Monday, January 30, 2012

Do Work-Study Schools Reduce Juvenile Crime?

Kang Shuhua (康树华), a professor at
Peking University Law School and
expert on juvenile crime in China.
Photo credit:
Peking University Law School

Juvenile crime may be on the rise in China, but the country’s juvenile recidivism rate is half that of the US, according to a Legal Evening News interview with Kang Shuhua (康树华), a professor at Peking University Law School and expert on juvenile crime. In the interview (translated below), Kang discusses the “success” of juvenile justice reform in China, emphasizing the fruits of correctional work-study schools, the importance of preventing crime, and the need for separate juvenile laws embodying the principle of “education first, punishment second.”

In particular, Kang believes that correctional work-study schools (工读学校) have contributed to China’s relatively low juvenile recidivism rate. In 2008, a Supreme People’s Court judge likened the schools to US “boot camps,” citing management by retired officers of the People’s Liberation Army and strict routines of marching and legal education. In 2011, China had 77 correctional work-study schools enrolling 10,735 students, 18 percent of whom were young women, according to Ministry of Education statistics. In 2009, these schools enrolled 9,213 students, compared with 20,662 minors (between the ages of 14 and 18) incarcerated in juvenile reformatories nationwide.

Dating back to the 1950s, correctional work-study schools are alternative schools for middle and high school students who commit minor criminal offenses that do not merit criminal or administrative punishment or whose behavior puts them at odds with the conventional school environment. Since 1999, enrollment in correctional work-study schools has not been compulsory but determined by a student’s parent or guardian, the school, and the public security bureau. In this way the concept seems in line with the principle of “education first, punishment second”; however, militaristic management and the reluctance of many parents to enroll their children may be indicative of the inverse. The number of correctional work-study schools has dropped sharply from a peak of at least 150 schools and fallen by 21 percent since 1985.

Regardless of the decline, Kang Shuhua and Xiong Wei, a lecturer at Zhongnan University of Economics and Law, believe that correctional work-study schools are necessary to prevent juvenile crime and believe that a renaissance of these institutions is possible with a new name and more robust coursework.

The reform function of youth courts and other correctional institutions is evident, founder of criminilogical studies Kang Shuhua notes China’s—

Juvenile Recidivism Rate Lower than in the US
Legal Evening News
December 11, 2011

Youth courts and other juvenile correctional institutions with Chinese characteristics have led China’s juvenile recidivism rate to be half that of the United States.

Faced with the current decline of the special crime prevention system known as work-study schools, the father of criminology [in China] and juvenile crime expert Kang Shuhua recommends that the words “work-study” be eliminated in order to reduce the aversion and negative response felt by children and parents.

Kang Shuhua notes that when conditions are ripe, [China] should establish a criminal law and criminal procedure law explicitly for juveniles to truly realize the principle of “education first, punishment second” for juvenile offenders.

Talking about History
In the first three years of the 1980s, teen crime accounted for 70 to 80 percent of criminal cases.

Legal Evening News (LEN): When did criminological research begin in China? The film In the Heat of the Sun portrays youth life during the Cultural Revolution and shows children daring to drive a truck to engage in a brawl. Did the study of teen crime in China arise from the chaos of those years?

Kang Shuhua (KS): Criminological research in the People’s Republic of China (PRC) did actually begin with the study of teen crime. Before the Cultural Revolution, teen crime was not a serious social problem in China. In 1956, teen crime only accounted for 20 to 25 percent of all criminal cases. Afterwards there was a bit of an increase, and it accounted for 30 to 35 percent of all criminal cases.

With the prevalence of extreme “leftism” during the “ten years of chaos,” teens were pushed to the fore as “revolutionary young generals.” Many clueless teens committed crimes with impunity under the slogan of “it is right to rebel,” and teen criminal cases accounted for 50 to 60 percent of all criminal cases, even reaching 70 to 80 percent in some places.

After the downfall of the “Gang of Four,” it was difficult for the “internal damage” done to people’s hearts to recover in such a short period, and there were a whole host of accumulated problems in society and people’s lives. Add to that the recently implemented policies of opening up to the world and spurring economic activity, which made the social environment of that time the most complex of any period since the establishment of the PRC. It was inevitable that these major turning points would bring some new circumstances and new problems, and the problem of teen delinquency and crime was revealed in a very concentrated way.

In the first three years of the 1980s, the rate of teen crime in relation to all criminal cases maintained around 70 to 80 percent. Such a major teen-crime problem attracted the serious attention of the party, the government, and all segments [of society]. In 1985, the Central Committee clearly raised the issue of “urgently drafting laws to protect adolescents.” From that point, subjects like teen criminology, teen legal study, and [adolescent] criminal psychology were born.

Talking about the Present
Work-study schools should eliminate “work-study” and strengthen vocational and technical training.

LEN: As theory has developed, what changes has it brought to practice?

KS: At the same time that China has strengthened its research into teen crime, it has revived and improved specialized youth justice facilities such as juvenile correctional facilities and work-study schools, established youth courts, and drafted a Juvenile Protection Law and Juvenile Crime Prevention Law.

LEN: One always heard about work-study schools in the 1980s, but we’ve heard much less about them over the past decade or so. What’s the reason for this?

KS: I know of two or three work-study schools in Beijing. Work-study schools are an important part of preventing teen crime. They evince Chinese characteristics and take special responsibility for accepting children who engage in minor delinquency that has not yet reached the level of crime.

LEN: Then why is it that we almost never hear this phrase anymore?

KS: These days work-study schools are in decline. Children [there] are far fewer than before, and [the schools] are incompatible with China’s current situation. Work-study schools initially played a very important role in preventing crime. But gradually, the public came to feel that once a child had been to a work-study school, he or she was labeled as a bad child. One of the main reasons for the decline is that many parents are unwilling to send their children to work-study schools because they are damaging to the reputation.

LEN: Since work-study schools are beneficial to preventing teen crime, how do you think they should be reformed?

KS: Personally, I feel that we can change the name, get rid of the words “work-study,” and leave the nature of the school alone. This way, perhaps many parents will be able to accept them. As far as I know, some work-study schools in several different locations have already changed names. Modern work-study schools all offer vocational school diplomas, but I think that the schools should not only offer diplomas but should also truly improve their vocational and technical training.

Juvenile Recidivism Rate Half of that of US

LEN: Just now, you mentioned youth courts. In daily reporting I’ve discovered that today’s youth courts commonly give light punishments to youth offenders. There are those in the public who express doubts, saying that uniform light punishments mean [offenders] won’t learn serious lessons and will have “short memories.” Once while covering a case of a youth who committed murder after having been given a suspended sentence, a reporter raised these doubts with a youth court judge, and the judge remained silent.

KS: I think that ultimately juveniles are in the process of growing up and their cognitive abilities are relatively low. The vast majority of children who undergo education and reform will correct their ways. As for those who don’t change after repeated education, they should not be punished leniently.

LEN: Trials in youth courts all have a court education component. As I understand it, many youths burst into tears when receiving correctional education. But there are others who simply ignore it or even laugh indifferently.

KS: Usually the judges are much older than these children, and there may be a generation gap in thinking caused by the difference in age. Before carrying out education, these judges really ought to make more of an effort to understand the true thinking of these youths. But education and reform really is very important. Many perpetrators in major [criminal] cases began committing crimes as youth.

Most of those born in the 1980s and 1990s do not have brothers or sisters and are commonly very selfish. [Those with] this type of personality can relatively easily pursue the path of crime. On the other hand, (judges) also ought to strengthen the education of [these young people’s] parents.

LEN: Do you think that China has been successful in the reform of juvenile offenders? What is the current recidivism rate among juveniles?

KS: I think it has been successful. Juvenile crime truly is increasing in China, but the rate of juvenile recidivism is just over 20 percent, half of the 40 percent rate in the United States. This success owes to China’s special teen crime prevention work, the sort of institutions I previously described.

Putting “Strike Hard” Above Prevention Means Failure of Criminal-Law Effectiveness

LEN: According to reports, between January and November 2010 more than 5.34 million criminal cases were filed by public security organs nationwide, an increase of 7.5 percent year-on-year. Criminal cases are on the rise, and, looking at individual cases, a number of teenagers have committed many serious, awful crimes in recent years. Given that law enforcement agencies have made so much effort, why have these problems emerged?

KS: This is actually a consequence of emphasizing punishment over prevention. The facts show that over more than 30 years, the pursuit of “heavy, fast, and severe” policies in the criminal justice process has led to a clear failure in the effectiveness of the criminal law.

Criminology aside, current theories about controlling crime only focus on “punishment,” with little or no [attention to] “prevention.” Current criminal legislation and its study all look at what do after a crime has been committed, and there is little research on patterns of change, causes, and prevention of the phenomenon of crime before it has been committed.

One must say that this is an extremely large deficiency. Punishment of crime is a negative way of fixing damage that has already occurred. And it’s a bit like harvesting chives: as soon as you cut one, another sprouts up.

The core legal practice of criminology is crime prevention. Yet in recent years there has been a decline in the development of the field of criminology. Nationally, some universities have already changed criminology from a required course into an elective, or even eliminated it.

At its most fundamental, this is an ideological problem. Believing that rampant crime must be met with severe penalties, too much emphasis is placed on the role of the criminal law and the study of the causes of crime is ignored and little attention is paid to crime-prevention work.

Talking about the Future
Provisions of the 8th Amendment [to the Criminal Law] promote the improvement of the juvenile justice system.

LEN: The 8th Criminal Law Amendments that took effect on May 1, 2011, contain three provisions concerning juvenile crime. First, criminal offenses committed before the age of 18 will not count in determining repeat offenses. Second, offenders below the age of 18 should be given suspended sentences as long as they meet the relevant criteria. Third, those who were sentenced to fixed-term sentences or less before reaching the age of 18 are exempt from reporting their criminal history. How do you view these new provisions?

KS: These provisions reflect the policy of “education, reform, and rehabilitation” and the principle of “education first, punishment second” where juvenile offenders are concerned. This is a big highlight of the 8th Criminal Law Amendments. It is a legislative manifestation of the criminal justice policy of combining lenience and severity, and the result of many years of continued calls by insightful people from all segments of society.

It breaks through the oversimplified thinking about juvenile crime that has existed in the Criminal Law for many years—the age of criminal responsibility, rules for the age of criminal responsibility were only discussed in the four paragraphs of Article 17 of the Criminal Law. It is a milepost that will only further promote improvement in the juvenile justice system.

When Time is Ripe, Criminal and Other Laws Should Be Enacted for Juveniles

LEN: In some western countries, there is an independent juvenile legal system established outside of the criminal legal code. Will this also be China’s development trend?

KS: Yes, this should be the trend.

For the conviction and sentencing of juvenile offenders, both the 1979 Criminal Law and the current Criminal Law only have a single article, and law-enforcement personnel have no choice but to make use of the law for adults in handling criminal cases involving juveniles. This is regretful and something about which many people have been urgently campaigning.

LEN: How should a juvenile justice system be established?

KS: When the conditions are ripe, a juvenile criminal law and juvenile criminal procedure law should be enacted to aggregate today’s individual laws and regulations.

In recent years, the Supreme People’s Court has engaged in many valuable experiments in respect to substantive and procedural aspects of the adjudication of juvenile cases. This is something that should be acknowledged.

Unfortunately, though, the aforementioned regulations still lie outside of legal statutes and haven’t brought the principle of “education first, punishment second” and the policy of “education, reform, and rehabilitation” clearly within the scope of the Criminal Law as far as the adjudication of juvenile criminal cases is concerned.

Kang Shuhua’s Views
  • Work-study schools have played a very important role in preventing crime. But work-study schools should further reform and develop. They should get rid of the words “work-study” and conscientiously strengthen vocational and technical training.
  • Over more than 30 years, the pursuit of “heavy, fast, and severe” policies in the criminal justice process has led to a clear failure in the effectiveness of the criminal law. Punishment of crime is a negative way of fixing damage that has already occurred. The core legal practice of criminology is crime prevention.
  • When conditions are ripe, [China] should enact a juvenile criminal law and juvenile criminal procedure law to truly realize the principle of “education first, punishment second” and the policy of “education, reform, and rehabilitation” in trying juvenile criminal cases.

Reported by Fu Zhong

Design by Li Ming

Personal Profile

Kang Shuhua, the father of the field of criminology [in China], is a professor in the Peking University Law School, Honorary Chairman of the China Criminological Research Association, member of the Working Group on Youth Issues of the National People’s Congress Internal and Judicial Affairs Committee, and youth legislation consultant for the Central Committee of the Communist Youth League.

Tuesday, January 10, 2012

Remaining Vigilant about Criminal Procedure Law Reform

Late last month, proposed revisions to China’s Criminal Procedure Law (CPL) got a second review by the National People’s Congress Standing Committee. Days later, it was announced that the CPL revision was being submitted to the National People’s Congress, which is widely expected to pass the legislation during its annual session in early March.

Enforced Disappearance

In contrast to the first draft, which was put forward for public comment at the end of August, the present draft of the CPL has not been published in full. Instead several revisions have been reported by the Chinese press. Among them is a revision purported to address one of the most widely criticized proposals in the earlier draft, that enabling investigators to hold suspects in certain types of cases without notifying their family of their whereabouts or the charges against them.

As it turns out, headlines hailing the “elimination of ‘secret arrest’” (取消“秘密拘捕”) were misleading, pertaining only to people placed under formal arrest (逮捕). Drafters deleted a clause that would have exempted investigators from notifying the relatives of people who had been placed under formal arrest “in cases involving serious crimes such as endangering state security or terrorist activity” when it was deemed that doing so might have “the potential to impede the investigation.” Under the terms of the current draft, then, investigators would be required to notify the relatives of all suspects within 24 hours of a formal arrest, “except when notification is impossible.”

What the headlines obscured (but later revealed in a handful of reports) was that similar exceptions for state security or terrorism suspects had not been eliminated from provisions covering other “coercive measures” such as detention (拘留) or “residential surveillance” (监视居住). Since authorities can use “residential surveillance” to hold a suspect for up to six months in any location they choose, giving authorities the legal basis not to notify the suspect’s family has been strongly condemned as secret detention or enforced disappearance by critics both inside and outside China—including United Nations human rights experts and Dui Hua’s Executive Director John Kamm in his Congressional testimony (PDF).

Public Attention

Compared to the flood of public comment and criticism that followed the publication of the earlier draft, there has been relatively little discussion of the current CPL proposal. In part, this is likely a function of the decision not to make the full draft available for public scrutiny. There may also be a certain amount of resignation—a sense that the public has had its say, a few concessions have been made, and passage is all but a foregone conclusion.

However, the debate may not be completely over. A recent editorial in the Guangzhou newspaper Southern Metropolis Daily urged members of the public to keep up the pressure, warning that reform of the CPL was “a serious matter about which the slightest laxity cannot be tolerated.” In an opinion piece (translated below) published in another Guangzhou daily, the Yangcheng Evening News, regular legal commentator Yang Tao urges China’s legislators to take full consideration of public concerns about the legislation and address remaining provisions that fail to meet the standards of fairness and justice.

The discrepancy between the headlines and the latest draft is notable. The persistence of measures that would legitimate enforced disappearance, the failure to protect a suspect’s right to remain silent, and the lack of strong checks on investigators’ ability to employ covert and technical surveillance measures have, in fact, furthered concerns that CPL revision strengthens law-enforcement powers at the expense of individual rights.

It remains to be seen whether China’s legislators will use their last review of the CPL draft to address these concerns. But only by doing so, Yang warns, can China pass a CPL that will “withstand the scrutiny of history.”

Respect Public Opinion to Eliminate Regrets over Criminal Procedure Law
Yang Tao, Yangcheng Evening News
December 27, 2011

On December 26, the draft revision to the Criminal Procedure Law (CPL) was again submitted to the National People’s Congress Standing Committee for review. This was the second reading for this draft legislation, and, compared to the draft in the first reading, there are many highlights in the second draft that deserve public attention.

The CPL is a basic law that regulates the activities of public security, procuratorates, courts, lawyers, and citizens to participate in criminal litigation. Criminal litigation frequently involves depriving citizens of their life, liberty, or property, and a law of criminal procedure must put public authority inside a cage, protect citizens’ legal rights, and enable public authority to prosecute crime in accordance with the law. In this respect, the CPL is a Magna Carta for defendants, as well as for each and every citizen. Whether a CPL is well-drafted is directly related to whether citizens’ rights receive fair treatment. For this reason, revision of the CPL must take ample consideration of public opinion in order to correct any injustice contained in the law.

The current CPL was enacted in 1979 and amended in 1996. The reason why revision of this law has been placed on the agenda after 15 years is because it no longer meets the needs of a new era in which people make ever-increasing demands for the protection of human rights. Whether it’s coercion of confessions through torture, the difficulties lawyers face in meeting [with detained clients], or secret detentions, the appearance of all of these problems is related to major flaws in this law.

Additional CPL reform arises from precisely this background and faces up squarely to public response to the situation. We were glad to see so many highlights in the first draft, such as the provision that suspects must not be compelled to self-incriminate, which is a major step towards reducing and eliminating coercion of confessions through torture. The draft also sets out standards for covert and technical investigations, formally bringing measures within the confines of the law that in practice have long been used outside the law. The draft proposes that close relatives [of a defendant] have the option of not testifying in court, taking a step toward the international practice of a “relative’s privilege against testifying” and preserving family ethics. And the draft also proposes that lawyers be allowed to meet suspects freely and without interference, helping to eliminate the conflict between the CPL and the Lawyers Law and giving effective protection to lawyers’ legitimate professional rights.

But the first draft of the legislation also left behind many regrets, such as the problem of lawyers being detained by investigative bodies without cause or the problem of secret detention. Thus, after the first draft was made public, there was still a strong reaction from all segments of society, with one voice after another demanding further revision. The second draft, after [lawmakers] listened to public opinion and the arguments of experts and scholars, [included] several major changes on the basis of the first draft. For example, the second draft stipulates that after criminal suspects are [formally] arrested, their relatives must be notified within 24 hours in all cases except when such notification is impossible, and that the investigation of defense lawyers suspected of crimes should be handled by an investigative body other than the body handling the cases in which the defense lawyer is representing a client. These new provisions have especially great significance for the protection of human rights.

As a matter of principle, however, revision of the CPL entails competition between protecting human rights and fighting crime. On a practical level, this involves competitions over power within the public authorities of public security, procuratorates, and courts; between public authority and lawyers and citizens; and even between different levels of society. Therefore, each time the law is amended, there will always be debate and [expressions of] regret. Taking the second draft [of the CPL] as an example, even though after a suspect is [formally] arrested “relatives must be notified within 24 hours in all cases except when such notification is impossible,” [the provisions for criminal] detention still allow for no notification “when it would impede the investigation.” Even though covert and technical investigations have been brought within the law, investigative bodies still approve their own investigations without any judicial review. Prohibiting compulsion of suspects to self-incrimination has been included, but [the clause that] “suspects shall truthfully answer investigators’ questions” has not been deleted, leaving a “tail” for torture. Legislators should thus take a neutral position and listen to mainstream public opinion to the greatest extent possible; weigh the positions taken by each side; and, in the course of revising the draft, continue to revise unjust provisions so that this legislation may, after it has been amended, withstand the scrutiny of history.