Tuesday, June 25, 2019

Renewed Calls to Lower China’s Age of Criminal Responsibility Ignore Benefits of Non-Custodial Measures and Lessons from Abroad Part II of II

Camp Glenwood One-on-One Counseling with Probation Officer. Image Credit: Dui Hua

Can China's Juvenile Justice Policymakers Receive Lessons from Abroad?

In “Renewed Calls to Lower China’s Age of Criminal Responsibility Ignore Benefits of Non-Custodial Measures and Lessons from Abroad” (Part I), Dui Hua analyzed a number of challenges in juvenile justice, both in China and elsewhere, including deciding the age of criminal responsibility and alternatives to criminal confinement. In Part II, Dui Hua looks at promising programs and important research findings from outside China that could be useful for Chinese experts in juvenile justice to study as part of China’s ongoing juvenile justice reforms.

World Health Initiatives Regarding Juveniles

The experiences and practices of other countries and institutions can play an instructive role in China’s efforts to reduce violent behavior by adolescents. Relevant international human rights principles include the 1989 UN Convention on the Rights of the Child, especially articles 37 and 40. UNICEF’s Child Protection Information Sheet on Children in Conflict with the Law, in its summary of key applicable human rights principles, states that “children in conflict with the law have the right to treatment that promotes their sense of dignity and worth, takes into account their age, and aims at their reintegration into society. Further, UNICEF recommends that placing children in conflict with the law in a closed facility should be a measure of last resort, to be avoided whenever possible.” In light of these provisions, UNICEF aims to “reduce incarceration while protecting children from violence, abuse, and exploitation,” while also promoting “rehabilitation that involves families and communities as a safer, more appropriate, and effective approach than punitive measures.” Mirroring some of the policies mentioned by China’s juvenile judges at Dui Hua’s 2017 expert exchange, UNICEF also strongly advocates diversion, restorative justice, and alternatives to confinement.

Experiences from Europe might help Chinese officials in adopting some of these principles as it adjusts its juvenile justice practices. In the European context, the World Health Organization’s (WHO) adolescent mental health programs focus on reducing depression and anxiety disorders, severe cases of which can contribute to violent acts. As evidence of the severity of mental health problems for juveniles, suicide is the “leading cause of death among 10–19-year-olds in low- and middle-income countries of the [European] Region, and the second-leading cause in high-income countries.” To reduce risk factors associated with juvenile violence, European member states of the WHO find that “supportive parenting, a secure home life and a positive learning environment in school are the key factors in building and protecting mental well-being, or mental capital, in childhood and adolescence.”

In 2015, WHO European member states formalized their approach to supporting the mental well-being of adolescents and others experiencing major life transitions. According to the Minsk Declaration, the WHO life-course approach “encompasses actions that are taken early and appropriately to transitions in life,” recognizing that “adolescence, the transition from child to adult, marks the pivotal change to greater personal autonomy. It could signify a new beginning for those who were disadvantaged in their start in life. It also represents an opportunity for policies and programmes to influence key decision-making processes such as the timing of sexual debut and parenthood, the onset or avoidance of risky and addictive behaviours, as well as the acquisition of life skills, the start of independent living, building resilience and the capacity to bounce back in the face of adversity…Effective intervention is also essential to modify the course of other critical phases in life in which people experience dramatic changes in roles and status, such as...the transition from adolescence to adulthood.”

Making Every School a Health Promoting School Image Credit: WHO/SEARO/Sanjit Das

One of the policy initiatives with potential to be used in tandem with the life-course approach is the Health Promoting School concept, developed by WHO and UNESCO. According to these agencies, “Health Promoting Schools have been recognized as a strategic vehicle to promote positive development and healthy behaviours such as physical activity, physical fitness, recreation and play, balanced nutrition, prevent (sic) tobacco use, and preventing being bullied.” Chinese policymakers might gain significant insights, for instance, by comparing the role of schools, parents, and work-study institutions to the Health Promoting School concept, to see if improvements to existing Chinese institutions can be made.

Using Lessons from Abroad to Limit Dominant Role of Police in Juvenile Cases

In addition to improving outcomes for juveniles, thoughtful consideration of the life course approach and health promoting schools concept might help reduce the dominance of police authority in juvenile cases and alleviate the caseload burden on China’s juvenile courts. Too often, police officials focus on exercising punitive measures, like fines and/or administrative detention in juvenile cases. When the police or procurators dismiss cases (which they often do to lower the crime rate and meet bureaucratic goals), they might also be failing to redirect youth to community resources that can help them from re-offending. Taking a holistic and inclusive approach to mental health intervention could be a way to limit police dominance in juvenile justice policy implementation, as, in most cases, local police lack the necessary training or proper tools to deal with juvenile offenders. A local police inspector suggested recently that although a child’s discipline is generally a parental decision, the police could still request young offenders to be sent to government rehabilitation with parental consent. This approach could be beneficial if police officials took a consultative approach to such requests, rather than treating the case solely as a criminal investigation. In the U.S., for example, since the early 2000s US juvenile judges have been “re-establishing their authority to decide whether to transfer youth in conflict with the law from juvenile court to the criminal court and corrections system. Transfer and waiver of juvenile court jurisdiction is frequently used in cases involving serious crimes by offenders aged 16 and younger.”

Adopting lessons from the European and U.S. experiences that incorporate a stronger role for social workers and schools might also ease the caseload burden on China’s courts, which have been hearing cases involving juveniles at least since 1984, the year that the first specialized “juvenile courtrooms” were opened. Adding more juvenile cases to court dockets might simply overwhelm overburdened juvenile judges, who have generally been focused on delivering light sentences, but a focus on light punishment does not address affirmative steps needed to address adolescent mental health through community programs and non-custodial measures. The WHO “life course” approach taken in Europe sees a prominent role for schools as well in supporting adolescent mental health, by providing “a positive learning environment” that serves a key role “in building and protecting mental well-being,” a critical process in reducing violence among juveniles.

Towards Evidence-Based Juvenile Reform in Lieu of Lowering the Age of Criminal Responsibility

Instead of focusing on lowering the age of criminal responsibility as a principal concern, the WHO initiatives strongly suggest that reductions in juvenile violence result from providing a safe and supportive environment for children to grow. While European member states have come together in support of a life-course approach to juvenile mental health, they have not adopted a uniform age for criminal responsibility. According to the London-based Child Rights International Network, France and the Netherlands, for instance, allow children under 14 to be criminally sentenced, while Germany and Italy do not. This seems to suggest that the critical element in European juvenile justice has less to do with selecting a minimum age of criminal responsibility and more with identifying and implementing effective policy solutions based on non-custodial and preventive measures. Similarly, Dui Hua has previously written that the age of criminal responsibility varies significantly among different U.S. states, but there has been a trend to raise the age of criminal prosecution to 18 in light of two important findings: 1) recent neuroimaging studies showing important structural differences between adolescent brains and adult brains that persist well past the age of 20, and 2) evidence that criminal penalties for juveniles lead to more, not less, teen recidivism.

Mental health evaluations are critical for the administration of juvenile justice. Findings support legislation that would establish clear court procedures “regarding when and how juvenile defendants should receive mental health evaluations...A 2016 NCBI/NIH study on mental health and juvenile crime examined the effectiveness of various intervention and treatment programs/approaches, finding that treatment models including Cognitive-Behavioral Interventions (CBI) and Functional Family Therapy (FFT) are effective treatment frameworks for juvenile offenders.” Changes to the age of criminal responsibility in China, such as lowering it to 12 from 14, are unlikely to reduce crime, and conversely, are likely to increase juvenile recidivism. Instead, a comprehensive approach to non-custodial measures that involves a variety of actors, and not just police and prosecutors, needs to be considered for implementation.

Although China’s courts and juvenile justice system have made great strides since the establishment of the first juvenile courtrooms in the mid-1980’s, Chinese policymakers should eschew a focus on lowering the age of criminal responsibility and instead work to fully establish a comprehensive juvenile system that focuses on non-custodial measures. Such an approach would also avoid over-reliance on the police and procuratorial organs and integrate social workers, schools, and parents into the process of promoting well-being among China’s youth.

Wednesday, June 19, 2019

Renewed Calls to Lower China’s Age of Criminal Responsibility Ignore Benefits of Non-Custodial Measures and Lessons from Abroad, Part I

Image Credit: NYU/Counseling

Calls for lowering the age of criminal responsibility in China have emerged again after a recent spate of violent acts committed by adolescents. Because these acts were committed by children under the age of 14, the offenders cannot be criminally punished under Chinese law, leading to societal pressure for greater criminalization of juvenile violence. Legal experts are among those calling for lowering the age of criminal responsibility.

Violence committed by very young offenders is a serious social problem and needs fresh approaches in China and elsewhere. It should be noted initially that violence represents a small percentage of overall instances of youth in conflict with the law, and that some attention should be paid to whether the media is sensationalizing the coverage of these cases. Regarding juvenile justice policy specifically, China could strengthen its non-custodial, preventive, and community institutions to address violent acts committed by children under 14. Furthermore, the role of parents, schools, and social workers in making interventions and referrals to programs for youth in conflict with the law could be reassessed. In China, juvenile cases are often dominated by the police and procuracy, and the role for others with juvenile expertise is frequently understated. On the bright side, juvenile justice reform is a top priority in China, and later sections of this article describe several international initiatives sponsored by the World Health Organization and others that could help integrate evidence-based community solutions into these reforms.

Lowering the Age of Criminal Responsibility?

Juvenile justice reform need not be over-simplified and framed around a polarizing issue like the minimum age of criminal responsibility. Rather, recent events can spark a discussion regarding non-custodial and preventive measures, the proper role of police in juvenile cases, and lessons that can be learned from other legal systems about evidence-based policies to help combat violence committed by young offenders.

There is no disputing that there have recently been disturbing cases of young people committing violent acts in China. In March, a 13-year-old Jiangsu boy killed his mother over a quarrel about money; a 13-year old Hunan boy brutally killed his parents in December 2018; and, in a case in Guangxi, a 12-year old girl killed a classmate, after which the girl did not receive punishment (financial compensation between families was arranged instead).

Although these are tragic events, policy need not be based on a small number of cases removed from the larger context of overall juvenile criminal justice trends. According to statistics reported by Caixin, general patterns in juvenile crime do not indicate a crisis in juvenile crime: although the number of arrests of juveniles increased to 29,350 in 2018, the number of indictments of juveniles based on these arrests decreased at a much higher rate. Additionally, Professor Zhang Hongwei of Jinan University’s Juvenile and Family Law Research Center conducted a statistical analysis (Figure 1) of juvenile offenders in China, which shows that the number of offenders younger than 18 remained flat between the years of 1991-2014, even though the overall number of offenders increased dramatically over the same period.

Figure 1. Professor Zhang Hongwei’s Multi-year Analysis of Juvenile Crime

Nonetheless, some legal experts have called for China’s age of criminal responsibility to be lowered to 12. For example, Li Chunsheng, of the Hubei Lawyers Association, who specializes in minor protection law, said in July 2018 that the age of criminal responsibility should be lowered because “children’s mental maturity was becoming accelerated and many juvenile offenders were showing similar cognitive ability to adults.” However, Li provided no evidence, scientific or otherwise, for her assertion that children’s “maturity” is “accelerated,” and her suggestion is directly contradicted by a variety of studies indicating not only that adolescent brains in fact mature several years after the age of 14 but also that adult penalties for younger offenders produce more teen recidivism--factors which have led many U.S. states to raise the age for “adult” criminal prosecution to 18.

Non-Custodial and Preventive Measures

Other experts have suggested that, instead of over-criminalizing and incarcerating the youth of a nation, the proper emphasis belongs on non-custodial and preventive measures for reducing juvenile violence. These are not only more grounded in scientific evidence but are also more fiscally responsible. Non-custodial measures emphasize rehabilitation over punishment, and often include programs involving community support and mental health counseling. Social workers can be trained in providing youth psychological examinations in cooperation with schools and parents to capture a fuller picture of the conditions that lead to violence.

In China, the Supreme People’s Procuratorate (SPP) is moving in this direction by pushing for renewed juvenile justice reform, hoping to implement preventive laws to reduce juvenile recidivism. The 2018-2022 SPP reform plan aims to reduce juvenile crime through family education, procedural adjustments, and preventive measures. In an interview, the president of the ninth procuratorate division (which is dedicated to juvenile cases) acknowledged that current law lacks effective correctional measures to address serious juvenile crime. The proposed solution: a “ladder” of different procedural levels to “realize individualized and effective correction.”

Although China’s current juvenile system lacks effective correctional measures, there are a few non-custodial programs already in place. In 2017, Dui Hua held an expert exchange with juvenile judges from mainland China who discussed China’s community-based alternatives to confinement. These include: “help and educate” (bangjiao 帮教) measures, which are based on Confucian doctrines of caring for the young and involve efforts to reintegrate juvenile offenders into the community as a means of crime prevention; diversion (fenliu分流), similar to US programs that redirect juveniles to short-term community interventions; restorative justice, in which offenders learn of the consequences of their actions for the victims, with the larger aim of developing a sense of responsibility; and work-study schools (gongduxuexiao工读学校), which have been proposed as a way to deal with juvenile delinquency “for students who engage in repeated acts of bullying or violence and fail to respond to other disciplinary measures.” Work-study schools receive students who have been referred to the school. The Juvenile Delinquency Prevention Law states that juveniles can only be sent to a work-study school upon application by their parents, guardians, or schools, but work-study has also been criticized for disproportionately targeting “left-behind” (liushouertong 留守儿童, rural children whose parents have gone to other regions to work and have left them in the care of family members, often grandparents) and migrant children.

Policy discussions indicate that clear alternatives to juvenile confinement exist, but that proper implementation determines outcomes. In a recent school bullying case that involved battery, none of the above interventions was attempted, and instead, a superficial “criticism and education” (piping jiaoyu批评教育) session was employed. In 2018, a 12-year old Hunan boy killed his mother, and the boy was released and later sent to a specialty school in Changsha to receive three years of “restrained education” (guanshujiaoyu管束教育). Instead of these ambiguous policies, there could be a more systematic implementation of evidence-based interventions.

Regarding preventive measures, counselors and educators in school could be trained to identify certain behaviors and provide counseling. What kind of behaviors can raise red flags? How are they empirically determined? Can civil society organizations work in cooperation with schools and the judicial system to identify solutions early on? In looking for red flags, Chinese policymakers might find it useful to reference a comprehensive, detailed mental health intervention guide published by the World Health Organization (WHO) in 2016 that is recommended for use with adolescents. Intervention guides could be used as a reference by a variety of interested parties, including parents, school teachers, judges, and law enforcement officials. The guides might also help circumscribe the undue focus on juveniles who commit violent crimes, which ignores the fact that the overwhelming majority of juvenile offenses are non-violent.

Continue reading Part II here.