Sealing Juvenile Records: From Pilot to Practice?

After years of study, China is starting to take important steps to reform its juvenile criminal justice system. Balancing leniency and severity as a means to prevent recidivism, Chinese law enforcement officials have been exploring measures like delayed prosecution, non-custodial punishment, and community corrections.

Earlier this year, China’s Criminal Law was amended to exempt individuals from reporting light, juvenile criminal records when seeking employment or military enlistment. Now it is no longer necessary to disclose sentences of five years’ imprisonment or less (including suspended sentences and other non-custodial penalties) for crimes committed before the age of 18. Meanwhile, a draft revision of the Criminal Procedure Law (CPL) currently under consideration would require that judicial organs and other government bureaus strictly limit the release of such records.

Sealing Juvenile Records.
Image Credit: Southern Daily

The sealing of juvenile criminal records can have a significant impact on an individual’s future, as even relatively light criminal offenses can limit opportunities for education and employment. According to a study by the Tianning District People’s Court in Changzhou, Jiangsu Province, 16 of 98 juvenile offenders given non-custodial sentences over a five-year period were unable to obtain employment because of their prior criminal records. Proposed CPL revisions come as several locations throughout the country are still experimenting with new ways of dealing with the juvenile records.

Typical are regulations that took effect in Changzhou on August 1. These regulations allow juvenile offenders, their guardians, or their relatives to petition courts to seal records of first offenses punished by no more than five years’ imprisonment. Before sealing, courts must scrutinize an individual’s post-conviction behavior and sincerity of remorse; after sealing, records can be unsealed upon further offense.

The new draft CPL does not appear to require courts to take offenders’ behavior or attitude into consideration when sealing records nor to provide for unsealing records after an additional offense. The variations between proposal and pilot demonstrate the importance of implementation, which will depend on concrete measures established by the Supreme People’s Court, Supreme People’s Procuratorate, and Ministry of Public Security.

Once drafted, these measures may also clarify whether individuals who commit certain offenses will be excluded. Under current regulations in Changzhou and other locales, individuals convicted of endangering state security, terrorism, or organized criminal activity are not eligible to have their records sealed. Such limitation seems to go against the spirit of the law, given that neither the amended Criminal Law nor the proposed CPL provisions make any mention of offense categories in connection with juvenile criminal records.

Several legislators and legal practitioners attending a recent conference—hosted by the All-China Lawyers Association Professional Committee for the Protection of Juveniles and the Beijing Juvenile Law Research Association—on the proposed provisions expressed concern that sealing criminal records was insufficient. Instead, they advocated expunging records fully after a specified period of time.

Despite having one of the worst juvenile crime rates in the country, Guangdong Province recently announced a plan to test expunging as a means of expanding efforts to help juvenile offenders re-enter society. From 2004 to 2009, Guangdong courts heard the criminal cases of more than 43,000 juveniles, accounting for 10 percent of all criminal trials in the province. Since 2009, Guangdong's procuratorates have prosecuted more than 23,000 juvenile offenders, 70 to 80 percent of whom are the children of migrant workers drawn to the Pearl River Delta's export manufacturing center. 

Guangdong intends to expunge the criminal records of those sentenced to non-custodial punishment and to limit the release of any record of arrest or criminal investigation that did not lead to prosecution. (On experiments already underway in Beijing, please see this earlier report.)

Inevitably, given the overall concern with social stability in China, some have raised concerns that measures like delayed prosecution and record sealing will send the wrong message and limit the deterrent effect of criminal punishment. Commenting on the new measures in Guangdong, a recent editorial in Southern Daily, the Guangdong Province Communist Party Committee's official paper, urged caution:

未成年人心理发育不成熟，不能因其一次失足就否定其终生的可塑性，否则是对他们的极端不公平；但同样，对未成年人犯罪不能一味强调“宽”，不适当的宽就是放纵，反而变相鼓励未成年人再次犯罪。[Juveniles are psychologically immature, and it would be extremely unfair if we blocked their ability to mold themselves because of a single slip-up. But at the same time, we shouldn’t simply emphasize “lenience” in handling juvenile crime, because improper lenience is equivalent to indulgence that could, on the contrary, implicitly encourage juveniles to re-offend.]

Such concern reflects anxiety about how legislators should balance the rights of individuals and the rights of society. With juvenile justice reforms still undergoing experimentation in a relatively small number of locations, the prospect of extending lenience to juvenile offenders appears risky to some. National People’s Congress Deputy Yao Xiaoying also voiced concern during the initial reading of the revised CPL draft in August:

如果对五年以下的免予起诉，也不向社会公布，虽然对一个孩子今后走上社会是一个重要的保护，但在这个保护当中，我们对另外一部分人的生命、财产、成长的安全如何保护？这个社会承载的将是放任他继续犯错误的成本，这个成本巨大。[If juvenile offenders] are exempt from prosecution for [punishments of five years or less] and this cannot be publicly reported, though it would be an important protection for a child’s future entry into society, how can we concurrently protect the safety of others’ lives, property, and security? Society must bear the burden of allowing [an individual] to continue to make mistakes. This is a huge burden.]

If the proposed additions to the CPL are passed, it would represent an important step in the evolution of juvenile justice reform in China. It remains to be seen, however, whether the practical impact of such legislation will be blunted by restrictive rules for implementation and whether current willingness to pursue even more progressive practices like expunging might recede amongst waves of concern over moving too fast, too soon.

Translation: Amendments to the Criminal Procedure Law of the People’s Republic of China (Draft) [Excerpt]

There has been much comment on the draft of China's amended Criminal Procedure Law, now open for public comment on the National People's Congress webpage. Virtually all comment to date has been on the negative implications of the mooted enhancement of police powers to secretly detain suspects in endangering state security cases. While Dui Hua shares the concerns of many inside and outside of China over the proposed changes to the section on residential surveillance, it notes positive changes set out in the draft law.

Among the most significant of the proposed changes is the addition of a section on juvenile cases. (China defines juveniles as individuals between the ages of 14 and 18, exclusive.) Reflecting years of inquiry into both domestic experiments and international practice, the proposed amendments represent the biggest improvement in the treatment of juvenile offenders within China’s criminal justice system since the founding of the People’s Republic in 1949. The text and Dui Hua’s complete translation of the juvenile cases section can be found below. Dui Hua's press statement can be read in Dui Hua News.

*

刑事诉讼法修正案（草案）条文及草案说明 [摘选]

九十五、增加一章，作为第五编第一章：

“第一章未成年人犯罪案件诉讼程序

“第二百六十三条对犯罪的未成年人，实行教育、感化、挽救的方针，坚持教育为主、惩罚为辅的原则。

“人民法院、人民检察院和公安机关办理未成年人犯罪案件，应当保障未成年人行使其诉讼权利，保障未成年人得到法律帮助，并由熟悉未成年人身心特点的审判人员、检察人员、侦查人员进行。

“第二百六十四条未成年犯罪嫌疑人、被告人没有委托辩护人的，人民法院、人民检察院、公安机关应当通知法律援助机构指派律师为其提供辩护。

“第二百六十五条对于未成年犯罪嫌疑人、被告人，应当严格限制适用逮捕措施。人民法院决定逮捕和人民检察院审查批准逮捕，应当讯问未成年犯罪嫌疑人、被告人。

“对被拘留、逮捕和执行刑罚的未成年人与成年人应当分别关押、分别管理、分别教育。

“第二百六十六条对于未成年人犯罪案件，在讯问和审判时，应当通知犯罪嫌疑人、被告人的法定代理人到场。无法通知、法定代理人不能到场或者 法定代理人是共犯的，也可以通知犯罪嫌疑人、被告人的其他成年近亲属，所在学校、单位或者居住地的村民委员会、居民委员会、未成年人保护组织的代表到场， 并将有关情况在讯问笔录中注明。到场的法定代理人可以代为行使犯罪嫌疑人、被告人的诉讼权利。

“到场的法定代理人或者其他人员认为办案人员在讯问、审判中侵犯未成年人合法权益的，可以提出意见。讯问笔录、法庭笔录应当交给到场的法定代理人或者其他人员阅读或者向他宣读。

“讯问女性未成年犯罪嫌疑人，应当有女工作人员在场。

“审判未成年人犯罪案件，未成年被告人最后陈述后，其法定代理人可以进行补充陈述。

“询问未成年被害人、证人，适用第一款、第二款、第三款的规定。

“第二百六十七条对于未成年人涉嫌刑法分则第四章、第五章、第六章规定的犯罪，可能判处一年有期徒刑以下刑罚，符合起诉条件，但有悔罪表现的，人民检察院可以作出附条件不起诉的决定。人民检察院在作出附条件不起诉的决定以前，应当听取公安机关、被害人的意见。

“未成年犯罪嫌疑人及其法定代理人对人民检察院决定附条件不起诉有异议的，人民检察院应当作出起诉的决定。

“第二百六十八条在附条件不起诉的考验期内，由人民检察院对被附条件不起诉的犯罪嫌疑人进行监督考察。犯罪嫌疑人的监护人，应当对犯罪嫌疑人加强管教，配合人民检察院做好监督考察工作。

“附条件不起诉的考验期为六个月以上一年以下，从人民检察院作出附条件不起诉的决定之日起计算。

“被附条件不起诉的犯罪嫌疑人，应当遵守下列规定：

“（一）遵守法律、行政法规，服从监督；

“（二）按照考察机关的规定报告自己的活动情况；

“（三）离开所居住的市、县或者迁居，应当报经考察机关批准；

“（四）按照考察机关的要求接受教育矫治。

“第二百六十九条被附条件不起诉的犯罪嫌疑人，在考验期内发现有下列情形之一的，人民检察院应当撤销附条件不起诉的决定，提起公诉：

“（一）实施新的犯罪或者发现决定附条件不起诉以前还有其他罪需要追诉的；

“（二）违反治安管理规定或者考察机关有关附条件不起诉的监督管理规定，情节严重的。

“被附条件不起诉的犯罪嫌疑人，在考验期内没有上述情形，考验期满的，人民检察院应当作出不起诉的决定。

“第二百七十条审判的时候被告人不满十八岁的案件，不公开审理。

“第二百七十一条在法庭调查中，人民法院应当对未成年被告人的成长经历、犯罪原因、教育改造条件进行了解。

“第二百七十二条犯罪的时候不满十八岁，被判处五年有期徒刑以下刑罚的，司法机关和有关部门应当对相关犯罪记录予以封存。

“犯罪记录被封存的，不得向任何单位和个人提供，但司法机关为办案需要或者有关单位根据法律法规规定进行查询的除外。依法进行查询的单位，应当对被封存的犯罪记录的情况予以保密。

“第二百七十三条办理未成年人犯罪案件，除本章已有规定的以外，按照本法的其他规定进行。”

Amendments to the Criminal Procedure Law of the People’s Republic of China (Draft) [Excerpt]

95. Addition of Article 5 Section 1:

“Section 1: Procedure for Juvenile Criminal Cases

“263. Implement educational, reformative, and redemptive guiding principles for juvenile offenders, upholding the principle of education first, punishment second.

“People’s courts, people’s procuratorates, and public security organs handling juvenile criminal cases shall ensure that juveniles exercise their procedural rights, ensure juveniles receive legal aid, and see that the cases are handled by judges, procurators, and investigators who are familiar with the special physical and emotional needs of juveniles.

“264. For juvenile criminal suspects or defendants without defense counsel, people’s courts, people’s procuratorates, and public security organs shall notify legal aid organizations to appoint a lawyer to serve in their defense.

265. Arrest measures shall be strictly limited for juvenile criminal suspects or defendants. People’s courts deciding to arrest and people’s procuratorates investigating and approving arrest shall interrogate the juvenile criminal suspect or defendant.

“Juveniles who have been detained, arrested, and are serving their sentence shall [each] be held separately, managed separately, and educated separately from adults.

“266. During the interrogation and trial of juvenile criminal cases, legal representatives of juvenile criminal suspects or defendants shall be notified to be present. [In instances where] such notification cannot be made, legal representatives cannot be present, or legal representatives are accomplices, notification may also be given to another close adult relative of the criminal suspect or defendant; a representative of his or her school or work unit; or a representative of the village committee, residential committee, or juvenile protection organizations in his or her place of residence, and a note made of this in the interrogation record. Present legal representatives may exercise procedural rights on behalf of the criminal suspect or defendant.

“A present legal representative or other member of personnel that believes personnel handling the case violated the lawful rights and interests of the juvenile during interrogation or trial may submit an opinion. Interrogation records and court records shall be provided to the present legal representative or other member of personnel to read or to be read aloud to him/her.

“Interrogation of female juvenile criminal suspects shall be done in the presence of female staff.

“In the trial of a juvenile criminal case, after the final statement of the juvenile defendant, his/her legal representative may make an additional statement.

“The regulations in Clauses 1, 2, and 3 apply to the questioning of juvenile victims and witnesses.

“267. [For] juveniles suspected of crimes in Sections 4, 5, and 6 of the enumerated offenses of the Criminal Law [i.e., crimes against a person’s individual or civil rights, crimes against property, and crimes of disturbing social order] who face fixed-term imprisonment of one year or less and meet the criteria for prosecution but have expressed regret, the people’s procuratorate may issue a decision of conditional non-prosecution. Before issuing a decision of conditional non-prosecution, the people’s procuratorate shall hear the opinions of public security organs and victims.

“[When] juvenile criminal suspects and legal representatives object to the people’s procuratorate’s conditional non-prosecution decision, the people’s procuratorate shall issue a decision to prosecute.

“268. During the probation period of conditional non-prosecution, the people’s procuratorate is to conduct monitoring and evaluation of the criminal suspect. The criminal suspect’s guardian shall strengthen discipline, cooperating with the people’s procuratorate to accomplish monitoring and evaluation work.

“The probation period of conditional non-prosecution shall be between six months and one year, starting from the day the people’s procuratorate issues its decision of conditional non-prosecution.

“Criminal suspects under conditional non-prosecution shall adhere to the following regulations:

“1. Respect the law and administrative regulations and submit to monitoring;
“2. Report his/her activities according to regulations stipulated by the probation organ;
“3. Report to and seek approval from the probation organ [when] leaving his/her city or county of residence or changing his/her place of residence;
“4. Accept correctional education according to the requirements of the probation organ.

“269. [If] the following circumstances are discovered for criminal suspects under conditional non-prosecution during the probation period, the people’s procuratorate shall vacate the conditional non-prosecution decision and prosecute:

“1. Commits another crime or is found to have had other prosecutable [offenses] prior to the decision of conditional non-prosecution;
“2. Commits in a serious manner a violation of either public order regulations or the probation organ’s monitoring-management regulations relating to conditional non-prosecution.

“[For] criminal suspects who complete the probation period of conditional non-prosecution without either of the aforementioned circumstances occurring, the people’s procuratorate shall issue a decision not to prosecute.

“270. Hearings shall not be public where defendants are younger than 18 years old at the time of trial.

“271. During court investigation, the people’s court shall [seek to] understand the juvenile defendant’s experience growing up, reasons for committing the crime, and conditions of education and reform.

“272. For those younger than 18 years old at the time of the offense who have been given a sentence of less than five years of fixed-term imprisonment, the judicial organs and relevant departments shall seal relevant criminal records.

“Sealed criminal records must not be provided to any work unit or individual, except [in situations where] judicial organs need them to conduct case work or relevant work units are conducting an inquiry in accordance with laws and regulations. Work units conducting an inquiry according to the law shall treat the situation of sealed criminal records with confidence.

“273. [Other aspects of the] handling of juvenile criminal cases, unless covered by the regulations of this section, shall be in accordance with other regulations of this law.”

Moving the Mountain: China’s Struggle for Death Penalty Reform

The Li Changkui (李昌奎) case demonstrates the negative effect of public opinion and official interference on death penalty reform in China. The Zhaotong Intermediate People’s Court sentenced Li to death for one count of rape and two counts of murder in July 2010. Li appealed, and the Yunnan High People’s Court revised the sentence in March 2011 to death with two-year reprieve—a uniquely Chinese sentence that is virtually always reduced to either a life or fixed-term sentence.

By several accounts, these two trials were not marred by procedural error, and according to a 2008 op-ed by Hu Yunteng, vice-director of the Research Office of the Supreme People’s Court, a suspended death sentence is not out of the ordinary for a homicide case involving personal disputes. (Xinhua reported that Li proposed to one of his victims before the murders but was rejected by her family; the other was the first victim’s little brother.) In the op-ed published by Legal Daily in March 2008, Hu said:

In the past, when homicide cases arose from contradictions among people and neighborhood disputes, a large number of defendants were sentenced to death with immediate execution; now, however, the death penalty with immediate execution is nearly unknown in such cases.

There was little media attention to Li’s case until about three months after the high court’s verdict. In June 2011, in Xi’an, Shaanxi Province, Yao Jiaxin (药家鑫) was executed for intentionally killing a woman after accidentally hitting her with his car. Media attention to the Yao Jiaxin case started before Yao went to trial in Xi’an and mostly served to decry the heinous nature of his crime. Although Yao was executed in Shaanxi, his high-profile case spurred an onslaught of comparative media reports and forum posts on the perceived leniency that Li had received in Yunnan.

The brother of Li’s victims holds up a sign protesting Li’s reduced sentence of death with two-year reprieve. Photo credit: Huang Xiuli, Southern Weekly

Responding to popular appeals for harsher sentencing, the Yunnan High People’s Court held a press conference on July 6, 2011. Judges Zhao Jiansheng and Tian Cheng, the court spokesman, emphasized the need to change the traditional concept of retributive justice. The judges explained that Li was eligible for a lighter sentence because he committed a crime of passion, turned himself in to authorities, and offered to compensate the victims’ family. Judge Zhao asserted that “the Supreme People’s Court requires that the death penalty be extremely carefully applied in cases that are caused by civil disputes and conflicts between married couples, families, and neighbors.”

The July press conference indicated that the Yunnan High People’s Court was prepared to withstand public pressure and stick to its verdict of death with two-year reprieve. But the court, citing Articles 204 and 205 of the Criminal Procedure Law, announced a retrial only a week later. Then on August 22 it reversed its decision and put Li back on death row.

The reversal led to demands for retrial from another victim’s family. Sai Rui (赛锐) was 21 when he stabbed a woman to death for refusing his romantic advances. Like Li, he turned himself in to authorities, was sentenced to death by the Zhaotong Intermediate People’s Court, and ultimately sentenced to death with two-year reprieve by the Yunnan High People’s Court. The media did not report heavily on the case before July 2011, and the appeal verdict, issued in November 2009, was upheld.

Timeline of Li, Sai, Yao Cases

Date	Event
6/18/2008	Sai Rui murders a young woman at a café in Zhaotong, Yunnan, and flees the scene.
5/2009	Zhaotong Intermediate People’s Court sentences Sai to death.
11/2009	Yunnan High People’s Court (YHPC) revises sentence to death with two-year reprieve, citing 1) Sai turned himself in; 2) it was a crime of passion; and 3) first trial sentencing was inappropriate.
5/16/2009	Li Changkui rapes and murders a young woman and her brother in Zhaotong and flees the scene.
5/20/2009	Li turns himself in.
7/15/2010	Zhaotong Intermediate People’s Court sentences Li to death, rejecting the defense's argument that it was a crime of passion.
10/20/2010	Yao Jiaxin hits a woman with his car and stabs her to death in Xi’an, Shaanxi.
3/4/2011	YHPC revises Li’s sentence to death with two-year reprieve.
4/22/2011	Xi’an Intermediate People’s Court sentences Yao Jiaxin to death.
5/20/2011	Shaanxi High People’s Court upholds Yao’s sentence on appeal, sends to SPC for review.
6/7/2011	Yao is executed.
7/6/2011	YHPC holds a press conference regarding its decision, emphasizing 1) reform of retributive killing; 2) Li turned himself in; 3) lesser social impact of murder cases resulting from personal disputes; and 4) SPC policy of “killing less, killing carefully.”
7/10-13/2011	YHPC announces trial review procedure, and provincial procuratorate suggests retrial.
8/2011	Victim’s family calls for a retrial for Sai.
8/22/2011	YHPC holds retrial in Zhaotong and sentences Li to death, ruling that the trial of second instance was correct in procedure but inappropriate in sentencing.

Due to its location along the Burmese border, Yunnan deals with a disproportionate amount of drug cases that carry the death penalty. (In 2006 Dui Hua uncovered the only complete timeline giving the number of executions in a Chinese administrative unit, Maguan County in Yunnan. In a county of 400,000 people, six were executed in 1999, the latest year for which statistics are available.) Partly because drug cases are at the intersection of capital punishment and HIV, and partly because of its high number of executions, Yunnan was an early adopter of death penalty reform. In 1997 its provincial capital, Kunming, was the first Chinese city to start using lethal injection. (HIV concerns were pivotal because traditional gunshot executions caused blood spattering that could lead to infection.)

The cases of Li, Yao, and Sai demonstrate that Yunnan continued its commitment to death penalty reform through judicial activism that was not occurring in other provinces. In 2008 the Supreme People’s Court (SPC) approved 92.5 percent of death penalty cases submitted by the Yunnan High People’s Court, three percentage points higher than the national average, according to court President Xu Qianfei. Pressure from vocal retributive-justice supporters did cause the court to explain its actions. But the quickness of the court to reverse its stance and hold a retrial seems more characteristic of orders from above than criticism from below.

In 2007 the SPC regained the sole authority to review capital cases, after which the number of death sentences with immediate execution fell below the number of death sentences with reprieve. According to Regulations Governing Issues in the Review of Death Penalty Cases by the Supreme People’s Court, issued on February 27, 2007, the lower court’s decision to execute should be approved during SPC review if “the determination of facts and application of the law … are deemed to have been correct, the penalty appropriate, and the legal proceedings in accordance with the law” (emphasis added).

“Inappropriate penalty” is the reason both the Yunnan People’s Procuratorate and Yunnan High People’s Court gave for recommending and ultimately conducting a retrial. Both stated that the facts, evidence, and procedures were clear and correct. The language and current judicial hierarchy suggest that intervention may have occurred on the level of the Supreme People’s Court. That said, there is conflicting information on whether death with two-year reprieve falls under the scope of SPC review. In the case of Li Changkui, media reports do not mention that the Yunnan High People’s Court had submitted its initial verdict for review. In an August 22 report on the retrial, however, Xinhua states prominently that the reinstated death sentence is pending SPC approval.

“Abolishing the death penalty … is a good legal ideal that needs to be determined at the national level, it cannot be determined by a court verdict,” Deng Zibin, Deputy Director of the Criminal Law Department of the China Academy of Social Sciences’ Legal Studies Center, told Southern Weekly.

Deng implies that wider-reaching national directives could come on the coattails of this case, but obstacles exist. Writing about the problems faced by SPC review in 2008, the vice-director of the Research Office of the Supreme People’s Court highlighted that 1) “there are strong demands by relevant bodies and personnel to intervene in death penalty review procedures,” and 2) “if there is a rise in extremely violent crime and public calls for more frequent use of the death penalty strengthen, there will be tremendous pressure that will affect whether restriction of the death penalty can be maintained.”

What’s clear is that both the Supreme People’s Court and the Yunnan High People’s Court are advocates for death penalty reform, but that popular opinion and a desire for national uniformity are standing in the way of both transparency and the right to life.