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 1 of 2), 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 2, 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.