Monday, September 26, 2011

Sealing Juvenile Records: From Pilot to Practice?

After years of study, China is starting to take important steps to reform its juvenile criminal justice system. Balancing leniency and severity as a means to prevent recidivism, Chinese law enforcement officials have been exploring measures like delayed prosecution, non-custodial punishment, and community corrections.

Earlier this year, China’s Criminal Law was amended to exempt individuals from reporting light, juvenile criminal records when seeking employment or military enlistment. Now it is no longer necessary to disclose sentences of five years’ imprisonment or less (including suspended sentences and other non-custodial penalties) for crimes committed before the age of 18. Meanwhile, a draft revision of the Criminal Procedure Law (CPL) currently under consideration would require that judicial organs and other government bureaus strictly limit the release of such records.

Sealing Juvenile Records.
Image Credit: Southern Daily
The sealing of juvenile criminal records can have a significant impact on an individual’s future, as even relatively light criminal offenses can limit opportunities for education and employment. According to a study by the Tianning District People’s Court in Changzhou, Jiangsu Province, 16 of 98 juvenile offenders given non-custodial sentences over a five-year period were unable to obtain employment because of their prior criminal records. Proposed CPL revisions come as several locations throughout the country are still experimenting with new ways of dealing with the juvenile records.

Typical are regulations that took effect in Changzhou on August 1. These regulations allow juvenile offenders, their guardians, or their relatives to petition courts to seal records of first offenses punished by no more than five years’ imprisonment. Before sealing, courts must scrutinize an individual’s post-conviction behavior and sincerity of remorse; after sealing, records can be unsealed upon further offense.

The new draft CPL does not appear to require courts to take offenders’ behavior or attitude into consideration when sealing records nor to provide for unsealing records after an additional offense. The variations between proposal and pilot demonstrate the importance of implementation, which will depend on concrete measures established by the Supreme People’s Court, Supreme People’s Procuratorate, and Ministry of Public Security.

Once drafted, these measures may also clarify whether individuals who commit certain offenses will be excluded. Under current regulations in Changzhou and other locales, individuals convicted of endangering state security, terrorism, or organized criminal activity are not eligible to have their records sealed. Such limitation seems to go against the spirit of the law, given that neither the amended Criminal Law nor the proposed CPL provisions make any mention of offense categories in connection with juvenile criminal records.

Several legislators and legal practitioners attending a recent conference—hosted by the All-China Lawyers Association Professional Committee for the Protection of Juveniles and the Beijing Juvenile Law Research Association—on the proposed provisions expressed concern that sealing criminal records was insufficient. Instead, they advocated expunging records fully after a specified period of time.

Despite having one of the worst juvenile crime rates in the country, Guangdong Province recently announced a plan to test expunging as a means of expanding efforts to help juvenile offenders re-enter society. From 2004 to 2009, Guangdong courts heard the criminal cases of more than 43,000 juveniles, accounting for 10 percent of all criminal trials in the province. Since 2009, Guangdong's procuratorates have prosecuted more than 23,000 juvenile offenders, 70 to 80 percent of whom are the children of migrant workers drawn to the Pearl River Delta's export manufacturing center. 

Guangdong intends to expunge the criminal records of those sentenced to non-custodial punishment and to limit the release of any record of arrest or criminal investigation that did not lead to prosecution. (On experiments already underway in Beijing, please see this earlier report.)

Inevitably, given the overall concern with social stability in China, some have raised concerns that measures like delayed prosecution and record sealing will send the wrong message and limit the deterrent effect of criminal punishment. Commenting on the new measures in Guangdong, a recent editorial in Southern Daily, the Guangdong Province Communist Party Committee's official paper, urged caution:

未成年人心理发育不成熟,不能因其一次失足就否定其终生的可塑性,否则是对他们的极端不公平;但同样,对未成年人犯罪不能一味强调“宽”,不适当的宽就是放纵,反而变相鼓励未成年人再次犯罪。[Juveniles are psychologically immature, and it would be extremely unfair if we blocked their ability to mold themselves because of a single slip-up. But at the same time, we shouldn’t simply emphasize “lenience” in handling juvenile crime, because improper lenience is equivalent to indulgence that could, on the contrary, implicitly encourage juveniles to re-offend.]

Such concern reflects anxiety about how legislators should balance the rights of individuals and the rights of society. With juvenile justice reforms still undergoing experimentation in a relatively small number of locations, the prospect of extending lenience to juvenile offenders appears risky to some. National People’s Congress Deputy Yao Xiaoying also voiced concern during the initial reading of the revised CPL draft in August:

如果对五年以下的免予起诉,也不向社会公布,虽然对一个孩子今后走上社会是一个重要的保护,但在这个保护当中,我们对另外一部分人的生命、财产、成长的安全如何保护?这个社会承载的将是放任他继续犯错误的成本,这个成本巨大。[If juvenile offenders] are exempt from prosecution for [punishments of five years or less] and this cannot be publicly reported, though it would be an important protection for a child’s future entry into society, how can we concurrently protect the safety of others’ lives, property, and security? Society must bear the burden of allowing [an individual] to continue to make mistakes. This is a huge burden.]

If the proposed additions to the CPL are passed, it would represent an important step in the evolution of juvenile justice reform in China. It remains to be seen, however, whether the practical impact of such legislation will be blunted by restrictive rules for implementation and whether current willingness to pursue even more progressive practices like expunging might recede amongst waves of concern over moving too fast, too soon.