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.