juveniles. At the forum on "Criminal Procedure for Juveniles: Institutions and Legislation," Procurator Wang Gengyun of Beijing's Miyun County People's Procuratorate presented some other cases to confirm the effectiveness of this method. For example, from 1992 to August 2003, Shanghai's Changning District People's Procuratorate postponed prosecution for nearly 20 juvenile criminal suspects, of whom four were prosecuted. The rest, who were not prosecuted, all successfully entered university and went on to hold jobs.
     Wang Gengyun explained that postponing prosecution is a decision by the procuratorate to delay prosecution of a criminal suspect while ordering him or her to fulfill certain obligations within a specified period of time. Based on his or her behavior, the procuratorate then decides whether to indict. Postponing prosecution is having an extremely important impact in the area of juvenile delinquency prevention and containment. Overseas there is already a mature system for this, but in China, despite the successful experiences, there is no legal basis.
     "Related studies show that in Germany only four percent of youth offenders are sentenced to incarceration," said Wang. "In Japan, it's even lower—only one percent. But in our country, only 20 percent of juvenile offenders avoid being sentenced to incarceration." Wang recommends that Chinese lawmakers enact legislation to define the system of postponing prosecution for juveniles. [He said] this would give prosecutors more freedom and discretion in handling juvenile crime and better embody the principle of combining lenience with severity.

"Conflict of Laws" Negates Restrictions on Revealing Juvenile Criminal Records
     More than a decade ago, a teenager stole some items and broke the law. Since he was a minor at the time and voluntarily returned the stolen goods, the court panel sentenced him to a suspended sentence. Later, relying on his own efforts, this youth set up his own company. When China faced natural disasters, he voluntarily donated relief funds. Afterwards, he met an admiring girl, but when they began to talk of marriage, her parents inadvertently found his name on a public security website and discovered that he had a criminal record. Because of her parents' disapproval, the two had to split up.
     This is something that causes Beijing Number One Intermediate Court Senior Judge Lai Qi to feel very sad and helpless. Lai Qi has presided over juvenile criminal cases for many years, and he has observed several cases in which minors who had once been punished for crimes carried stigmas that affected them for the rest of their lives. Some could not find work because of this and gradually became recruits for another round of crime.
     Once, after leaving prison, a teenage girl used family connections to find a job working in an insurance company, but she lost the job when the police station refused to issue a record confirming that she had not committed any crimes. Afterwards, she lost all hope and was later placed under custody and education by police for engaging in prostitution.
     Ji Guangsheng, of the Beijing Dongcheng District People's Court's Juvenile Crime Tribunal, offered his own proposal: "The main international regulations and criminal laws of different countries all have provisions related to limiting publication of juvenile criminal records. As China pushes forth its own juvenile justice reforms, we ought to establish a system for sealing juvenile criminal records."
     He also noted that although the Juvenile Protection Law clearly states that "juveniles who have been released from incarceration or imprisonment may not be discriminated against with respect to returning to school, school promotion, or obtaining employment," Article 100 of the Criminal Law states that "anyone who has been subjected to criminal punishment shall, before being recruited in the army or employed, report the facts to the unit concerned and may not conceal them."
     The conflict between these two legal provisions sometimes negates the protections for juveniles. These days many courts are taking the humanitarian step of sealing juveniles' criminal records, but the public security organs go to the schools and the communities to investigate and file reports. In this way, juveniles' black marks still get revealed.
     Legal practitioners also point out that courts at all levels should strictly adhere to the provisions for trying juvenile criminal cases in closed court. If it is necessary to open the proceedings, then all efforts should be made not to publicize reports in order to prevent psychological pressure on the juvenile. At the same time, it is necessary to clarify the entities [responsible] for knowing about juveniles' criminal records and their obligations to keep this information secret.