Thursday, July 6, 2017

The “Hidden Rules” of China’s Criminal Justice System


Rule of Law was a centerpiece of the Fourth Plenum meeting of the Central Committee of the CCP in October 2014. Image Credit: Getty Images.

Xi Jinping made judicial reform a priority item on his agenda after fully taking power in 2013. He promised to “construct a rule-of-law country” and repeatedly emphasized the need for governing with respect to Chinese law and the constitution. Legal institutions were the focus of the “Fourth Plenum” meeting of the Central Committee of the Chinese Communist Party in October 2014, which pledged to “strive to let the popular masses feel justice in every court case.” Since then, efforts have been undertaken to “deepen” reform of the country’s legal institutions and officials have been served notice to achieve their reform targets before the upcoming 19th Party Congress later this year.

In the run up to the 19th Party Congress, we should expect to hear more talk of the great achievements and successful reforms of China’s judicial system. In February, the Supreme People’s Court released a white paper on judicial reform describing its progress in improving the efficiency, accountability, and transparency of the judicial system and declaring that 63 of the 65 reform goals it had set for itself to achieve by 2018 had already been basically accomplished by the end of 2016.

The reform of China’s law-enforcement and judicial institutions has certainly made some progress in recent years, but are there problems in the country’s legal system that remain untouched by these reforms and continue to undermine the ability of those institutions to deliver justice?

According to Professor Chen Ruihua, an expert on criminal procedure law at Peking University Law School, the answer is a resounding yes. In a recent blog post, widely circulated online, Chen observes that there are 17 “hidden rules” that govern how the Chinese criminal justice system “really” operates. These rules describe a system of collusion between institutions intended to check each other’s powers, courts that are fundamentally biased against defendants, and a coordinated effort to limit the impact of defense lawyers.

A list like this is clearly not meant to be analytical, though Chen has spoken and written quite frankly and at length on the flaws he observes in China’s criminal justice system. At a time of renewed ideological attacks against judicial independence and separation of powers, it takes courage to even raise the possibility that the progress of Chinese legal reform is not everything it’s made out to be.

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17 “Hidden Rules” of China’s Criminal Justice System

In the Chinese criminal justice system, the “gong-jian-fa” institutions (public security, procuratorate, and courts) follow a set of “hidden rules” outside of the formal legal system. These “hidden rules” have great vitality and have operated over a long period of time, making it difficult to change them despite revisions to the criminal procedure law or even judicial reforms. Professor Chen Ruihua sums up these “hidden rules” as follows:

  1. The investigative organs will only file a case for investigation when that case has already been solved.
  2. Most of the public security organ’s criminal investigation activity is completed before issuing the decision to arrest.
  3. The vast majority of cases are only solved after obtaining a confession of guilt by the suspect.
  4. If it were not for the purposeful restriction of the rights of defense lawyers and the extralegal detention measures against suspects, solving criminal cases would be extremely difficult for the majority of investigative organs.
  5. Compared to plaintiffs in civil trials, the public prosecutor in a criminal trial has a far stronger appetite for “winning”.
  6. When a case lacks clear facts or evidence, the procuratorate would rather withdraw the prosecution than allow the court to acquit the defendant.
  7. Almost all police and procurators treat defense lawyers with a certain degree of hostility.
  8. When a case lacks clear facts or evidence, courts will generally issue decisions that “give lenient punishment when there is doubt” or “remand for retrial;” the “presumption of innocence” is an extremely rare exception.
  9. Nearly all first-instance trials proceed by reading the record of criminal investigation aloud.
  10. In cases where the defendant hasn’t put forward enough exculpatory evidence, the court’s judgement is basically a kind of process to affirm the conclusions of the investigators and prosecutors.
  11. The vast majority of criminal judges lean toward the side of prosecution and will do everything they can to avoid allowing a “guilty” defendant to escape justice.
  12. Judgments in the vast majority of cases are reached outside of the trial process.
  13. The vast majority of judges turn a blind eye to procedural violations of law made by police, procurators, and first-instance trial judges.
  14. When a defendant refuses to admit guilt during the investigation or trial phases, it becomes a significant basis for the court to impose a more severe punishment.
  15. In the vast majority of cases it is a “responsible” judge that makes the judgement decision.
  16. Judges would rather write extremely detailed “trial conclusion reports” than provide detailed reasoning for their judgments.
  17. Whether it is the individual police, procurator, judge, or the “gong-jian-fa” organs, each has a direct interest in how criminal cases are decided.

Tuesday, June 20, 2017

Chinese Court Decision Highlights the Need for Full Implementation of Anti-Domestic Violence Law


A woman stands near videos from an exhibition on domestic violence in China. Image Credit: The Guardian.

The Ordos Intermediate People’s Court in Inner Mongolia recently convicted a local government official of battering his wife—the journalist Hong Mei—to death. The case has received significant attention largely due to Hong’s standing as a successful journalist who had been reporting on domestic violence and the implementation of China’s year-old Anti-Domestic Violence Law. Major Chinese news organizations covering Hong’s death include Xinhua, Caixin, Sina, and Tencent News. Digital media outlets Quartz and Sixth Tone also reported the story.

Brutal Death of a Promising Woman Journalist Strikes a Nerve

Hong’s death touches a raw nerve with the many Chinese citizens who recognize domestic violence as a major social problem. As described in a mournful report published shortly after her death, Hong was an especially poignant victim. Personal artifacts remaining in her office at the Hangjinqi Broadcasting and Television Bureau speak to a respected journalist devoted to her work and family.

While China’s post-1978 reform era has brought about a degree of economic and social liberalization that has created greater opportunities for women, according to The New York Times it “has also fostered a resurgence of long-repressed traditional values. More and more men and women say a woman’s place is in the home, wealthy men take mistresses in a contemporary reprise of the concubine system, and pressure for women to marry young is intense.” Increasing numbers of professional women in China, such as Hong, encounter obstacles to professional achievement stemming from domestic violence and a male-dominated workplace culture. Although China’s Anti-Domestic Violence Law came into effect on March 1, 2016 and receives strong support from the public, it still suffers from weak implementation, and the number of domestic violence cases continue to be alarmingly high. The All-China Women’s Federation found that a quarter of all married women in China experience some form of domestic violence.

Domestic Violence and Women in Prison

Women make up an overwhelming majority of the victims of domestic violence. While spousal abuse perpetrated against women is often trivialized or ignored by local law enforcement, survivors’ defensive strategies are routinely criminalized. In some provinces, the number of female offenders who are in prison for committing crimes related to domestic violence (such as fighting back to defend themselves or their children) can account for up to 22% of the total serious female offender prison population. Recognizing the gendered nature of domestic violence and the importance of putting in place preventative and interventionist measures to protect potential victims and survivors would go a long way in reducing China’s female prison population, which has been on the rise in recent years.

The Anti-Domestic Violence Law rightly addresses the issue. Of special significance is the introduction of “personal safety protection orders.” The law marks the first time on a national legislative scale that protection orders (essentially a restraining order) can be issued by a court without the need for a lawsuit to be filed. Alongside the orders, the law also emphasizes the importance of public education and a community-based approach towards intervention whereby groups such as schools, medical facilities, and neighborhood committees are responsible for reporting cases of domestic violence. With the rising number of women in prison and the fact that their crimes are often the last resort of an abuse victim, preventative measures not only ensure that victims are protected as early as possible, they also have the long-term collateral impact of reducing a woman’s risk of incarceration.

However, preventative measures can only be successful if implemented. It is crucial that police and courts are responsive and protective of victims before domestic violence cases escalate. Currently, even with the Anti-Domestic Violence Law well into its first year of implementation, numerous women’s rights groups have expressed disappointment in law enforcement and judicial handling of domestic violence cases—the former for failing to intervene and provide refuge for victims, and the latter for the long turnaround time in issuing protection orders.

Court Decision Documents a Sad History of Abuse

If Hong’s story generates sympathy among Chinese citizens and women’s rights advocates, the background of her abuser, Jin Zhu, likely also taps into the broader societal anger directed at government officials within China. Jin was a government official in Ordos, giving Chinese citizens yet another example of a lawbreaking official to rail against (according to a Pew Global Attitudes survey, four out of five Chinese citizens consider malfeasance in office by government officials a big problem).

The facts of the case indicate that Jin is a serial domestic abuser who showed no remorse for his criminal actions. In its decision, the court made clear that Jin’s violence against Hong was hardly an isolated incident—it not only detailed Jin’s terrorizing Hong over the several hours that led to her death on April 6, 2016, but also noted specifically that Jin physically attacked Hong many times throughout their relationship. A Caixin summary of the court’s full opinion recounts that in 2013, Jin battered Hong so badly she had to go to the hospital; she initially refused to return home, but finally did so after Jin promised that he would not batter her again.

Jin showed no remorse in court, offering a flimsy intoxication defense: according to Cao Chunfeng, the lawyer representing Hong’s family, Jin blamed his actions on “getting blackout drunk” and stated that, as such, “it couldn’t be ruled out that another person committed the crime.” Jin never admitted guilt in court.

Did Local Procuratorates Pursue the Correct Charges Against Jin?

The court found Jin guilty of “intentional injurious assault” (guyi shanghai zui) and ordered a suspended death sentence (which can be commuted to life in prison after two years). It isn’t clear why an intentional homicide (guyi sharen) conviction was not pursued since the court stated that Jin “battered victim Hong Mei on the evening of April 5, 2016 because she went to a social event, and after getting drunk he battered her until she was dead.” The definitions of these crimes are simple, and under Article 232 of the Criminal Law “anyone who intentionally kills a person” is guilty of intentional homicide, liable for punishment ranging from three years in prison to the death penalty.

Under Article 172 of the PRC Criminal Procedure Law, the people’s procuratorate possesses authority to bring specific crimes to court for criminal prosecution. Although the specific factors considered by the procuratorate in its charging decision are unclear, it would be a poor precedent if the court was persuaded by Jin’s intoxication defense and found that he lacked the requisite criminal intent to commit homicide. In its full opinion, the court emphasized that Jin’s intoxication was wholly voluntary and that he exhibited a long history of physically assaulting Hong. His intent to kill can be deduced from his actions over several years. If China’s legal authorities refrained from prosecuting Jin to the fullest extent of the law, they risk sending the message that alcohol intoxication is at least a partial defense to domestic violence charges.

Leniency for domestic abusers like Jin might also contribute to rising numbers of incarcerated women in China. Domestic violence is a major contributing factor to crime among women, as women who fight back against their abusers can receive severe prison sentences and heavy criminal charges. The Supreme People’s Court has recognized the importance of this issue by developing national sentencing standards for cases involving domestic violence and women. The case of Li Yan (李彦), who had been beaten and tortured by her spouse, is perhaps the most famous example of violent self-defense by a victim of domestic abuse. Li was initially sentenced to death for killing her husband in self-defense before her sentence was reduced in the wake of mounting public pressure in 2015.

China’s Anti-Domestic Violence Law Must Be Fully Implemented

Unfortunately, China’s Anti-Domestic Violence Law came too late for Hong Mei. She was killed on April 6, 2016, just a few short weeks after the law took effect on March 1. Had the law been passed earlier, Hong might have obtained a “personal safety protection order” against her husband in 2013 after she was hospitalized for injuries he inflicted on her during a violent beating. As it was, Hong sought a divorce, but abandoned her effort “under pressure from those around her.” The new law is designed to make it easier for victims of domestic abuse to overcome societal pressure that makes it difficult for women to protect themselves against male perpetrators of domestic violence.

According to the Anti-Domestic Violence Law, victims can apply for personal safety protection orders through their local courts, which must respond within 72 hours, or 24 hours in the case of emergencies. If an application is successful, protection orders can forbid contact between the victim and their abuser and demand that the abuser move out of their residence. If a victim of domestic violence is unable to apply for protection orders on their own, relatives or welfare organizations can apply for the orders on the victim’s behalf. The efficacy of protection orders in stopping domestic violence has already been proven in China. In 2008, the Supreme People’s Court experimented with allowing local courts to use protection orders in lawsuits involving domestic violence; over 90% of the orders proved successful in stopping the violence. However, prior to the introduction of the Anti-Domestic Violence Law, getting a protection order required filing a lawsuit, which took time and placed the burden of proof on the victim. Under the new law, the court can grant a protection order without bringing a lawsuit.

Now that the Anti-Domestic Violence Law has taken effect, proper implementation is key. Hopefully, Hong’s case will inspire tougher enforcement and greater societal support of victims. Although a promising first step, handing down harsh punishment to perpetrators of domestic violence does not address the root causes nor the rising number of women such as Li Yan who, after years of suffering domestic abuse, end up in prison. That said, the Anti-Domestic Violence Law has the potential to make a difference, particularly in the lives of female victims of domestic violence. If fully implemented, it offers them, their children, and other victims of domestic abuse a legal way out of a dangerous situation. For some of these women, it may also mean the difference between freedom and incarceration.

Thursday, June 1, 2017

Revitalization of “Work-Study Schools” for Juveniles?


A boy work-study school in Shanghai. With difficulties in school enrollment this class only has two students. Image Credit: ThePaper.Cn

As China’s juvenile crime rate continues to rise and panic over the prevalence of school bullying and violence sets in authorities in China are turning to new and more effective ways to deal with the problem of correcting serious misbehavior by juveniles—especially those between the ages of 13 and 16.

Lately, there has been renewed attention on the possibility of revitalizing an institution from the past: the “work-study school (gongdu xuexiao).” In Hubei, for example, provincial authorities recently issued a joint opinion authorizing use of work-study schools for students who engage in repeated acts of bullying or violence and fail to respond to other disciplinary measures. Following recent measures adopted by several other provinces including Shandong and Jiangsu, work-study schools are poised to once again play a role in preventing and correcting juvenile crime.

Unless the implementation of work-study schools is accompanied by national legislative reform and a commitment to providing the necessary associated resources, it is unlikely that these schools will be able to play a significant role in addressing the root causes of school-based violence or other types juvenile delinquency.

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Originally established in the Soviet Union as a means of dealing with the problem of orphans after the Second World War, work-study schools first arrived in China in 1955 and became one of several means for handling the problem of juvenile delinquency.

As the name implies, “work-study schools” once included workshops so that students could engage in productive labor to complement their studies. Into the 1980s and early 1990s, police continued to place juveniles in work-study schools, particularly juveniles who had committed minor infractions of the law or those who committted more serious offenses but who could not be held legally responsible due to their age.

With the passage of the Law on Prevention of Juvenile Delinquency in 1999, work-study schools became officially voluntary. Parents or guardians of school-aged children who engaged in one of nine categories of “serious misbehavior,” ranging from disruption of public order to repeated theft to drug usage, could apply to education authorities to transfer their children to a work-study school for a combined course of education, treatment, and correction.

These reforms have generally brought significant changes and improved conditions at the schools. Though still commonly known as “work-study schools,” the institutions no longer require students to participate in productive labor. Instead, the focus is on providing students with an environment in which they can complete middle-school curriculum as part of the national nine-year compulsory education system and receive treatment targeted at correcting their behavioral issues. Though this environment remains highly regimented, with continuous monitoring and an emphasis on instilling discipline, physical punishment is a much rarer occurrence.

But the voluntary nature of the schools has also contributed to their general decline. Stories of the prison-like conditions and corporal punishment of former work-study schools have meant that parents are often reluctant to send their children to these schools, fearing both the stigma attached and the potential for bad habits and behaviors to be reinforced through proximity to other troubled teenagers. Even with a name-change to “special education schools” (zhuanmen jiaoyu xuexiao), the negative reputation of the “work-study school” still lingers.

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As a result, across the country once-full “work-study schools” have seen their student numbers decline despite an increase in delinquency rates. In some schools, teachers have come to outnumber students. Many institutions have been forced to close. This may be one reason why supporters of these institutions are seeking to present them as a valuable asset to society that can help respond to the problem of school violence. Experts on juvenile delinquency like Yao Jianlong see work-study schools as an important form of community-based corrections that can be used as an intermediate measure between doing nothing and mobilizing the machinery of the criminal justice system. For the schools to have that impact, however, there needs to be a mechanism through which students most in need of the schools’ educational offerings would be sent there.

This would, at the very least, necessitate amendments to the Law on Prevention of Juvenile Delinquency and would most likely require complementing legislative changes to ensure that any administrative or judicial decision compelling a child to attend a “special education school” is accompanied by a right to appeal and other procedures aimed at protecting the rights of the child and their parents. Unless such actions are taken, it seems doubtful that even widespread public concern about school violence will see a resurgence of China’s work-study schools.

Tuesday, April 18, 2017

Medical Parole for Li Baocheng: Increasing Judicial Transparency


Prayers at an underground home church in Beijing. Image Credit: BBC.

Li Baocheng (李保成), a 79-year-old Christian Church leader from the central province of Henan, is finally being considered for medical parole after receiving a four-year sentence for fraud and “inciting subversion” in December 2015.

As Dui Hua first reported a year ago, authorities in the city of Nanyang accused Li Baocheng of illicitly collecting “baptism fees” from members of his Huangjinduo Christian Church and organizing a political party aimed at overthrowing the Chinese Communist Party. While awaiting the results of his appeal, Li suffered a brain hemorrhage that left him seriously impaired. Recently published court documents show that judicial authorities have begun deliberating whether Li should serve the remainder of his sentence at home under conditions of medical parole.

About Li Baocheng

Li served two earlier prison sentences, one in the 1970s for “counterrevolution” and again in the 1980s for “disturbing social order.” Nonetheless, he went on to become a successful entrepreneur, winning official praise for providing material support in 1987 to Chinese troops at the Sino-Vietnam border.

Something evidently changed in recent years. Li and four fellow members of his Christian church were taken into custody in April 2015. Their arrest took place just after they led a demonstration of over 200 church members on the streets of Nanzhao County. Demonstrators chanted slogans against the police and judiciary and called for an end to “American imperialism.” Investigators tied the protests to attempts by Li and others to form a new political party that would replace the Chinese Communist Party, which Li allegedly predicted was on its way to “self-destruction.”

In December 2015, after receiving a four-year sentence followed by two years of deprivation of political rights from the Nanyang Intermediate People’s Court, Li and his defense counsel filed an appeal to the Henan Higher People’s Court. But before the higher court could issue its ruling, Li suffered a cerebral hemorrhage and was transferred from the county detention center to a hospital. In August 2016, after Li’s appeal was rejected, his lawyer filed an application for medical parole with the Nanyang Intermediate Court.

For reasons that are not immediately clear, Li’s application was reviewed by the court’s juvenile tribunal. Li underwent a court-ordered medical examination in December 2016, which confirmed that he was suffering from the after-effects of an intracerebral hemorrhage (including paralysis on the right side of his body). Li was also diagnosed with dangerously high blood pressure. A court-appointed medical forensics expert submitted an affidavit certifying that Li’s condition was serious enough to qualify him for medical parole in accordance with legal provisions. The reviewing tribunal agreed and filed the case with the court’s adjudication review tribunal at the end of February 2017. At the time the case was filed, Li Baocheng was recuperating at home.

Medical Parole

Under the current regulations governing the granting of medical release, parole and other non-custodial enforcement mechanisms, the body responsible for reviewing the request must first post details of the case online for a period of ‘public comment.’ For this purpose, courts use a central online platform hosted by the Supreme People’s Court, which is also used as a space to announce sentence reduction and parole decisions. In Li Baocheng’s case, the period of public review concluded on or about March 15.

It’s unclear when the court will issue its decision. Provincial rules stipulate a series of additional review steps before a final decision on medical parole can be made. Once the adjudication review tribunal makes its preliminary decision, it submits the case to the court’s adjudication committee for discussion and then to a division of the court at the next administrative level for review (in this case, the Henan Higher People’s Court).

Assuming that Li Baocheng’s application for medical parole is successful, he will then become the responsibility of the local community corrections unit. Every three months, Li’s health will be monitored to determine whether his condition still qualifies for medical parole. (Typically, release on medical parole is subject to review by the court adjudication committee every six months to assess whether the parolee still qualifies.) All expenses related to medical treatment and care will be Li’s responsibility.

Li’s four-year sentence is due to expire on April 15, 2019.

Greater Transparency?

The procedures surrounding sentence reduction and parole (including medical parole) have tightened considerably in recent years. The process has become more elaborate, with a number of review stages introduced at different administrative levels. In addition, there is an active effort to increase transparency through the use of the Internet and public comment periods. Both these steps have been taken in the interest of reducing the impact of corruption on judicial decision-making and reversing the perception among many in the public that individuals with wealth and power can manipulate the system in their favor.

Increased disclosure of documents related to prosecution and adjudication along with the wider release of information related to sentence reductions and parole proceedings are examples of how China’s judicial system is gradually becoming more transparent. In the process, the increased transparency helps shed light on a criminal justice system that is still quite opaque—particularly where sensitive crimes such as those falling under the category of “endangering state security” are concerned.

Monday, March 27, 2017

China Could Find Lessons From the Fifty States for Reducing Recidivism of Women Offenders (Part 2 of 2)


Image Credit: Getty Images.

Read part 1 of this article here.

When Objectives are Clear, Non-Custodial Measures are More Effective

In addition to the charts and statistics presented above, several recent empirical studies support the claim that targeted non-custodial treatment programs can help reduce the number of women in prison by limiting recidivism among women offenders. In California, a study carried out by researchers at UCLA found that among 1,182 women who participated in a community-based aftercare program (which included residential drug abuse treatment for 6 to 15 months, comprehensive case management, vocational assistance, and parenting and health-related services), those who completed the aftercare program were 36 percent less likely to return to prison compared with those who did not complete the treatment program. These results are summarized in Figure 4 below:

Figure 4. Results of UCLA Study

In a different study from 2006, funded by the National Institute of Justice, researchers found that drug offenses often lead to repeat arrests for women and recommended “enhanced substance abuse treatment in prison and in the community” to combat recidivism. Because women tend to be non-violent offenders, the researchers also recommended that re-entry and parole should emphasize the delivery of treatment and services rather than surveillance.

The state of Oklahoma, as seen in Figure 2, features the worst record among the US states of keeping women out of prison. Surprisingly, an alternative to the prison program in Tulsa, a city in Oklahoma, called Women in Recovery has produced tangible results that demonstrate the effectiveness of non-custodial measures, even when the broader locality lacks a systematic approach to reducing recidivism. The recidivism rate for women who complete the Women in Recovery diversion program in Tulsa is only 4.9 percent; the rate for all of Oklahoma is almost three times higher. Not unexpectedly, the Tulsa Women in Recovery program addresses the underlying issues leading to the incarceration of women, including sexual and physical abuse, family separation, mental health problems, substance abuse, and employment readiness.

Difficulties of Implementing Non-Custodial Measures

Although the research and data shown above support the idea that non-custodial measures for women help to reduce recidivism, there are several challenges to the successful implementation of these alternatives to incarceration. In Massachusetts, for example, low numbers of women and girls are incarcerated and a wide variety of specialized alternatives to incarceration are available, with many of these programs demonstrating that they reduce short and long-term costs. Nonetheless, public funding for these programs remains unstable.

Alternative custody programs can also be slowed by bureaucratic red tape. In California, alternative custody programs help women transition out of prison life, but the program’s application process is daunting—the Department of Corrections and Rehabilitation can take anywhere from six months to a year to make a decision. State officials can also have trouble convincing women to participate in alternatives to incarceration, a problem evident in the UCLA study mentioned above—even though the program reduced recidivism and proved effective, only about one-third of women participated (again see Figure 4).

Fortunately, some states continue working to improve non-custodial measures. The Wellesley Centers for Women finds that while funding for diversion programs in Massachusetts can be unstable, other programs that feature “intermediate sanctions” and “accountability for participants’ substance use and program attendance” have proven more resilient. Further, states can become more proactive when mandated to do so, for instance, diversion programs in California began to open more quickly to comply with a court order to expand alternative to custody programs, which stemmed from a wider national effort to reduce prison overcrowding.

Can Lessons from the Fifty States Address China’s Rising Population of Women Prisoners?

The experiences of several American states show that non-custodial measures can reduce recidivism of women offenders, thereby helping to lower the number of women in prison. This lesson could be useful for China, which is dealing with its own rapidly rising prison population. As Dui Hua has pointed out, as of mid-2015, China had more than 107,000 women in prison, up 3.2 percent from the previous year, and up more than 50 percent since 2003. On the non-mainland Chinese localities of Hong Kong and Macau, the issue of women in prison is also a major problem—the World Prison Brief has noted that the proportion of women in prison in special administrative regions of China such as Hong Kong (19.4 percent) and Macau (21 percent) are the largest in the world.

Although it is important to consider the many differences between the US and China, there are some similarities that show how the experience of the US states can be helpful for Chinese officials. Research has shown that, like the experiences of many US states, women prisoners in China suffer from mental health disorders, frayed contacts with the outside world, and drug-related arrests. Chinese prisons routinely limit women prisoners’ contact with the outside world, which can exacerbate psychological distress, disconnect from family, and lack of a support structure upon release from prison; a large majority (86 percent) of Chinese women prisoners are in prison for nonviolent crimes, nearly half of which are drug related.

These similarities suggest that there are valuable lessons that many jurisdictions, including China, could study to limit the number of women in prison. The statistics, tables, and empirical research cited above show that targeted non-custodial measures that include mental health treatment, addiction recovery, and family support can benefit society and reduce public costs by reducing recidivism (up to 36 percent, according to the UCLA study). The similar characteristics of women in prison across countries and the positive results in several US states indicate that addressing the underlying causes of incarceration among women might prove effective in limiting incarceration in China.

China Could Find Lessons From the Fifty States for Reducing Recidivism of Women Offenders (Part 1 of 2)


Image Credit: Getty Images.

In countries across the world, punitive policies are contributing to serious prison overcrowding issues, with many national prison systems holding more than double their official capacity. And what’s more is that the number of women in prison is growing at a faster rate than men.

Part of the problem is incarceration itself: instead of deterring repeat offenses, prisons act as ‘schools of crime’ that increase the likelihood of women prisoners to re-offend. Prisons function to isolate offenders from their family support networks, reduce job skills, and harm the mental health of offenders. By contrast, non-custodial measures have routinely proven to prevent recidivism and lower the number of women in prison. In 2010, the United Nations issued The Bangkok Rules, which advocates for non-custodial measures for women prisoners partly because of this interrelation between prisons and recidivism : “The failure of imprisonment to address the underlying factors leading to offending behavior by women is reflected in the increasing rate of re-offending among women in some countries.”

Substance abuse and mental health disorders are among the primary factors leading to the incarceration of women. To give just one example, The Greenhope Services for Women, an organization based in New York that provides substance abuse and mental health treatment to women offenders reported that 100% of its service users suffered from substance abuse and 70% from mental health related trauma. In addition to substance abuse and mental illness, other factors that contribute to re-offending and rising rates of women in prison include homelessness, unemployment, and loss of family support structure.

Implementation of Non-Custodial Measures for Women Offenders in US States

With the realization that prisons often serve to reinforce criminality rather than treat it, several states across the US have implemented non-custodial measures to limit the public cost of recidivism by addressing the root causes of female incarceration. Alternatives to custody include jail diversion, work release, electronic monitoring, fines, community service orders, substance abuse and mental health treatment, family reunification, and housing assistance. In general, non-custodial measures can be flexibly administered before an offender is placed in jail, before placement in prison, or after serving some time in prison.

Dui Hua researched the alternatives to custody available to women offenders across different US states. Figure 1 is a non-exhaustive summary of the different non-custodial measures that are implemented at the state level or below in the US:

Figure 1. Selected Non-custodial Measures for Women in Prison in US States

Type of Non-Custodial measure What Stage is the Non-Custodial Measure used? Non-Custodial Programs Can Include the Following Features States in which measures have been utilized (non-exhaustive)
Jail diversion/furlough, including for pregnant women; substance abuse and mental health treatment Pre-custody Officials including local police help identify mental illness or substance abuse issues in suspected offenders and provide treatment instead of incarceration. MA, NY, OK (Tulsa), NC, NY, IL
"Intermediate" sanctions Pre-custody Substance abuse programs offer "accountability"/harsher sanctions if substance abuse treatment/attendance goals are not met. MA
Home detention/electronic monitoring Pre-custody Instead of prison, offenders serve sentences in specific residential locations, but offenders are required to submit to monitoring by electronic or GPS devices. CA
Gender-specific program Pre-custody Specific "women’s track" programming aims for a gender and culturally responsive approach to women offenders. MA
Work release Pre-prison (i.e., in-jail) Offenders are allowed to leave custody for specified periods of time to work or perform community service. CA
Mental health treatment Post-prison Programs offer comprehensive residential treatment, day treatment, or outpatient programs; non-profit organizations can act as service providers. NY, CA, CO
Substance abuse treatment Post-prison Programs designed to assist women offenders who have ongoing struggles with addiction. NY, CA, PA, WI, CO, AL, AZ, MI, NJ
Employment coaching/job training Post-prison Programs aim to prepare candidates for job interviews and employment; non-profit organizations can act as service providers NY, WY, PA, KS, IL, WY
Early release for prisoners, with family reunification Post-prison Residential programs designed to help prisoners serve limited portions of prison sentences in a non-prison residential facility; children of offenders allowed to live with their mothers. CA, MA
Housing assistance Post-prison Programs help released offenders find safe and affordable housing; non-profit organizations can act as service providers. NY, PA, KS, MO, IL, MD
Broad re-entry to society Post-prison Programs do not specialize in particular areas, instead providing general assistance to women recently released from prison. MI, MD, IL, MN, TX, NY, PA, VT, CA, NY, FL, NY, AZ, NC, MO, RI

Sources: National Institute of Corrections; The Wellesley Centers for Women; Greenhope Services for Women; Women’s Prison Association; The New York Times

This analysis, in combination with data on women and girls collected by The Sentencing Project, suggest that non-custodial programs tend to offer greater services, at various stages of women’s conflict with the law, and in states that have done a better job of keeping women out of prison. In states like Massachusetts, for example, the emphasis on non-custodial measures appears to contribute to its low rate of incarceration—only 15 per 100,000 women are imprisoned. For context, the average rate of women in prison across all US states is 58 per 100,000, and the state with the highest rate, Oklahoma, incarcerates 142 out of every 100,000 women. The rate of incarceration for women across US states by The Sentencing Project, as of 2014, is provided in Figure 2:

Figure 2. Highest and Lowest Female State Sentencing Rates (per 100,000), 2014.


In addition to the benefits of applying a gendered perspective to incarceration, a youth perspective also yields a better understanding of the benefits of using non-custodial measures. Similar to the variation in the treatment of women offenders throughout the US, there is large variation among US states regarding the treatment of girls in conflict with the law. The national rate of incarceration for female juvenile delinquents is 50 per 100,000; in Wyoming, 209 girls are incarcerated per 100,000; by contrast, in Massachusetts, only 10 per 100,000 are incarcerated.Figure 3 presents rates of incarceration of women prisoners for the top five and bottom five states, by rates of their confinement of girls.

Figure 3. Highest and Lowest State Rates of Confinement for female juvenile prisoners (per 100,000), 2013.


Policymakers in different countries could do well to examine the reasons why certain US states have been successful in limiting the rate of girls in confinement. [1] A recent US Department of Justice report recommends that girls in conflict with the law should be kept in the least-restrictive settings possible, mainly because “serving youth in community-based environments can reduce additional justice system involvement, lead to positive outcomes for the youth, and reduce system costs.” This advice might be particularly useful for legal reformers in China, where the juvenile corrections system has yet to create regulations or stable models for community corrections institutions aimed at reducing the number of girls in confinement. Ultimately, the recommendations are similar for both girls and women in conflict with the law: non-restrictive settings should address the underlying factors contributing to criminal activity—especially mental health, substance abuse, family support, and vocational training.


1. The age limit for juvenile residential facilities in the US depends on state laws, however the approximate age range cited by the researchers in Figure 3 is from 12 to 18 years old. Source: The Sentencing Project.   Return to Article

Continue reading part 2 of this article here.

Friday, February 24, 2017

Will a New Judicial Interpretation on Cults Lead to Greater Leniency?


Underground church goers watch a service on a video screen in Beijing. Image Credit: Express UK.

Since coming into force in October 1997, Article 300 of the Criminal Law “organizing/using a cult to undermine implementation of the law” has been frequently used to suppress groups such as Falun Gong, unofficial Christian groups, Buddhist sects, and over a dozen qigong groups including Zhonggong. Accompanying this law, two judicial interpretations were jointly issued by the Supreme People’s Court and Supreme People’s Procuratorate on October 1999 and June 2001, respectively, to explain the law's specific application. Effective since February 1, 2017, the latest joint interpretation of Article 300, consisting of sixteen articles, adds a new penalty range based on leniency and serves to redefine the sentencing standard.

New Sentencing Standard

The new interpretation incorporates previous changes made to the ninth amendment of the Criminal Law in November 2015 concerning the standard of punishments for cult crimes. Of significance is the elaboration of what is meant by “relatively minor circumstances” that can result in a sentence of three years or less, detention, surveillance, deprivation of political rights, fines, or combined penalties with fines. Such “circumstances” are defined in the interpretation as acts that inflict lighter social harm, which are measured by quantifiable factors such as: the number of cult propaganda materials produced and disseminated, the number of views or downloads of a cult propaganda video, the amount of economic loss caused by cult activity, or the number of members recruited by the cult. An act is considered relatively minor when such an amount or number falls below one-fifth of what is accepted as the new normal standard (see below).

In the future, we can expect to see more cult offenses deemed as “relatively minor” cases, partly because by raising the benchmark for evidence necessary to imprison cult prisoners for up to three to seven years, the new interpretation has expanded the scope of activities that fall under the category of “minor” cases. For instance, the quantity of print propaganda materials (such as leaflets, banners or newspapers) produced or disseminated for cult purposes that constitute a normal offense has now been raised to 1,000, a significant leap from 300, as stated in the 2001 interpretation. For propaganda in the form of books or publications, the quantity for a normal offence requires evidence of at least 250 materials, again a significant leap from the previous count of 100 publication materials. The interpretation also quantifies a number of additional criminal behavior used to determine sentencing.

List of criminal behaviors revised in Article 2 of the interpretation:

  • Recruiting over 50 members;
  • Swindling or leading to an economic loss of over one million yuan;
  • Using at least 500 banknotes as a means to disseminate information about a cult;
  • Manufacturing or disseminating cult propaganda over a certain amount:
    • over 1,000 leaflets, spray paints, pictures, banners and newspapers;
    • over 250 copies of books or publications, cassettes or audio-videotapes; or logos or signs;
    • over 100 CD-ROMs, U-disks, memory cards, mobile hard drivers or other mobile storage devices;
    • over 50 banners.
  • Using the Internet to disseminate information about a cult:
    • manufacturing or disseminating over 200 digital pictures or articles, over 50 copies of e-books, publications, audios or videos, electronic files with over five million characters, or electronic files exceeding 250 minutes;
    • composing or making over 1,000 messages or phone calls;
    • using online chatrooms, chat groups, WeChat, microblogs or other social networking services to spread information about a cult involving over 1,000 members or followers;
    • cult messages with over 5,000 views or clicks.

A circumstance is considered “especially grave” when the quantity is five times more than the numbers stated above, and can lead to imprisonment of seven years or more. Although the ninth amendment to the Criminal Law increased the maximum sentence from 15 years to life, it has not been imposed for the single offense of Article 300. For example, while the Buddhist leader Wu Zeheng (吴泽衡) received a life sentence for charges of fraud and rape, his crime related to cult activity afforded him a sentence of 12 years.

Greater Leniency Despite a Surge in Cult Cases

Dui Hua’s Political Prisoner Database has collected information on over 8,000 individuals convicted of Article 300 of the Criminal Law between 2000-2016. Most convictions in the early years after Falun Gong was labelled an “evil cult” in 1999 are now considered “particularly serious circumstances” under the new interpretation. During that time, a number of high-profile leaders such as Wang Zhiwen (王治文) and Li Chang (李昌) were given lengthy sentences of over 10 years for multiple offenses.


Image Credit: Dui Hua Foundation.

Since December 2012, the total number of cult convictions recorded in the database has surged as a result of the nationwide clampdown on the group the Almighty God, and an improved level of judicial transparency due to the more regular online posting of court judgments. Nonetheless, the appearance of a new religious threat does not appear to be met with the same intensity compared to the Falun Gong crackdown of the early 2000s. Most convictions of Almighty God members resulted in sentences of three to four years' imprisonment, and fewer than 10 percent of all cult sentences in the same period exceeded seven years. Also noteworthy is the surge of cases now considered relatively minor with sentences of three years or less. In 2016, over half of the convictions for cult activity are now considered relatively minor cases according to the new interpretation, superseding the number of ordinary cult cases for the first time since the offense was codified in the Criminal Law.

Leniency in the form of shorter sentences is a further indication of an overall relaxation of the clampdown on cults. Article 9 of the interpretation states that:

“a perpetrator can be exempt from indictment or criminal punishment if he or she expresses sincere remorse about his wrongdoing, and exhibits a willingness to leave the cult and cease joining in its activities. Those who are deceived or intimidated into joining the cult will not be handled as criminals.”

Showing remorse is a prerequisite for prisoners seeking clemency, and it is not uncommon for prisoners charged with cult crimes to receive sentence reductions after expressing remorse for their behavior. Dui Hua’s Political Prisoner Database recorded over 300 instances of clemency in 2014 for cult prisoners and in 2015, the number surged to nearly 500.

Deprivation of Political Rights

Despite the trend towards greater leniency in sentence reductions, public security authorities also appear ready to continue exercising control over cult prisoners even after they have completed their sentences. Article 14 of the interpretation states that a supplemental sentence of “deprivation of political rights” (DPR) up to five years may be imposed on cult prisoners. Prior to the interpretation, only prisoners sentenced for the crime of “endangering state security” and a number of violent crimes were subject to a supplemental DPR sentence, depriving them of the right to vote, the right to stand for office and the right to hold a position in a state-owned company, regardless of the fact their sentences had already been completed. Of particular concern to cult prisoners is that individuals under DPR are prohibited from writing articles or giving interviews.

Dui Hua will closely monitor the application and impact of this new interpretation for cult prisoners. The new sentencing standards suggest an expansion of crimes considered “minor” and hopefully a reduction of cult prisoners serving long sentences. That said, the enhancement of the use of DPR may present new opportunities for public security authorities to exert control over cult members even after their release.

Wednesday, February 8, 2017

Leping 5.24 Murder Case: Wrongfully Convicted Seek Justice From Those Responsible


In May 2015, lawyers and activists protesting outside of Jiangxi High Court for the right to review the Leping case file. Source: ifeng.com, China Digital Times

On January 16, a group of lawyers filed a criminal complaint with prosecutors in Jiangxi Province against law-enforcement and judicial personnel responsible for one of China’s most infamous cases of wrongful conviction. There is yet no word on whether prosecutors will act on the complaint.

Late last year in the city of Leping, four men were acquitted of murder and rape, charges dating back to a sensational case from May 2000 involving the murder and dismemberment of a man and a woman. Local police came under serious pressure to solve the case after it went unsolved for two years, leading them to arrest Huang Zhiqiang, Fang Chunping, Cheng Fagen, and Cheng Lihe in 2002. These men have spent most of the last decade and a half behind bars, many of those years awaiting execution.

The former defendants in what became known as the “Leping 5.24 murder case” were convicted of murder, rape, and robbery and sentenced to death by the Jingdezhen Intermediate People’s Court. That verdict was overturned on appeal, and the case was sent back for retrial after the defendants alleged that their confessions had been obtained through torture. Despite the continued insistence that torture had taken place and inconsistencies in the defendants’ testimonies, death sentences were handed down again in 2004, only to be suspended by a two-year reprieve on appeal.

In 2011, the allegations of torture gained more credibility after a suspect in another criminal case confessed to having committed the crimes for which the four men had been convicted. Despite this confession, it still took officials another four years to reopen the case, and even then the defendants’ lawyers were prevented from accessing necessary case files. Meanwhile, lawyers and family members held a weeklong demonstration outside the provincial court as well as nightly candlelight vigils.

The lawyers’ protest took place amidst an ongoing crackdown of rights lawyers in China, who employ pressure tactics such as mobilizing public opinion to seek justice. In fact, an activist named Wu Gan—known more commonly by his online name, “Super Vulgar Butcher”—was detained in connection with the courthouse protest and now awaits trial on charges of subversion in Tianjin.

Neither the lawyers’ protest nor the charges facing Wu Gan feature in a recent opinion piece in The Beijing News, in which lawyer Ruan Ziwen focuses on the justice still due these four men following their release. Victims of earlier cases of wrongful conviction and even wrongful execution have received state compensation following their exoneration. Ruan makes it clear that compensation is not enough; accountability is also needed if there is to be any hope of changing the behavior of law enforcement officials and judicial personnel and preventing wrongful convictions.

The authorities in Jiangxi should be given credit for acknowledging past mistakes in the Leping case and righting the wrong that has been done. But it should not be forgotten that the four original defendants in the Leping case are free today largely because of the efforts of lawyers and others who continuously fought to challenge the conviction and demand justice. In China’s current legal environment, where questioning a court decision can be construed as a challenge to judicial authority or even be considered a politically subversive act, it remains to be seen how many lawyers will continue to stand up on behalf of defendants like those in the Leping case.

*

It is Right and Proper for Victims of Injustice to File Complaints

Ruan Ziwen
The Beijing News, January 17, 2017

According to The Beijing Times social media channel, the five men wrongfully convicted in the "Leping 5.24 Murder Case”, together with their lawyers, have filed a criminal complaint with the Jiangxi Procuratorate, accusing police and procurators of “intentional homicide” and the Jiangxi High Court judge, who originally handed down the sentence against Huang Zhiqiang and three other defendants of “bending the law for personal interest”. The complainants have requested that their allegations be submitted to the Supreme People’s Procuratorate and that provincial law enforcement and judicial authorities completely recuse themselves from the case.

The difficult step, taken by these victims of wrongful conviction with the help of lawyers, to file these criminal complaints has immeasurable practical significance and social impact.

The past few years have seen the reversal of a number of wrongful conviction cases with major national influence. Not too long ago, the defendants in the Leping case were acquitted by the Jiangxi High Court. According to the provisions of the State Compensation Law, victims of wrongful conviction may seek compensation ranging from a few million yuan to tens of millions. In cases ranging from the Huugjilt case, to the case of the uncle and nephew surnamed Zhang, to the Nie Shubin case, the victims or their immediate family members all applied for state compensation, however none filed criminal complaints against those responsible for the case.

From a technical legal perspective, there are challenges involving discovery and making a legal case that must be overcome in order to prove criminal wrongdoing by someone carrying out their duties in the handling of a case. From a practical legal standpoint, without institutional safeguards or effective oversight mechanisms, it is also difficult to get law enforcement or judicial bodies to bring “their own” to justice. It is therefore not hard to understand the sense of helplessness that makes victims of injustice unwilling to initiate complaint procedures.

Despite this environment, the victims of injustice in the Leping case were still willing to file their complaints. The key significance of their action is that they are claiming their inherent rights. At the present, when a country governed by laws [is advocated], there is long-lasting value in using an individual case such as this to force law-enforcement personnel and judicial authorities to investigate, prosecute, and adjudicate in accordance with the law.

If we take a moment to sift through the wrongful convictions that have been overturned in the past few years, we find that nearly all of them involved coercion of confessions through torture, insufficient evidence, or unclear facts. Nevertheless, contrary to the rule of law, the investigation, prosecution, and adjudication processes all managed to produce a guilty verdict and force victims to either die an unjust death or spend years in prison for crimes they didn’t commit. It’s hard to chalk this up simply to a lack of professional quality among those who handled the case; sometimes, the problem is that those handling the case perverted the course of justice.

Reasonably speaking, the exercise of the Leping victims’ rights is both justified and normal. In compliance with the law, the Jiang Xi legal authorities should grant them adequate protection and response.

Even though many wrongful convictions are connected to institutional problems, inadequacies of laws and regulations, or even human interventions and policies, these things cannot be used as excuses for legal officials to evade responsibility in handling cases. The legitimacy of how evidence is obtained, the proper finding of facts, and the proper application of the law have all been explicitly formulated in the provisions of both substantive and procedural law, even when we look at the legal provisions from 10 or 20 years ago.

It’s possible that some of the people responsible for these miscarriages of justice lacked respect in the law or lacked faith in the idea of in judicial fairness. If that’s the case, the malicious intent behind their deliberate actions and perversions of the law will be relatively evident.

No matter what the outcome will be, the fact that the victims of the Leping wrongful conviction case have filed their complaint ought to get the attention of those who design the legal system. It also ought to alert those in the judicial and law-enforcement agencies of the need, in the future operation of the legal system, to reduce and eliminate wrongful convictions and give due legal punishment to those legal personnel responsible for making those wrongful convictions.

Thursday, January 26, 2017

Juvenile Justice Trends in the US Could Provide Lessons for China’s Courts (Part 2 of 2)

Transfer Rules from Juvenile to Criminal Court

Despite the establishment of more than 3,000 juvenile tribunals and an Office of the Juvenile Court by the Supreme People's Court there remains to be no unified system of juvenile courts in China. The transfer of serious cases involving juveniles to criminal courts in the US might become an issue in China if a more robust Chinese juvenile justice system arises to address the recent spate of violence among very young offenders. In the early 2000s, US juvenile judges began re-establishing their authority to decide whether to transfer youth in conflict with the law from juvenile court to the criminal court and corrections system. Transfer and waiver of juvenile court jurisdiction is frequently used in cases involving serious crimes by offenders aged 16 and younger.

The 1966 US Supreme Court opinion in Kent v. United States lists eight factors that a juvenile court should consider in determining whether to transfer a case. The factors include the seriousness of the offense, whether the crime was against person or property, the juvenile’s background, and likelihood of rehabilitation. However, in the decades immediately following the Kent decision many states enacted laws to bypass these factors, allowing prosecutors—instead of judges—to decide whether to transfer juveniles. (Some states even allow for automatic transfer.) The states that allow prosecutors instead of judges to file juvenile cases in criminal court, as of the end of 2011, are listed in Chart 2.

Chart 2. States Allowing Prosecutors to File Juvenile Cases in Criminal Court.


Chart source:NJJN

Several recent laws—many passed during the November elections—re-invigorate judges’ authority to make transfer decisions and rely on factors like those pronounced in Kent. In California, prosecutors were previously allowed to file juvenile cases directly in adult criminal court if they determined that the crime was not appropriate for the juvenile system. But in November, California voters approved Proposition 57, which eliminates direct filing and requires juvenile court judges to determine whether a juvenile will be tried as an adult. The California law also speeds up parole consideration for non-violent felons. In Nevada, new state laws provide that juvenile courts should have exclusive jurisdiction over anyone younger than 16 who is charged with serious crimes like attempted murder; previously, those youths would have been tried in criminal court.

Similar changes have also occurred in other parts of the country: at the age of 12, Paul Gingerich became the youngest person sentenced in adult court in Indiana history, sparking outrage from child welfare advocates. The outrage over Gingerich’s transfer to criminal court likely spurred legal changes that now allow Indiana judges to re-sentence juveniles previously transferred and sentenced to prison terms. With the population of juvenile girls rising, gender also might become a factor for judges to consider during transfer proceedings. As prison policy and practice were designed for adult men, juvenile girls present unique challenges to legal officials; girls in conflict with the law have historically disproportionately high rates of sexual abuse victimization, contributing to high rates of mental health problems. A recent report indicates that such girls have a high need for services but present a disproportionately low risk to the community.

Confidentiality of Juvenile Records and Court Proceedings

Reducing juvenile recidivism also relies on ensuring youthful offender’s successful reintegration into society, whether by protecting their opportunities to complete education or obtain access to employment. In achieving these goals, it is critical that judicial authorities enhance the confidentiality of court hearings and expunge juvenile court records, however the practice of these two procedures vary among American states.

Chart 3. Confidentiality of Juvenile Court Hearings, By State (2011)


Chart Source: NJJN

The earliest American juvenile courts held public hearings, but by the 1950s, many states restricted public access and media reporting on juvenile court proceedings to prevent juvenile stigma. However in late 1980s, many juvenile courts re-opened their doors to the public amid concerns about rising juvenile crime rates (see Chart 3, above). However, some states continue to close court hearings when a defendant is below a certain age, properly recognizing that confidentiality is an even greater concern when the suspect is very young.

Chart 4: The Sealing of Juvenile Court Records, By State (2011)


Chart Source: NJJN

Regarding juvenile record sealing, 31 states mandate that juvenile court records cannot be sealed, expunged, or deleted if the court finds that the offender has subsequently been convicted of a felony, misdemeanor, or statutorily-specified juvenile offense (see Chart 4, above). Despite these restrictions, 33 states allow record sealing or expungement in some form, and since 2012, several states have enacted laws to allow juveniles to petition for expungement of records.

Dui Hua has noted in previous collaboration with China’s courts that juvenile offenses can follow a person through life, leaving a lasting impact both on the young offender and on the broader society that collectively bears the repercussions of recidivism. Further policy changes allowing for the appropriate closing of juvenile court proceedings to the public and for juvenile record sealing could prove valuable to US and Chinese policymakers.

Conclusion

Recent trends in US juvenile justice recognize that American juvenile policy in the 1980s and 1990s was based on several mistaken assumptions about the nature of the adolescent brain and the effectiveness of harsh punishment against juveniles, especially those aged 16 and younger. Current Chinese juvenile court reformers would do well to avoid the same mistakes made in the US during the 1980s and 1990s.

An important first step would be to acknowledge, in light of recent advancements in adolescent neuroscience, that children are not simply small adults. As retired California Superior Court Judge Leonard Edwards writes, progressive juvenile justice reform requires expanding the role of the juvenile judge, who possesses higher quality and quantity of information relative to police or prosecutors. Hence, judges are in “the best position to determine whether a child should be prosecuted as an adult or retained in juvenile court.” Since the beginning of the 2000s, American judges have dramatically increased the implementation of non-custodial measures, helping to limit the transfer of juvenile offenders from juvenile to criminal court.

From this perspective, limiting juvenile incarceration is a “win-win” for those seeking more humane treatments for juveniles as well as for those most interested in lowering the costs of government programs. The cost effectiveness of reducing juvenile incarceration coupled with a deeper understanding of the adolescent brain and the community-based interventions that elicit favorable responses from juveniles should lead to fewer young people housed in state institutions. Conversely, if juvenile recidivism is allowed to increase, harmful effects will only be more severe as the chances of criminal behavior multiply into adulthood.

The juvenile court policies discussed here are but a small sample of a complex and extensive topic. Please investigate the links above to explore other important juvenile policy issues including: access to counsel, conditions of confinement, and status offenses like truancy—the proper handling of which are critical to the long-term reduction of crime and societal tension.

Wednesday, January 25, 2017

Juvenile Justice Trends in the US Could Provide Lessons for China’s Courts (Part 1 of 2)


A young offender confined in the US. Image credit: Juvenile in Justice Project.

Amid high-profile reports of violence among children under the age of 14 in China, voices from several corners of Chinese society have called to lower the age of criminal responsibility. However, some Chinese legal experts remain opposed to adopting a more punitive juvenile justice regime and a look into the recent history of the US juvenile justice system supports a more cautious approach. Since 2000, legislatures throughout the United States have been scrambling to correct excessive punishments imposed upon young offenders in the 1980s and 1990s. Since 2000, several states have enhanced the authority of their juvenile courts, and by 2015, 41 states had raised to 17 the maximum age for transferring offenders to criminal court (often called “adult court”).

In China, we are seeing developments that mirror the turn the US took in the 1980s and 1990s against a rehabilitative and developmental approach to juvenile justice, likely also driven by an upsurge in media reportage of violent cases among the very young. By the mid-1990s, some experts infamously began referring to American juvenile offenders as “super-predators”; the number of incarcerated youth soared, states across the US lowered the minimum age to transfer juveniles to criminal court, imposed mandatory minimum sentences on juveniles, and even allowed for juveniles to face life without parole (which was ultimately reversed in 2012 by the US Supreme Court).

The more recent attempt in the US to reverse decades of excessive juvenile punishment could prove instructive for Chinese legal officials contemplating various reform “models” for their country’s juvenile justice tribunals. The following sections discuss three major categories of state-level court reforms designed to rein in costly and unnecessary juvenile incarceration in the US: (1) implementing non-custodial measures for juvenile offenders; (2) increasing judicial authority over the transfer of juveniles from juvenile court to criminal court; and (3) enhancing the confidentiality of juvenile records and court proceedings.

Non-Custodial Alternatives to Juvenile Incarceration

Perhaps the most important method of limiting juvenile incarceration and recidivism put forth is the implementation of non-custodial alternatives to incarceration. The recent proliferation of non-custodial measures in the US is in part the result of scientific advancements in the fields of adolescent neurology and developmental psychology that were unknown to policymakers in the 1990s. The findings indicate that the prefrontal cortex of the adolescent brain is not fully developed, inhibiting their decision-making abilities and mitigating the culpability of very young juvenile offenders. Chart 1 lists nine “Comeback States,” as identified by the National Juvenile Justice Network, which since 2001 have been particularly successful in implementing non-custodial alternatives for juveniles in response to new findings in neuroscience.

Chart 1. Changes in Juvenile Confinement in American “Comeback States” Since 2001.


“Comeback States” that have seen dramatic declines in juvenile incarceration.Source: NJJN

In these “comeback” states, scientific advancements have spurred changes aimed at rehabilitating juvenile offenders, especially those under 16, while also reducing the risk to society with lowered juvenile recidivism rates. For example, in Ohio, juvenile court judges can sentence offenders to non-custodial measures including “supervised release programs…home detention, electronic monitoring, day and evening reporting centers, and local treatment programs.” In Connecticut, a 2004 law, requires officials to create a continuum of community-based services, including substance abuse and mental health treatment, that juvenile courts can implement to address problems facing young offenders without resorting to incarceration. In California a 2014 law ensures greater access and usage of non-custodial alternatives by requiring juvenile court judges to consider factors including age and mental health status before deciding whether to transfer a juvenile offender to the criminal court system.

Advancements in scientific research have also helped limit harsh penalties such as solitary confinement on juvenile offenders. Because of its proven to be severe effects on the very young, solitary confinement should not be used for punishment of young offenders, and non-punitive solitary confinement should only be used when a youth is engaging in behavior that creates an imminent risk of serious harm.

With more than 65 percent of the 2 million youth arrested each year in the US suffering from some form of mental health disorder, the use of mental health rehabilitation as a non-custodial measure has become increasingly widespread. For example, in 2005, the state of Washington expanded mental health services to address treatment gaps among juvenile offenders and a Colorado law now allows juvenile judges to impose suspended sentences to allow rehabilitation and treatment for juveniles with developmental disabilities or mental illness. Alongside mental health issues, the intersection of gender is a worthy consideration in developing a juvenile justice system that emphasizes non-custodial measures. Juvenile girls tend to be at greater risk in developing serious mental health problems, as noted in a 2012 Department of Justice report stating that adolescent “girls are more likely than boys to attempt suicide and to self-mutilate.” Further, juvenile girls are also less likely to pose a significant public safety risk than their male counterparts and “would be far better served in nonresidential treatment facilities close to their own homes." The fact girls are more likely to suffer from serious mental health issues while also posing a significantly lower public safety risk suggest gender might be another factor for juvenile judges to consider in deciding on penalties for young offenders.

Evidence-based measures have provided juvenile court judges with several community-based intervention options to reduce incarceration rates, without increasing public expenditure. American states are finding new ways to fund community-based alternatives. In Georgia, for instance, the ability of courts to impose non-custodial sanctions has been supported by an incentive grant program to distribute federal and state funding to counties serving the state’s at-risk youth. Provisions in Ohio and other states save scarce public funds by shortening juvenile detention time.