Monday, May 21, 2012

Not Adding Up: Criminal Reconciliation in Juvenile Justice

Recent amendments to China’s Criminal Procedure Law involve special procedures for handling cases involving juvenile defendants and resolving cases through criminal reconciliation. Although the law does not explicitly link the two, criminal reconciliation has been a key feature in the development of China’s juvenile justice system under the principle of “education first, punishment second.”

Dui Hua welcomes criminal reconciliation as a means to restorative justice and reduced juvenile incarceration, but research suggests that the relatively new measure is experiencing some growing pains in China. Jiang Jue (姜珏), a PhD candidate in the School of Law at the Chinese University of Hong Kong, has done extensive research on criminal reconciliation in China and has seen how the process works in many juvenile cases. Her research indicates that current implementation of criminal reconciliation falls short of juvenile justice principles by alienating youth and stifling attempts at education.

Obvious Reasons

Criminal reconciliation is a process of face-to-face mediation between defendants and victims whereby an admission of wrongdoing combined with compensation and/or apology can serve as the basis for either exemption from prosecution or leniency in punishment. Similar practices have featured in the juvenile justice systems in many countries worldwide—California’s San Mateo County prides itself on the success of its juvenile mediation program—and for the last decade, a number of Chinese jurisdictions have been experimenting with criminal reconciliation in juvenile cases.

Proponents of criminal reconciliation believe that it has many important social benefits, particularly in cases involving juvenile defendants. Envisioned as a restorative, as opposed to a retributive, mode of justice, the reconciliation process provides an opportunity for defendants in relatively minor crimes to be confronted directly with the harmful consequences of their actions and take concrete steps to right their wrongs. The process gives victims the opportunity to play a more active role, especially compared to their role in the traditional adjudication process, in fashioning a means to resolve the emotional and material harm they have endured.

The interest in using reconciliation in juvenile criminal cases is largely based on the belief that it offers a better way to educate juvenile defendants, gives them an opportunity to correct their mistakes without incarceration, and facilitates reintegration into society. Besides being compatible with the juvenile justice system’s guiding principle of “education first, punishment second,” criminal reconciliation also resonates with the broader criminal justice policy of “combining leniency and severity” and the goal of promoting a “harmonious society,” a key policy of the Chinese Communist Party under President Hu Jintao.

Hidden Incentives

According to Jiang’s research, however, there are other reasons to promote criminal reconciliation. One of those reasons is efficiency. Admission of guilt is a precondition for reconciliation, and it is unnecessary for prosecutors to bring forward any other evidence. Jiang believes this may create incentive for prosecutors to push for reconciliation in cases they might not be able to win at trial. It may also promote reconciliation as a shortcut to, as one judge informed Jiang, “educate” a defendant about the benefits of admitting guilt—presumably irrespective of veracity.

Judges and prosecutors are also encouraged to use criminal reconciliation by its addition to internal criteria to assess their performance. These assessments include quotas that are directly tied to promotions or bonuses. While these quotas are presumably meant to boost the profile and appropriate application of the alternative measure, Jiang argues that they create pressure for court officials and prosecutors to meet their targets by whatever means possible, including through repeated persuasion or even more overt pressure to choose the route of reconciliation over ordinary adjudication.

Exclusive Affair

Critics have also noted that the tendency to make compensation the focus of criminal reconciliation has the potential to exclude the poor. This is because those who can’t pay are more likely to face trial and heavier punishments than those who can. In some jurisdictions, juveniles without local residence permits (e.g., the children of migrant workers) are left out of the process entirely because of the alleged difficulties involved in providing “help and education” (帮教), the phase of the process in which law enforcement authorities monitor defendants to ensure they are fulfilling the terms of their agreements. Jiang adds that the emphasis on compensation can also lead to the marginalization of juvenile defendants and victims since financial negotiations are ultimately the domain of parents and officials. Without the direct participation of juveniles, the opportunity for education and understanding are stifled.

To illustrate this point, Jiang recalled what she was told by one of her interview subjects. The young man, a victim in a juvenile criminal case, told her that he had had no interest in participating in the reconciliation process or meeting with the defendant. He said he did so because of pressure from his parents and teachers, who were in turn pressured by prosecutors to accept compensation. The interviewee said he did not speak once throughout the reconciliation process and did not remember hearing the other side’s apology. What he did remember was haggling over compensation—an activity from which he was completely excluded.

Other Obstacles

While criminal reconciliation has its benefits, certain aspects may not be suited to juvenile cases. Chinese authorities tend to view the process as a means of privately resolving criminal cases and as a public tool for education and deterrence. Under Chinese law, trials involving juvenile suspects are supposed to be held behind closed doors and information about juvenile parties shielded from public view. Yet in the interest of amplifying social benefits, some locales have held public criminal reconciliation meetings in schools. A participant in one such meeting told Jiang that the public nature of the process made him feel nervous—as if he were “in a show”—but that pressure from teachers and law-enforcement officials made him feel as if he had no choice but to participate.

Some of the juvenile court judges who spoke to Jiang clearly invest considerable time and energy in the reconciliation process, working closely with a defendant’s family members or teachers to tailor an effective education plan. It is unrealistic, however, to expect such dedication and responsibility from all judges given the uneven development of social services and community corrections. Faced with heavy caseloads, minimal resources, and often inadequate training, some judges treat the “education” phase of criminal reconciliation as a mere formality, blandly admonishing defendants to “study hard” or “listen to their parents.”

Many of these problems—the challenges posed by insufficient resources, the dominance of “hidden rules,” and too much discretion for judicial authorities—are not unique to the emerging juvenile justice system. Instead, they feature prominently in China’s criminal justice system and assert themselves in criminal reconciliation involving adults and juveniles. Until these fundamental problems can be addressed, Jiang Jue’s research suggests that it will be difficult for alternative mechanisms like criminal reconciliation to achieve their intended goals and may, in fact, carry negative side-effects in the process.

Tuesday, May 15, 2012

Yunnan Bombing: Exonerating Land Grabs, Losing Public Trust

Last Thursday morning, dozens of local residents gathered at a government office in southwestern China to sign paperwork entitling them to compensation for land requisitioned by the local government. Dozens more were outside the office, reportedly to raise objections about the standard of compensation.

Similar scenes can be found throughout China, as the logic of economic development transforms farmland into industrial or manufacturing zones, and older urban neighborhoods are torn down to make way for new housing, office buildings, and shopping malls.

But that morning in Qiaojia County, Yunnan, did not proceed according to script. At around 9 a.m., an explosion ripped through the office, killing four and injuring more than a dozen. Early reports identified the explosion as the work of a local woman surnamed Li. After arguing with an official over the amount of compensation, she reportedly detonated explosive material concealed in a basket she was using to carry a baby just over one year old.

(Top) The Site of the bombing as seen from a distance.
Photo credit: Chen Xiayun,

(Left) The scene of the bombing as shot by an unknown Internet user.

Witnesses claimed the woman believed that local officials were reaping huge profits by buying up agricultural land cheaply and then transferring it to developers at much higher prices. On account of these suspicions, local residents had been petitioning for several years to no avail. Such stories are not unique, either, and among Beijing’s petitioners there are many bearing similar tales of victimization by rapacious local officials who collude with greedy developers.

Most of these stories don’t end with acts of violence, but here, too, there are precedents. One year ago, in the city of Fuzhou, Jiangxi, a 52-year-old man named Qian Mingqi allegedly set off three explosions outside local government offices. He had also called for adequate compensation for the demolition of his house.

These rare acts of desperation have a certain resonance with the broader Chinese public. Instead of seeing the bombings as acts of “terrorism”—the label given to similar bombings carried out by ethnic Uyghurs or Tibetans in the past—many Chinese express sympathy for the perpetrators of violence. Such sympathy is likely grounded in the belief that these acts are inevitable in a society with so few effective channels to redress injustice.

The resonance of such narratives and the deep mistrust that many Chinese feel toward government officials, especially at the local level, have led to many questions about the Qiaojia bombing. Local police are now disassociating the blast from land disputes and the discordant woman and blaming a man named Zhao Dengyong.

Zhao, who police say died in the blast, is reportedly shown in surveillance video carrying a backpack around the time of the explosion. Police claim that Zhao carried out the bombing as an act of “revenge against society,” using as evidence his “withdrawn personality” and past “criminal record.” Reporters who have interviewed Zhao’s family and acquaintances, however, have expressed doubt about these characterizations.

Is Zhao Dengyong a scapegoat or did he emerge as a suspect in the course of further police investigation? The lack of trust of local government reporting on the case is palpable. It is also natural, argues commentator Shen Bin in a recent opinion piece (translated below) published in the Shanghai newspaper Oriental Morning Post. Shen argues that when local officials prioritize the control of information and opinion over the supply of clear facts based on compelling evidence, it only creates the conditions for further mistrust and suspicion that the government has something to hide.


Bombing in Zhaotong, Yunnan: Only Releasing the Truth Can Gain Public Trust
Shen Bin, Oriental Morning Post
May 14, 2012

On the morning of May 10, there was an explosion in the Huaqiao Community Services Hall in Baihetan Town, Qiaojia County, Zhaotong, Yunnan. Four people were killed and more than 10 injured.

At first, the media quoted local residents as saying that the explosion was carried out by a local woman who was unsatisfied with the amount of compensation offered for land that had been requisitioned. By the evening of May 11, a Xinhua reporter who viewed video surveillance footage at the Qiaojia County Public Security Bureau confirmed that the perpetrator was Zhao Dengyong, from Qiaojia County’s Baogu’nao Township, that the case had nothing to do with land requisitioning or resettlement and was suspected to be an act of revenge against society. The following morning, the local [government] issued another notice, saying that, according to the police investigation and interviews with relevant people, Zhao not only had a “criminal record” but had a mind to take revenge on society, [characterized by] a withdrawn personality, radical words and actions, and profound pessimism.

The “killer” is already dead, but the crux of the official notice is not specific evidence like what explosives the killer used or how the bombing was carried out, but rather that the deceased had nothing to do with local land-requisition problems. This “shifting of focus” is worth mulling over. There is only one truth, but different answers have emerged that have widely divergent implications. If Zhao truly was taking revenge on society, then this bombing is an individual case of extremism, like the many cases involving the stabbing of schoolchildren that took place in 2010. But if this case was caused by inadequacies in the local government’s handling of compensation for land requisitions and related petitioning by the public—like last year, when Qian Mingqi’s string of bombings in Fuzhou, Jiangxi, were caused by inappropriate resettlement activity by the local government—then relevant local government officials must be held accountable.

It is even more interesting to note that, according to the local government notice, Zhaotong Party Secretary Ye Libin said that besides “going all out to treat the wounded and deal properly with the families of the dead and wounded,” the chief of the Zhaotong Public Security Bureau must also “be responsible for taking full command of dealing with the aftermath and controlling public opinion.”

By “public opinion,” he means, of course, the earlier reports that the incident was a suicide bombing by a woman dissatisfied with compensation for land requisition—reports that put great pressure on the local [government]. But these were not baseless “online rumors,” they were descriptions given by some of the injured and other local residents on the day of the bombing. Moreover, the local government is currently requisitioning land, something that has led to rather big conflicts: just days before the bombing, a motorcycle was intentionally set on fire. Perhaps those describing the incident reconstructed events based on faulty memories. Later, the official notice emphasized Zhao’s “withdrawn personality,” “revenge on society,” and “criminal record.” These form a neat “chain of logic,” but this chain of logic is, by itself, not without gaps.

With regard to Zhao’s personality, for example, some media reported that Zhao’s teachers said “he was not at all polite and was not popular at school.” But other media quoted teachers and neighbors as having called him “simple and honest,” a “pragmatic and humble rural student,” and an “honest person who loved his family.” [The latter] found it hard to believe that [Zhao] was deeply unhappy or had the mindset of someone wanting to take “revenge on society.” Which of these is the truth? Actually, none of what neighbors or teachers have to say is sufficient to confirm or refute that Zhao really wanted “revenge against society.”

Police in Qiaojia County also said that Zhao “has a criminal record.” But local residents say that Zhao was merely given a public-order detention by police for a few days because of a fight he had with a co-worker. Since the police did not provide any details, residents are not sure what “criminal record” they are referring to. If what the police are calling Zhao’s “criminal record” actually refers to the public-order detention for fighting, then this goes against basic legal common sense. A public-order detention is a record of a transgression but not a “criminal record.” Such a notice creates suspicion that local police are trying to mislead the public, further exposing the gaps in the theory of “revenge against society.”

What to do when the facts are not clear? The most honest and publically responsible thing that government agencies could do is first conduct a thorough investigation of the case—leaving no stone unturned; get clarity as to the facts, causes, and consequences of the crime, such as how Zhao obtained explosives, what sort of detonating device was used, and whether there were any accomplices; and, based on evidence, reveal speculation about the criminal motivations of Zhao or his co-conspirators. Only by doing so will the level of public trust be sufficient to defeat the various rumors in the marketplace of opinion.

According to related reports, the only evidence the police have at the moment is video from that time showing that Zhao was wearing thick clothing not suitable for local weather conditions, that he was wearing a black backpack that might have contained explosives, that the explosion occurred in mid-air (the bomb was not detonated on the ground), and that the explosion left Zhao’s body beyond recognition. Is this evidence enough for a bombing case to meet the [standards of] clear facts and exclusion of reasonable doubt required by the Criminal Procedure Law? According to Chinese law, where a criminal dies, it is not necessary to pursue criminal responsibility. But in this case the victims’ families, the injured, and even society at large demand that police uncover the truth and provide an explanation. A bombing incident with such an impact absolutely must not be left unresolved.

The public’s concern for Zhao Dengyong is by no means the same as support for alleged radical actions. Rather, it is based on a thirst for the truth, because if you want to thoroughly put an end to extremist incidents, you must go to the truth, or root, of the matter. Otherwise, if the full truth about the case remains uninvestigated and the relevant authorities bring out a word or two about the perpetrator’s radical personality as grounds for treating the case as “revenge against society,” thereby avoiding any possible responsibility of the government, the result will be adding fuel to the fire or stirring the soup to keep it from boiling—covering up the real issues. The key point is that it will be impossible for the local government to gain the trust of the people.