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.

Monday, March 8, 2010

Some Thoughts on China’s Hukou System & Its Impact on Criminal Justice

A rare joint editorial was recently published in 13 major metropolitan newspapers in China calling for substantial reforms to the country's household registration (or hukou) system. For decades, the hukou system, which categorizes all Chinese citizens as either urban or rural, severely limited citizens' freedom to migrate within China. The demands of China's market economy have relaxed many of its most severe restrictions, but for millions of rural migrants working in China's cities, the hukou system still limits access to many basic government services and reinforces sharp inequalities between locals and outsiders.

This revived criticism of the hukou system also reminds us of recent illustrations of the system's impact on China's criminal justice system, most notably in Beijing, which has unique regulations requiring that all non-residents sentenced to prison serve their sentences in their home provinces.

As the article from Beijing Youth Daily (Dui Hua's translation below) reports, the importance of household registration extends to suspended sentences as well, with judges in Beijing admitting reluctance to grant suspended sentences to non-residents because of ambiguity over enforcement responsibility. With no legal clarity over whether "place of residence" refers to one's actual residence or one's hukou, judges fear that if offenders slip through the cracks and don't receive proper monitoring, criminals might re-offend and bring unwanted scrutiny during judges' performance appraisals. Therefore, the unstated rule applied by judges is that residents and non-residents be sentenced differently for similar criminal acts.

Interestingly, this ambiguity about the definition of "residence" appears to explain why Beijing police were able to hold "Charter 08" co-signer Liu Xiaobo under "residential surveillance" in an unspecified location—not in his Beijing home—from December 2008 to June 2009. Since Liu's hukou is in Liaoning Province, police there classified his home in Beijing as a "temporary residence," which, under one interpretation of the law, enabled them to choose a different location to carry out their "residential surveillance." There are other possible interpretations of "residence," but it is perhaps natural for the police to have chosen an option that gave them more flexibility—and makes it less clear that they acted "illegally" in so doing. And due to the hukou system (and Beijing's unusual rules), Liu will almost certainly serve his 11-year sentence for "inciting subversion" in Liaoning, rather than Beijing.

Suspended Sentencing "Discriminates" Against Non-Residents
Household Registration Primary Factor in "Different Punishments for the Same Crime"
Separation from Place of Household Residence Leads to Unenforceable Supervision Vacuum

Reported by Hou Yijun, Beijing Youth Daily, February 20, 2010

     Yesterday, this reporter randomly reviewed 60 verdicts in minor criminal cases published on Beijing court websites, 30 each involving Beijing residents and non-Beijing residents. It was discovered that of the 30 defendants who were Beijing residents, 27 received suspended sentences, whereas only five of the 30 non-Beijing residents received suspended sentences. "Generally, we don't give suspended sentences to non-resident defendants," confirmed a judge surnamed Chen who has many years' experience handling criminal cases. "Usually we just sentence them to time served." He blamed this situation on defects in the current system that enable most non-resident offenders serving suspended sentences to evade supervision.

     The cases looked at by this reporter all involved minor crimes of assault, theft, or creating a serious disturbance, and all involved first-time offenders. Comparing a number of assault cases, factors such as the circumstances of the defendants' crimes, the consequences, and the attitude towards acknowledging guilt were all very similar. But all of the Beijing residents were sentenced to suspended sentences while none of the non-residents had their sentences suspended. Beijing defendants charged with theft received suspended sentences, even though the amounts stolen were higher than those stolen by non-resident defendants, who did not have their sentences suspended.

     Is place of household registration really a determining factor in imposing a suspended sentence? Yesterday, this reporter interviewed criminal court judges from several courts. "This situation has been around for a while, though it's been particularly evident in the past few years," said Judge Liu. With the rise of crime that crosses regional borders and accelerated urbanization of rural villages, it is more common for people to be separated from their place of household registration, but the relevant laws have not kept pace.

     Judge Liu said that according to the Ministry of Public Security's "Procedural Regulations for the Handling of Criminal Cases by Public Security Organs," which were announced and took effect in May 1998, "during the monitoring period of a suspended sentence, monitoring is to be carried out by the local police station of the offender's place of residence."

     "Where exactly is 'the offender's place of residence'?" he asked. Provisions [concerning this question] differ in the Criminal Procedure Law and the Civil Procedure Law, which has caused confusion in enforcement. In practice, some [courts] send legal documents to the public security organ in the place where the offender [actually] resides, and others send them to the public security organ in the offender's place of household registration. When the offender's place of household registration and actual residence are not the same, it's easy for public security organs to pass the buck, each claiming that they cannot take on the monitoring of the offender serving a suspended sentence because the offender's residence or household registration isn't in their jurisdiction. In these cases, there's not much the court can do. In a few extreme cases, public security organs outside Beijing have even refused to accept the enforcement notices issued by Beijing courts, resulting in situations where [the court has] no one to notify about enforcement or delivery is delayed, leading to gaps in the transfer of supervision [over the offender]. In order to avoid these supervision "vacuums," Judge Liu therefore generally sentences non-residents to non-suspended sentences.

     Judge Chen, who has many years of criminal trial experience, told this reporter of his own difficulties. "If a defendant re-offends after being sentenced to a suspended sentence, the judge personally bears responsibility. This is part of the appraisal mechanism." Thus, in order to avoid having their decisions to impose suspended sentences questioned because offenders serving suspended sentences carried out socially harmful acts after evading supervision or falling through the cracks, many judges simply do not dare give suspended sentences to non-residents, giving short incarcerations as a way of "sentencing to time served." This is better in terms of enforcement and does not necessarily increase judges' workloads, but it is also a major reason why non-residents rarely receive suspended sentences.

     Several courts in Beijing reportedly have been actively thinking of ways to allow more non-resident defendants to enjoy suspended sentences. For example, the Miyun [County People's] Court has begun personally delivering offenders sentenced to suspended sentences to their original place of household registration in order to prevent them from falling through the cracks because of lax supervision. Professor Zhang Sihan of the National Judge's College recommends that courts and [public security] organs responsible for enforcing suspended sentences should act soon to establish effective and routine mechanisms to transfer supervision of suspended-sentence offenders. At the same time, the system of household registration should be reformed soon in order to keep up with the times.

Tuesday, March 2, 2010

Editorial Calls for Assertion of Civil Rights in Face of Chinese Police Torture

China’s police are again facing criticism after the latest in a string of embarrassing detainee deaths. Three top police officers in Lushan County, Henan, lost their jobs and four more officers face criminal prosecution following the death of Wang Yahui, a suspected thief who died suddenly in the county detention center on February 21, three days after being taken into custody.

A police official initially told a local television station that Wang had died after drinking some hot water during his interrogation, a claim immediately subjected to derision online. Wang’s family members demanded an autopsy after finding injuries to his chest, arms, head, and genitals, injuries that ultimately forcing police to accept responsibility for his death.

In April 2009, China’s State Council Information Office and Ministry of Foreign Affairs jointly released the “National Human Rights Action Plan (2009–2010),” which it promoted as a document guiding all government departments’ human rights work during the two-year period. In a section on guaranteeing the rights of the person, the plan makes clear that torture and illegal detention are prohibited under Chinese law and that violators are subject to criminal prosecution. Unlike elsewhere in the plan, no new concrete measures were introduced to address abuses in the criminal justice system, giving the impression that existing legislation and enforcement efforts are adequate to do the job.

Yet, during the first quarter of 2009 alone, there were a number of widely discussed unnatural deaths of individuals held in Chinese detention facilities. The death of 24-year-old Li Qiaoming in Jinning, Yunnan, was initially attributed to a deadly game of jailhouse “hide-and-seek,” but a later investigation eventually led officials to acknowledge that Li had been beaten to death by other inmates. In Shaanxi, 19-year-old Xu Gengrong died under mysterious circumstances after seven days of detention, and officials in Jiujiang, Jiangxi, blamed the death of 50-year-old Li Wenyan on a “nightmare.”

Anecdotal evidence suggests these incidents are not aberrations in an otherwise stellar record of fighting torture, as the Chinese government has attempted to argue over the years. Instead, they appear to exemplify commonplace abuse that has been identified for years without substantive efforts being taken to address them. The response to these incidents by the Ministry of Public Security, which runs China’s system of detention centers, was to announce a three-month campaign to “boost professional ethics, law awareness, and respect for human rights” at prisons and detention centers. However, this effort to rectify serious deficiencies through an “in-house” campaign of education shows a remarkable lack of innovation and an excessive reliance on measures that have been tried before without yielding tangible results.

“Brave” efforts are necessary to eliminate torture, says an editorial (translated by Dui Hua below) published Tuesday in Southern Metropolis Daily, a Guangzhou-based newspaper known for its relatively outspoken and liberal positions. In the newspaper’s view, blame lies within the entire culture of interactions between legal authorities and ordinary citizens. Both police and the public have been conditioned to believe that citizens should be docile when confronted by police power, a situation that can naturally lead to a debasement of civil rights. The editorial warns that criminal sanctions against the few law enforcement agents who get caught torturing detainees will not ultimately change this mentality. What is needed instead is for citizens themselves to assert their own civil rights and, in doing so, demand that law enforcement institutions respect those rights as a matter of principle.

This call for citizen “bravery” in defense of civil rights is itself an act of great daring, as its use of the potentially controversial phrase “rights protection” (weiquan) leaves open the possibility for Chinese citizens to assert their rights in the face of public authority in other contexts. More “demand from below” may in fact be what is needed in order to realize the many rights and protections promised by China’s constitution, but it remains to be seen whether more will be done “from the top” to make such assertions of civil rights less risky.


Eliminating Torture Awaits Citizens’ Bravery in Protecting Rights
Editorial, Southern Metropolis Daily, March 2, 2010

    Torture by police in Lushan County, Henan, led to the death of suspect Wang Yahui. This recent admission by the provincial public security department shattered the earlier ridiculous cover-up. The chief of the Lushan County Public Security Bureau has been ordered to resign, and the responsible deputy bureau chief and the head of the criminal investigations unit were sacked, both facing additional disciplinary measures pending investigation of responsibility. The Pingdingshan Public Security Bureau’s deputy chief in charge of criminal investigations and the officer responsible for detention center management are also facing disciplinary measures. Four police officers involved were sent to the procuratorate on suspicion of torture. Earlier, when the deceased’s family members publicly reported to the media that they discovered serious injuries all over his body, the local public security bureau claimed that Wang had “died after drinking hot water” during interrogation.

    Wang Yahui is not the first victim to have had his life taken away by torture, and he probably will not be the last. However, it seems as if cases like this, in which police arbitrarily snuff out human lives in confined spaces and then give increasingly ridiculous explanations, have been occurring with some frequency. There is a barbarism and darkness about these cases, reflected both in the boundlessness of the methods used to extract confessions and the utter stupidity of the mendacity.

    Analysts mostly view the origins of torture from the perspective of law enforcement agencies, seeing its cause in the obsession for confessions or pointing to the lack of effective supervision over judicial powers, including the police, that makes it impossible to check these kinds of “work-related crimes.” These views are not mistaken, as even the silent corpses of these Wang Yahuis can confirm. The mechanisms leading to torture are so simple as to be scary, but the problem is not simply with the agents or institutions of law enforcement; the problem is also that citizens, when faced with police and other legal authority, usually find themselves in a position of [having] inferior rights.

    Everyone knows that even criminal suspects enjoy fundamental human rights and are entitled to lawful treatment. But terrible acts of torture make clear that some police use seemingly lawful methods to carry out great acts of illegal violations. Citizens’ inferior rights appear again and again in their interactions with police. In some ways, though these Wang Yahuis appear to have died because of violent extraction of confessions, in fact they died because of extreme cases of inferior rights in which the protective barrier of rights had been thoroughly destroyed.

    The law categorizes torture as a work-related crime. In rendering a verdict, it is of course necessary to make clear distinctions [between crimes], but in terms of torture cases, in which the right to life is crudely stripped away, it is not because law enforcement agents do not appropriately use the “authority associated with their work duties” but that “work duties” are just an excuse. Actually, in a situation of inferior rights, law enforcement officers engaging in torture do not merely exceed the authority of their positions; they also unleash human evil capable of killing others. This kind of evil is not necessarily something the criminal law can stop, as it is capable of evolving into a dark force that can devour humans.

    It is not only [a problem] in detention centers and interrogation rooms. Actually, in other situations where citizens and police interact, the expected relationship between the two is often out of balance. One-sided emphasis on submission of rights to authority, where police can use coercive powers at will, implies that they can overwhelm civil rights. When these kinds of police powers are repeatedly used in the course of dealings with citizens, it naturally strengthens the idea that police must tame the public. This demonstrates that the situation of inferior rights that exists in torture is not random. There is, in fact, a source for this distortion.

    Upgrading internal supervision of the law enforcement organs is a necessary, but not sufficient, part of eliminating torture. Even more important is implementing the rights of lawyers to fully participate [in the legal process] and carry out defense without obstruction as well as civil rights, such as prohibition [of prosecution] based solely on confession and the right to remain silent. Before and after the deaths of these Wang Yahuis, the legal system has been cleansed repeatedly, but citizens’ assertions of their rights still face restrictions. In this day and age of extensive contacts between police and citizens, we should reverse this situation of inferior civil rights as soon as possible and, thereby, end the illegal use of violence by police.

    Wang Yahui’s death by torture has led to public denunciations of rogue police, condemnations that contain both righteous anger over another’s tragedy and, implicitly, worries about the unsettled condition of one’s own rights. Fear is of no use; the rational thing to do is for each person to recognize the scope of his or her rights and, in dealings with the legal system (including the police), remain firm in protecting those rights and bravely create a situation in which the coercive institutions revere the rights of citizens. This is a viable path, and the inferior state of [civil] rights is alerting us to make more attempts.