Thursday, February 24, 2011

Chinese Courts Experiment with Expunging Criminal Records for Juvenile Offenders

Juvenile tribunal, Qingdao Intermediate People's Court
A criminal record can carry with it a lifelong stigma—no matter how minor the offense or at what age it was committed. For this reason, the criminal records of juveniles are routinely sealed in many countries, including the United States. In two recent juvenile justice exchanges with the Supreme People’s Court organized by Dui Hua, experts discussed the prospect of similar measures in China. Earlier this month the Beijing News published two articles reporting that Mentougou District, located in western Beijing, has launched a pilot program to selectively expunge criminal records of juveniles who have committed misdemeanors.

According to criteria adopted in Mentougou in October 2010, a record can be considered for expungement if, among several other factors, a juvenile has served a sentence of less than five years, has shown remorse, and has not re-offended. Applicants must stay out of legal trouble during a period of probation and assessment of their cases, when close review of the youth’s record culminates in a decision by a panel of judges.

Last fall, the Mentougou District People’s Court notified 153 offenders it had tried over the previous decade that they met the basic qualifications to have their records sealed.  More than 40 submitted applications to the court, and, from those, 13 were selected for evaluation. In the initial batch of decisions, the court approved the sealing of records in three cases, rejected one application, and suspended a decision on a fifth case pending additional evaluation.

Two summarized cases show how the court weighed post-criminal behavior in its decisions. One youth whose record was expunged had stolen a cell phone from a classmate during a robbery committed out of “boredom.” The court imposed a suspended sentence, and during the probation period he displayed good behavior and now expects to graduate from a vocational school. In another case, the court rejected the application of an offender who had “refused without reason” to take part in public-service work and resisted other probation measures imposed by a community corrections agency.

Conflicting legislation creates many obstacles for consistent and effective application of protections like expunging records. New provisions and practices often conflict with long-standing laws, which tend not to specify treatment of minors. The Juvenile Protection Law prohibits discrimination in work and education; however,other laws such as the Civil Servant Law limit employment opportunities in a number of professions, as well as the military, for those with criminal records, and the Criminal Law stipulates that records must be accurately disclosed in some situations.

In an interview, Judge Hu Yu, chief judge of juvenile cases in the Mentougou Court, explains the philosophy behind expunging records and practical challenges to making the process work. He states that the vast majority of juveniles who come before the court end up with relatively short sentences that can still end up affecting their prospects for education, employment, and even marriage. Judge Hu observes that the procedure for expunging records needs to be carefully explained when the court is questioned about a youth’s background, and that even expunged records will remain in a national system that authorities throughout China can access. This compels his court to simply recommend that local public security departments—and potential schools and employers—exercise good judgment if they encounter people with a juvenile crime background.

It is clear from the relatively few cases approved by the court that the court is exercising initial caution during the early phase of its pilot program. One challenge yet unsolved is how to deal with the “blank periods” that will appear on some individuals’ records when their time spent behind bars is removed from their records. Nevertheless, the courts in Mentougou District and other locations should be commended for taking positive, if gradual, steps to treat juvenile offenders according to their unique circumstances. But these strides can proceed best only if relevant laws are reformed in the interest of better protecting juveniles. When the benefits of such measures are seen, they should in turn help achieve a broader goal already set out for handling China’s youngest offenders: to combine leniency with punishment.