Wednesday, December 21, 2016

Bullying Ignites Calls to Lower Age of Criminal Responsibility in China

Juvenile Prison Library. Image credit: Xin Hua Sichuan.

In recent months, we have seen weekly, sometimes daily, media coverage of violent bullying amongst children in Chinese schools. Prompted by such reports, the Ministry of Education, Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, and five other central party and government bodies issued a guiding opinion last month on the prevention of school bullying and violence among primary and secondary school students.

With disturbing and viral videos of such incidents circulating throughout Chinese social media and lurid media reports of deadly assaults and other crimes committed by children, there is a growing sense of moral panic about the rise in juvenile crime and the inadequacy of existing laws and institutions to handle the problem.

Public sentiment on the issue of juvenile crime spiked last August, following a pair of news reports that attracted widespread attention. In one, a 13-year-old Guangxi boy was sentenced to three years of “custody and education” after brutally killing three young children with rocks and a knife. In another, a 13-year-old boy from Sichuan was released into the custody of his father after using gasoline to set a young teacher on fire in order to steal her iPhone.

Stories like these have garnered vocal support for lowering the age of criminal responsibility, currently set at 14 years old, for violent and other serious crimes. One online poll showed 85 percent of respondents agreeing that the age limit should be lowered. Some lawyers and other commentators have taken up the issue, calling for immediate legislative reform.

Commentators cite societal and cultural factors—such as decreased parental supervision and excessive exposure to violent video games and movies—as the major contributing factors to the apparent rise in juvenile crime. As such they see stricter legal sanctions as the only way to control the rise and criticize recent reform trends towards non-custodial measures and diversion from punishment as only further contributing to juvenile delinquency.

Despite popular pressure, there are signs of official support for reforms from Chinese legal experts who are skeptical about adopting a more punitive juvenile justice regime. Last month, People’s Daily, the official Communist Party’s newspaper, published an essay by Beijing Normal University Law School Professor Song Yinghui warning that lowering the age of criminal responsibility ran counter to the evidence-based, “scientific” approach that has guided the development of juvenile justice in China in recent years. Song advocates for treating the root social causes of juvenile delinquency, rather than turning to a more punitive system that seemingly promises quick fixes and the “instant gratification” of seeing more children tried as adults.

The gradual pace of juvenile justice reform and the nature of sensational and viral media coverage on juvenile crime will all but guarantee that the debate over lowering the age of criminal responsibility will continue for some time to come.

Looking Rationally at the Age of Criminal Responsibility in China

Song Yinghui

People’s Daily, November 16, 2016

In recent years, there has been report after report involving incidents of school violence and socially harmful, terrible acts carried out by young juveniles. Some advocate lowering the age of criminal responsibility, but this proposal lacks empirical data and scientific basis. Such a suggestion could potentially make things worse, rather than better. We should take an objective and rational approach to the problem of juvenile criminal behavior and should not have scientific and professional judgements influenced by extreme individual cases or public opinion.

Chinese legal provisions on the age of criminal responsibility are in line with global trends of criminal law and correspond with circumstances in our country. At the present time, a majority of countries set the age of criminal responsibility at 14 years old or above. Although some countries set a lower age limit, these countries all have separate legal provisions and judicial processes for juvenile crime. In the vast majority of cases in these countries, minors who have committed harmful acts are handled through non-criminal or non-punitive interventions; only a small number of juveniles are convicted and punished using the adult criminal procedure.

Ever since China’s first modern criminal code, the Great Qing New Criminal Law of 1911, we have gradually adopted a dual standard for the age of criminal responsibility at 14 years [Ed.: for certain serious offenses] and 16 years [Ed.: for all other offenses]. This assessment has taken a number of factors into consideration, including China’s historical and cultural traditions, geographical and climatic conditions, criminal justice policies, child development, amount of time spent in school, and social experience. This standard has endured the test of time and is in line with the physical and mental characteristics of juveniles and the patterns regarding the occurrence and development of crime.

The argument in favor of lowering the age of criminal responsibility lacks support from empirical data and risks becoming victim to the fallacious idea that as humans become more civilized the age of criminal responsibility ought to be lowered.

To this point in time, I have seen no systematic set of statistics or research on harmful behavior by minors under the age of 14, and there is no uniform system for reporting acts of school violence. Therefore, we shouldn’t simply make sweeping generalizations from extreme, terrible incidents exposed by the media and conclude that that the number of criminal acts by minors under the age of 14 is rising dramatically. If we were to use these reports as the empirical basis for amending the universal legal standard and thereby lowering the age of criminal responsibility, it would violate the spirit of scientific and cautious legislation.

Today’s juveniles are maturing more quickly than their age-peers of 30 years ago, but the social environment in which they are living has also undergone tremendous change. There has been no shortening of the growth period in which they learn, practice, and engage in trial and error, and their mental states are not maturing any earlier. In fact, when young juveniles commit harmful acts, it demonstrates that they do not yet possess the ability to discern situations or control themselves. Otherwise, as civilization progressively advances the age of criminal responsibility would get lower and lower.

Lowering the age of criminal responsibility does nothing to resolve the problems that lead young juveniles to commit harmful acts. A great deal of empirical evidence and research shows that the root of illegal acts by juveniles are problems with families or guardians, education, and social governance. For example, most of the detainees in juvenile detention centers come from broken homes, or are "left behind" children with precarious living situations, marked by idleness, homelessness, and upbringings surrounded by the negative influences of entertainment venues like Internet cafés, bars, or karaoke parlors.

Simply punishing juveniles is not only ineffective at preventing juvenile crime; it actually is a way of avoiding problems and shifting responsibility. Sentencing juveniles to prison not only leads to cross-infection from others; it also does nothing to help repair social relations. Once extremely malleable juveniles are labeled as criminals, it is easy for them to develop a mentality of hatred and even become antisocial and prone to re-offend. Research in psychology, sociology, psychiatry, and behavioral science all shows that juvenile psychology is highly susceptible and volatile. If provided appropriate education and intervention, the vast majority of problematic juvenile behavior or psychological deviations can be corrected.

When we maximize the interests of children, we are also maximizing the interests of society. Only by enabling juveniles who have committed socially harmful acts to return to society do we truly protect society.

The most urgent task is to establish a system of early intervention separate from the adult system that distinguishes between minor and serious harmful behaviors; to use educational preventative measures, targeted to address the problems facing juveniles; and to change the current situation where we “lock them up and forget them.” At the same time, we should immediately improve the legal system and establish measures that strengthen family monitoring. We need to strengthen responsibility of schools and educators and improve mechanisms to prevent and manage school violence. We should better regulate harmful social environments that have a negative influence on the education and daily life of juveniles. And we must increase government assistance and support for juveniles and their families who live in extreme poverty.

In other words, we must solve the problem at its root. This is the only true path to responding to and preventing illegal criminal acts by juveniles.

(Song Yinghui is Director of the Juvenile Justice Expert Committee of the Criminal Procedure Law Research Association, China Law Society)

Tuesday, December 13, 2016

China Tightens Clemency Rules for Political Prisoners

Supreme People's Court of China, Beijing. Image credit: WIPO Magazine

On November 14th the Supreme People’s Court (SPC) published China’s most recent interpretation of the Criminal Law’s articles on sentence reduction and parole. The regulations, which take effect on January 1, 2017, will tighten rules for granting reduced sentences and parole to prisoners serving time for endangering state security (ESS) and other serious crimes including corruption. [1] They reflect a 2014 guiding opinion (指导意见) from the Communist Party’s Political and Legal Commission that mandated tougher rules for “three types” of crimes including bribery, financial fraud and organized crime—and they are considerably more detailed than the Court’s previous interpretation on sentence reduction and parole, issued in 2012.

For decades, the SPC has issued regulations calling for “strict handling” of clemency for prisoners serving sentences for counterrevolution and (after 1997) ESS, a category of crimes that includes subversion, inciting subversion, splittism, and inciting splittism. However, until these latest regulations were issued, the court hadn’t defined “strict handling”, leaving it up to the provinces to decide what measures to apply to ESS prisoners in each jurisdiction. [2]

Under the new regulations, “ordinary prisoners” sentenced to life in prison must wait two years before the sentence is commuted to a fixed term sentence of no less than 19 years. Thereafter, each ensuing sentence reduction can occur at a minimum interval of two years, and the length of the reduction is based on the prisoner’s behavior and whether the prisoner performs “meritorious service.” [3]

The new regulations mandate that ESS prisoners like Ilham Tohti and Wang Bingzhang (王炳章) and other prisoners serving life sentences for serious crimes must wait a minimum of three years, rather than two, before the sentence is commuted to a term of no less than 20 years (as opposed to 19 for ordinary inmates). While each ensuing sentence reduction can occur at a minimum of a two-year interval, reductions for ESS prisoners cannot exceed one year. In the best-case scenario, if Ilham Tohti’s life sentence were commuted to a 20-year fixed term sentence in January 2017, it would be 2030 before his sentence would expire, and that would be only if all regulatory requirements for subsequent sentence reductions had been satisfied.

Similarly, prisoners serving fixed term sentences of more than ten years under the new regulations are treated differently according to whether the crime is an ordinary crime or falls under one of the categories of serious crime (which includes ESS) as specified in the SPC regulations. Thus, an ordinary prisoner serving a 12-year sentence for robbery must wait a minimum of two years before being eligible for his or her first sentence reduction, and thereafter must wait at least eighteen months before being considered for subsequent reductions. The length of the reductions is largely at the discretion of the prison authorities, but cannot exceed two years.

By contrast, while a prisoner serving a 12-year sentence for subversion, an ESS crime, must wait at least two years before the first sentence reduction (which is the same for ordinary prisoners) thereafter, he or she must wait more than eighteen months before being considered for a sentence reduction, and the sentence reduction cannot exceed one year.

Three points are worth bearing in mind:

  1. The new regulations apply to everyone currently serving prison terms; in other words, existing sentences are not “grandfathered.” Dui Hua has documented many cases of prisoners serving long sentences for counterrevolution and endangering state security who have received generous sentence reductions that released them from prison many years before the expiration of their original sentences. (Hong Kong journalist Xi Yang , for example, served less than four years of a 12-year sentence for trafficking in state secrets.) The new regulations apply to prisoners whether their sentences were handed down before January 1, 2017 or after. Prior rules and practices will no longer apply.

  2. Provincial prison authorities will be able to impose stricter restrictions than those in the SPC regulations, but they may not impose laxer restrictions.

  3. Medical parole is not covered by the new regulations. Prisoners with serious illnesses can be released at any time with the approval of prison authorities and, for prominent political prisoners, approval by the Ministry of Justice in Beijing. (ESS prisoners who perform meritorious service can be granted clemency, but Dui Hua is not aware of a single example of an ESS prisoner getting a sentence reduction or parole in this manner.) Accordingly, as it has been for many years, medical parole remains the best hope for political prisoners seeking early release from prison.

1. For sentences up to ten-years, serious crimes include graft; undermining financial order and committing security fraud; organizing, leading, participating in, harboring, or colluding with organized crime; endangering state security; terrorism; serious drug-related crimes; recidivism; refusing to fulfill financial judgment. For sentences of ten-years or more, serious crimes include the above, and murder, rape, robbery, kidnapping, arson, causing an explosion, releasing harmful materials, and organizing violent crimes.   Return to Article

2. In the absence of a national standard as to what "strict handling" means, local authorities have been given broad discretion of interpretation and implementation. In December 2003, the Shanghai High People’s Court issued provisional rules stipulating that a sentence reduction for an ESS prisoner is normally up to one year shorter than that for other prisoners who satisfied the same conditions. The rules also stated that there must be an additional delay of one year before sentence reduction when a prisoner was eligible for “a normal commutation to a 20-year fixed-term sentence." In 2009, the Yunnan Prison Management Bureau announced that sentence reductions for ESS prisoners would be three to six months shorter than those for other inmates under satisfying the same conditions. Restrictions on parole for ESS prisoners are also in force in other provinces and municipalities. In January 2005, Beijing issued a decision that required instructions from higher organs before parole can be granted to ESS prisoners. In the same year, Shandong issued a similar provisional notice that stated “criminals who endanger state security… are normally not to be granted parole.”    Return to Article

3. The regulations define meritorious service as 1. Preventing others from committing crimes; 2. Reporting and exposing criminal activities inside or outside prison, or providing important clues for solving a case, which are later verified as being true; 3. Assisting the judicial organs in arresting other criminal suspects; 4. Making outstanding achievements in technological innovation in production and scientific research; 5. Actively resisting natural disasters or preventing major accidents; 6. Making major contributions to the state or society.   Return to Article