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.