Supreme People's Court. Photo credit: Wikipedia
In March, the Research Office of the Supreme People’s Court published juvenile justice statistics for 2008‒2012, reflecting positive reforms in juvenile justice. During the period, China adjudicated 365,750 juveniles, down 4.5 percent from the previous five years. Meanwhile, the portion of juveniles receiving non-custodial punishments increased, reaching 42 percent in 2012 from 35 percent in 2008.
China added a juvenile section to its Criminal Procedure Law (CPL) last year including diversionary measures and codifying the principle of education first, punishment second. In 2011, the country amended its Criminal Law to recommend suspended sentences for youth who commit minor offenses.
Non-custodial punishments are crucial to help juveniles avoid re-offending, ensure their healthy development, and facilitate their positive interaction with the community. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) call for the least possible use of institutionalization, or custodial punishment, explaining that:
Little or no difference has been found in terms of the success of institutionalization as compared to non-institutionalization. … Moreover, the negative effects, not only of loss of liberty but also of separation from the usual social environment, are certainly more acute for juveniles than for adults because of their early stage of development.
The president of Guangzhou Intermediate People’s Court, Liu Nianfu, agrees that there is significant harm in institutionalizing juveniles who should receive non-custodial punishments. He sees the danger as a consequence of removing juveniles from society and putting them in close confinement with others who have come into conflict with the law.
In China, the most common form of non-custodial punishment is suspended sentence or reprieve. Suspensions or reprieves postpone the sentence for a specified period during which the defendant is required to submit to certain conditions—such as regularly reporting to a monitoring organization and obtaining approval for travel—in order to have the sentence withdrawn at the end of that period. Other types of non-custodial punishments include public surveillance and fines.
Although juvenile justice is meant to be impartial, migrant youth have been barred from equal access to non-custodial punishments in China. Shanghai and Guangdong have lower than average rates of juvenile non-custodial punishments, and courts in both regions have attributed this to higher proportions of migrants among juvenile defendants. For example, of juveniles tried in Shanghai in 2010, suspended sentences were given to 15 percent of non-locals, i.e., people without a Shanghai hukou (household registration), compared with 63 percent of locals. 
There are many reasons why migrants are more likely to be incarcerated. The Criminal Law lists “expressing remorse” as one of the criteria for receiving a suspended sentence. While not theoretically discriminatory, courts commonly consider whether defendants return stolen property and provide financial compensation as an aspect of remorse thereby privileging wealthier defendants. In 2011, the Juvenile Court Guiding Office of the Shanghai Municipality High People’s Court reported that migrant youth are less capable of returning stolen property or providing compensation since the property in question is often immediately expended and the youth themselves have fewer economic means.
Hukou, or household registration status, is important in determining non-custodial sentencing. Photo credit: Xinhua News
Some organizations in charge of monitoring individuals serving suspended sentences—police or grassroots organizations under the previous CPL and community corrections organizations under the revised law, effective January 1, 2013—limit their scope to people with local hukous, making migrants ineligible for suspended sentences, unless they are sent back to their hometowns. The prospect of relocation raises several issues including moving costs, the disruption of routine and social networks (especially if the juvenile has been living away from home for a significant period of time), and whether the juvenile will have suitable adult supervision. Moreover, according to Liu Nianfu, a solid understanding of the circumstances of a case is crucial to carrying out a tailored plan for rehabilitation. However, having a juvenile serve his or her sentence in a place other than where he or she committed the offense leads to an information disconnect where the implementers are less equipped to respond to the specific needs of the juvenile.
Another reason why migrant youth are not given suspended sentences is to account for what can become lengthy stays in detention. Migrant youth can be detained for months while their case is pending trial because they are more likely to lack the guarantor or funds necessary to post bail. According to the Shanghai high court, these prolonged detentions lead courts to issue custodial sentences whose lengths correspond to the amount of time juvenile defendants spent in detention to avoid the appearance of “excessive” punishment—even in cases where non-custodial punishments would have been applicable. The court goes on to note that this problem could be addressed by allowing community corrections organizations, defendants’ employers, or public welfare organizations to act as guarantors and by conducting speedier trials.
With growing awareness of the issue, Shanghai and Guangdong are working to boost access to non-custodial punishments for migrant youth. In Shanghai, the percentage of migrant juveniles receiving these punishments increased to 15 percent in 2010 from 9 percent in 2008. In Guangdong, non-custodial punishments for all juveniles (not disaggregated by hukou status) rose to 50.2 percent in 2011 from 10.9 percent in 2008.
Last year, a member of the Shanghai No.2 Intermediate People’s Court published an article calling for equal sentencing for migrant youth. The article uses the case of 17-year-old surnamed Shan to demonstrate how engagement from the defendant’s family, the judiciary, and the community can reduce institutionalization.
Shan’s parents had been working in Shanghai for seven years. He worked at a car factory and was convicted in a robbery case involving two victims, a few hundred yuan, and several mobile phones. Originally sentenced to 1.5 years’ imprisonment and a fine of 1,000 yuan, Shan successfully appealed the verdict and was given a suspended sentence due to several factors. The court strengthened cooperation between the district procuratorate and local community corrections organization to conduct a social investigation report. Members of the juvenile court visited Shan’s home and workplace to determine that he had a stable residence. Shan participated in reconciliation during which he showed remorse and offered financial compensation to the victims. Since Shan’s parents were in Shanghai and had applied for a temporary residence permit, he was eligible to participate in a local “help and education” (bangjiao, which is similar to probation) program, during which the court periodically evaluated his progress. Shan’s employer also agreed to continue his employment and undertake more rigorous supervision. This case demonstrates that increased collaboration can lead to the successful application of non-custodial sentencing, but given Shan’s ability to provide compensation and his relatively stable residency and work status, it is not necessarily applicable to most migrant juveniles.
Guangdong has addressed the issue by bolstering its policy framework with regulations for implementing non-custodial punishments in juvenile cases. Issued by the Guangdong High People’s Court, the regulations state that community corrections organizations can provide help and education to juvenile suspects and defendants who are not Guangdong residents but who regularly reside, study or work, or have family members in Guangdong.
Rather than referring generally to those with non-local hukous, which can include people from different cities or counties of Guangdong, the rules refer to non-Guangdong residents. That means that while a juvenile in Guangzhou, Guangdong’s provincial capital, with a Sichuan hukou need not be sent back to Sichuan to carry out a suspended sentence, a juvenile who has moved to Guangzhou from elsewhere in the province just might. In order to facilitate these types of movements, the Guangzhou Intermediate People’s Court has devised a new system of post-sentencing corrections plans. The system requires juvenile judges who issue suspended sentences to write corrections plans that are tailored to the circumstances of each defendant and submit them to community corrections organizations that carry out the help-and-education stage. In situations where migrant juveniles are sent back to their place of registered residence, these plans help community corrections organizations understand the juvenile’s needs, but relocating juveniles is not without problems. Removing a young person whose identity is still being formed from a familiar school, job, or group of friends presents a major transition that can either facilitate or complicate the reform process.
Despite ongoing problems caused by economic inequality and hukou status, the amount of collaboration involved in increasing access to non-custodial punishments among migrant youth in the immigration centers of Shanghai and Guangdong is significant. In order to realize the principle of education first as emphasized by the revised CPL, more broad-based attention must be paid to migrant juveniles to ensure that they benefit from forward-thinking juvenile justice reforms.
3. 李振武 [Li Zhenwu], “对符合条件的非本地户籍未成年被告人应平等适用缓刑” [Dui fuhe tiaojian de feibendi huji weichengnian beigaoren ying pingdeng sheyong huanxing], 预防青少年犯罪研究 [Juvenile Delinquency Prevention Research], 2012(7). ⇑