Wednesday, November 16, 2011

Protect Youth, Rights, Clarify Custody and Rehabilitation

The 15-year-old son of Li Shuangjiang, a retired People’s Liberation Army general known for singing patriotic songs, became the subject of scandal in September after reports emerged that he had assaulted a couple in a traffic incident and then warned bystanders not to notify police. The incident fueled intense online criticism from a public fed up with bad behavior and assertions of privilege by children of the rich and powerful.

News that Li’s son would serve one year in “custody and rehabilitation” may have satisfied some of these critics, but it prompted legal scholar Liu Renwen to reflect on shortcomings of the system of custody and rehabilitation—a system intended to protect juveniles who have not yet reached the age of criminal responsibility but that in fact resulted in consequences for Li’s son that in Liu’s opinion were too harsh. In commentary published by The Beijing News, Liu proposes reforms to better protect the rights of young people and improve China’s compliance with its obligations under international human rights law. He argues for greater restrictions on the use of custody and rehabilitation and the transfer of decision-making power from the police to the courts. (Liu is the Criminal Law Department director at Chinese Academy of Social Sciences’ Institute of Law; he also frequently comments on issues related to capital punishment.)


Custody and Rehabilitation System Needs Improvement
Liu Renwen, The Beijing News
October 8, 2011

Recently, Li Shuangjiang’s son Li X was sentenced by Beijing police to one year of custody and rehabilitation because he created a serious disturbance while under the age of criminal responsibility. This incident has turned the public’s attention to the system of custody and rehabilitation.

The legal basis for the system of custody and rehabilitation originates in Article 17(4) of the Criminal Law: “If [an individual] is not given criminal punishment because he/she has not reached the age of 16, the head of his/her family or his/her guardian shall be ordered to discipline [the individual]. When necessary, the government may take [the individual] into custody for rehabilitation.”

Looking at the original intent of the legislation, this provision was meant to resolve the following problem: Individuals who commit socially harmful acts but have not reached the age of criminal responsibility can neither be labeled criminals nor be simply ignored. So, the system of custody and rehabilitation was created as something akin to a security disciplinary measure.

However, practice shows that this provision has some areas that need to be improved. Specifically, this can be seen in, first of all, the vagueness in the standard for application. What, ultimately, is meant by “when necessary”?

I believe that we should establish the following basic criteria:

First, if the family has the ability to discipline, there is no need for the government to take [the juvenile] into custody for rehabilitation. Only for a juvenile that does not have family or whose family is unable to discipline should the government take [the juvenile] into custody for rehabilitation.

Second, if there is a family and a parent or guardian willing to carry out discipline, as a matter of principle, the family should carry out discipline for a first offense. If there is a second offense, however, custody and rehabilitation should be considered.

Third, in some vicious cases, even if [the juvenile] has a family and a parent or guardian willing to carry out discipline, if, out of overall consideration of the harmful consequences to society of the [juvenile’s] actions and the dangerous nature of the [juvenile’s] character, it is felt that there is need to send [the juvenile] to a custody and rehabilitation facility to carry out the necessary correction and behavioral intervention, custody and rehabilitation may be used even for a first offense.

In sum, [we] cannot regulate as vaguely as we do now with words like “when necessary.” This is too flexible and does not benefit the seriousness of law enforcement. In the case of Li Shuangjiang’s son, many believe that Li Shuangjiang’s notoriety led Li X to be treated unfairly, as custody and rehabilitation would not generally be used under these circumstances. Instead, a parent or guardian would [normally] be ordered to do the disciplining.

Next, there are flaws in the procedure used [for custody and rehabilitation]. [Although the law stipulates that] “the government may take into custody for rehabilitation,” in practice, the public security organ carries out custody and rehabilitation on behalf of the government. According to relevant regulations of the Ministry of Public Security, the duration of custody and rehabilitation generally ranges from one to three years. Deprivations of liberty for such a long period of time, without first conducting a court trial, are unreasonable.

China has already signed the International Covenant on Civil and Political Rights, which holds that all deprivations of liberty, regardless of whether in criminal or other proceedings, must be determined by a “competent, independent, and impartial tribunal established by law.”

With this spirit as a starting point, [we] should reform the procedure used for the system of custody and rehabilitation to transfer the decision-making power from its current holder, the public security organ, to the courts and to give individuals subjected to custody and rehabilitation and their parents or guardians the right to an open-trial hearing, the right to appoint a defense lawyer, and the right to appeal.

Otherwise, this awkward phenomenon will occur in practice: Legislation that was originally intended to protect juveniles results in an individual who has reached the age of criminal responsibility having the right to an open-trial hearing, the right to obtain a defense lawyer, and the right to appeal, while an individual in the same case who has not reached the age of criminal responsibility loses all of these procedural protections. This is clearly unfair.

Some may say that custody and rehabilitation does not involve labeling a [juvenile] as a criminal, and thus, relatively speaking, it still protects [the juvenile’s] interests. The problem is that this kind of protection cannot be at the expense of proper procedure, since this kind of protection can in fact be fully realized through a court decision.

Finally, the duration and implementation of custody and rehabilitation also have room for improvement. The current term of one to three years of custody and rehabilitation is too long and should be shortened. Also, there are currently no standards for the management of custody and rehabilitation facilities, and the methods of custody and rehabilitation used are too homogenous. We need to think seriously about how to truly come up with effective methods of education, reform, and rehabilitation that are based on juveniles’ physical and psychological characteristics, rather than simply locking them up in what even turns into [a kind of] disguised criminal punishment.

Liu Renwen, Researcher and Criminal Law Department Director, Institute of Law, Chinese Academy of Social Sciences