Chinese Officials Struggle to Counter Juvenile Crime Without Relying on Harsh Punishment

A juvenile judge in Anhui speaks with young offenders. Photo Credit: Guoyang County Court

At a press conference in May, the Supreme People’s Procuratorate (SPP) announced that nearly 30 percent of juvenile arrests and over eight percent of juvenile indictments in China were not approved in 2015, compared with 18 percent and five percent in 2012 (see chart below). Between 2003-2015, 14.8% of 1.08 million individual juvenile arrests were rejected, as were 4.4% of the 1.13 million individual indictments.

Avoiding harsh measures against juveniles reflects a changing legal framework since a separate juvenile justice section was included in the amended Criminal Procedure Law (CPL), effective since 2013. In the years following the CPL amendments, Chinese courts have emphasized the importance of an independent and standardized juvenile justice system, with an “education first” approach that features practices like mentoring and criminal record sealing.

In addition to lower rates of arrest and indictment, non-custodial measures are a major part of this approach. In 2015, Chinese courts handed down non-custodial (fei jianjin xing) or punishment exemption (mianyu xingshi chufa) measures to 48 percent of juvenile defendants. These non-custodial figures compare to 41.75 percent of defendants in 2012, as reported by the Supreme People’s Court Research Office, and 35.56 percent of defendants in 2010, according to the official compendium China Juvenile Justice (Zhongguo shaonian sifa). SPP measures on juveniles claim that this approach is designed to embody an “educational, corrective, and protective” approach.

Prosecution of Juveniles in China, 2012-2015

Sources: SPP; Dui Hua

Rising Violence Among China’s Youth

The use of non-custodial juvenile justice measures is not without its obstacles. Although it appears that juvenile crime in China has fallen overall during the past 10 years, violent crime committed by juveniles has continued to rise, offenders are getting younger, and gangs are more prevalent. According to Wang Wei, Deputy Chief of the Shanxi Province People’s Procuratorate Juvenile Division, juvenile offenders younger than 15 are increasingly common. Many procurators and scholars, Wang Wei among them, also believe that family troubles, especially social problems of “left behind children” and migrant youth, contribute substantially to these new trends in juvenile crime. Data from China’s most recent (2010) census show that over 60 million children were left behind in their rural hometowns as their parents became migrant workers in more urban areas. These children represent just under two-fifths of China’s rural child population and over one-fifth of the total child population. A report sponsored by Beijing Normal University and UNICEF concluded that left behind children are over 70% more likely to offend than other children with similar characteristics.

In July and August of 2016, provinces including Hubei and Shanxi introduced legislation and other changes to the judicial system intended to protect this at-risk population, and provinces with similarly high populations of migrants and left-behind children may well follow suit. Although increased attention towards providing more social services and monitoring to these young offenders is commendable, the disproportionate conviction rates and other persistent inequities faced by migrants and their children could indicate difficulty finding long-term, sustainable solutions for the increasing proportion of juvenile crime that is young, violent, and gang-related.

Juvenile Offenders and Media Control

Included among the responses of Chinese authorities to these broader trends in juvenile crime and justice administration are new requirements that limit the scope of juvenile crime reporting. In mid-2015, the State Internet Information Office (SIIO) promulgated a “Notice on Further Strengthening Management of Online Reporting of Juvenile Crime and Bullying Incidents,” which had followed sensationalist online reporting on upticks in serious juvenile crime. The notice lists several requirements, including that “websites shall not place reporting of juvenile crimes […] on their homepages or news channel headlines and shall not suggest related content in blogs, microblogs, forums, postings, pop-ups, navigation bars, search engines, or other such positions." Non-compliant outlets face “formal censure meetings, warnings, fines and other disposition methods, including revocation of website news service credentials, [which] may be imposed, according to the law[.]”

Unsurprisingly, major news outlets such as Xinhua and Legal Daily seem to have largely complied with the notice, removing their customary, “related content” sidebars for reports on juvenile delinquency, and they have also deleted many suggested search terms related to juvenile offending from drop-down menus. When the notice was introduced a year ago, commentators noted that its intent was to stem public fears of a juvenile violence epidemic, emphasizing that the protection of children’s privacy and dignity is paramount; however, the rules might have a pernicious side effect--silencing productive discussion on juvenile crime and infringing the public’s right to know.

A year later, the unintended effects seem to have dominated. Judging from aggregate data, the notice has had no discernable effects on either media mentions or public interest in juvenile crime, whereas it has limited access to objective reporting on the topic. Given that procuratorial officials like Wang Wei have recognized juvenile crime as a social and a legal problem, the SIIO’s restrictions go too far in limiting the discussion of potential solutions to the complex difficulties facing youth in conflict with the law.

Will China Retry Gao Qinrong in Light of Anti-Corruption Campaign?

Gao Qinrong. Photo credit: bbc.com

The case of Gao Qinrong harkens back to the earliest days of The Dui Hua Foundation, when his name was featured on many prisoner lists ahead of his early release in 2006. Ten years later, Gao is back in the news with a chance at a retrial that could clear his name.

Gao, a former investigative reporter for the Xinhua News Agency based in Shanxi Province, was sentenced in 1999 to 12 years in prison for taking bribes, soliciting prostitution, and fraud. He has long alleged that he was framed by local officials in the city of Yuncheng in retaliation for his exposure of a corrupt irrigation project. Gao sent hundreds of appeal petitions to central and provincial authorities during his eight years in prison, but he never received a reply. Some even speculated that Gao’s letters might have been intercepted before they ever reached their intended recipients.

Gao was released in December 2006 after several sentence reductions and was immediately greeted with sympathetic reports and interviews by some of southern China’s bolder news outlets—despite an apparent ban on reporting in Beijing. He continued to proclaim his innocence and petitioned for judicial authorities to reopen his case. Now, there is word that the Yuncheng Intermediate People’s Court has accepted his petition.

It remains to be seen, however, whether Gao will get that new day in court. As Dui Hua recently wrote, China’s post-conviction appeal mechanism is not clearly defined under the Criminal Procedure Law, and courts have considerable discretion over reopening cases (and often little incentive to do so).

A combination of factors connected with Xi Jinping’s assumption of power in 2012 may work in Gao Qinrong’s favor. Xi’s high-profile anti-corruption drive has brought down many current and former officials in coal-rich Shanxi, which appears to have been a particular target of the campaign. Officials with powerful backing have fallen in Yuncheng as well, possibly creating opportunities to revisit evidence of past corruption—including possible retaliation against Gao.

Righting past wrongful convictions has been another theme of Xi Jinping’s administration. But, as noted by a recent Southern Metropolis Daily editorial (translated below), many of these overturned cases have involved death sentences or life imprisonment. The editorial echoes the call of leading Chinese legal scholars for a more formal post-conviction relief system that would make it easier to get cases of all types reviewed. It also points to something that positive coverage of recent retrials fails to acknowledge: given the systemic causes that have contributed to miscarriages of justice in the past, China needs to do much more than reopen a few selected high-profile cases.

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Gao Qinrong’s Post-Conviction Appeal: Correcting Judicial Errors Should Address More Than Just Life-and-Death Cases

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Southern Metropolis Daily editorial, July 29, 2016

Jiemian News recently reported a new development in the case of reporter Gao Qinrong, whose story created quite a stir years ago. After 18 years of petitioning to have his case reopened, Gao Qinrong has had his post-conviction appeal petition accepted by Shanxi’s Yuncheng Intermediate People’s Court: “The case has been reported up the chain of command and is slated for review…The adjudication committee has to discuss whether to initiate a new trial or reject the appeal.”

The court’s acceptance of Gao’s petition is a procedural development with next to no legal meaning. But to someone who has been unsuccessfully seeking an appeal for 18 years, this change can be seen as an exceptional, perhaps even hopeful, development.

Gao Qinrong was a reporter for Reporter’s Notes magazine, published out of the Xinhua News Service’s Shanxi bureau. In the 1990s, he exposed shocking details of a scandal involving “fake irrigation projects” in Yuncheng, Shanxi. The story was followed up by CCTV’s “Focus” newsmagazine program and Southern Weekly, and “disciplinary actions” were taken against several local officials.

Then, in December 1998 Gao Qinrong was arrested and subsequently sentenced to 12 years’ imprisonment for taking bribes, soliciting prostitution, and fraud. On December 7, 2006, having lost eight years and four days of freedom, Gao Qinrong left prison insisting that his imprisonment had been an act of “retaliation.” Even in prison, Gao never gave up the effort to petition for post-conviction appeal, and several delegates to the National People’s Congress and Chinese People’s Political Consultative Conference put resolutions forward on his behalf. There was media reporting at the time of Gao’s release from prison, with an editorial in Southern Metropolis Daily calling for “truth in support of the right to speak truth.” Now, a decade later, we find that Gao Qinrong’s effort to reopen his case has been unusually difficult and progress has been slow.

From today’s vantage point, there are still quite a few things that are strange about the circumstances of Gao’s case and uncertainties about the evidence that was brought against him. According to the lawyer handling Gao’s post-conviction appeal: “The evidence used to convict was unreliable and insufficient, and there were contradictions between the main pieces of evidence used to prove the facts in the case.” Key pieces of evidence were never cross-examined in court, and signatures on transcripts of witness testimony are suspected to be forgeries.

Besides these doubts about the circumstances and evidence, it’s still worth looking into the question of whether Gao’s case had any relation to his exposure of how local government spent hundreds of millions of yuan on “fake irrigation projects.” When the man who tipped Gao off about the projects was released from prison, he was beaten nearly to death less than 100 meters from the prison gate and is still unable to care for himself to this day. The special team investigating Gao Qinrong focused a great deal of its questioning on his source for the “fake irrigation” report, rather than the three crimes for which he was subsequently charged. Li Xiaolin, who served as Gao Qinrong’s defense attorney, recalls: “They dug up some things from years earlier that didn’t amount to crimes and had never been the subject of any police report.” And they really started digging, he recalls, after Gao “uncovered and was the first of many media to report on fake projects that had cost the prefecture 270 million yuan.”

Doubts about this particular case haven’t dimmed after 18 years. Neither have they been answered. The embarrassment surrounding Gao Qinrong’s case is not an isolated incident. So many miscarriages of justice that were eventually corrected were once mired in this same sort of procedural despair: one of the parties in a criminal case appeals over many years, making repeated claims but failing to make “effective progress” by getting procedurally significant review of his or her case. When it comes to miscarriages of justice, rectification or exoneration has become, to a great degree, an “unexpected moment of joy”—no one has any idea when or if it will ever come.

It’s obvious that this is not the way that rule of law is supposed to work. Criminal procedure scholar Chen Weidong has proposed reforms based on changes to the case-filing system that require courts to accept cases as long as they meet certain technical requirements. The idea is that, by putting all post-conviction appeal petitions under a formal review procedure, the process would become more litigation-based and procedural and make correction of judicial errors more transparent and predictable. In other words, it would be an attempt to prevent this “late-arriving justice” from being purely a matter of luck.

The latest round of judicial reforms has brought with it correction of judicial errors in a number of cases. From these cases, the public might get the impression that major criminal cases are being overturned all the time. But a conclusion that is consistent with judicial logic should recognize that errors occur not only in major life-and-death cases. There must also be a certain percentage of wrongly decided cases that are not so life-and-death but have similar implications for the guilt or innocence of citizens and the line between criminal behavior and non-criminal behavior.

If you consider the imprint that social and judicial standards have left on individual cases during certain periods, wouldn’t you expect there to be similarity between major and minor cases in terms of the rate of judicial error and the particular experiences of procedural injustice on citizens? Does extraction of confessions through torture and falsification of evidence only take place in cases where there’s been loss of life but somehow vanish entirely in other cases? Not all miscarriages of justice involve such life-and-death cases, so when it comes to correcting judicial errors, normal judicial logic dictates that you should correct all errors, both major and minor.

Rectifying errors in the judicial system is part of the process of seeking justice—an extremely important part. In this area, there should be no differences in the way that major cases and minor cases are handled. The process of correcting errors should look at the judicial errors in a particular case and not base the urgency or degree of rectification on the severity of the original verdict in that case.

The post-conviction appeal process in cases like Gao Qinrong’s, with its long years of petitioning without initiation of any substantive judicial review procedure, is a good example of why there is urgent need for legal reform to the system of post-conviction relief. As more and more old cases from the past are corrected and the system of correcting judicial errors starts to become more routine and institutionalized, there is one question we must take seriously: can post-conviction appeals by citizens in non-life-and-death cases receive the same sort of timely, fair, and indisputable justice from our legal system?

Cross-Province Wage Dispute Leads to Protests, Detentions

A protesting worker holds a sign demanding the payment of wages. Source: news.jstv.com

As China’s economic boom has waned, the longstanding problem of non-payment, delayed payment, or partial payment of wages has intensified. The resulting labor disputes increase social instability, demands on government, and pressures on judicial authorities. A recent dispute concerning back pay to rural miners offers a cautionary lesson that can inform the responses of Chinese authorities to this challenge.

Iron Miners in Hebei Protest, Demand Backpay

In October 2012, labor contractors Chen Shouyan and Wei Luntian arranged for more than 100 rural laborers from Lan’gao County, Shaanxi Province, to travel over 2,000 km to work in an iron mine run by Jiangcheng Mining Company in Qinglong County, Hebei Province. By June 2013, however, the mining company had reportedly stopped paying the workers, an apparent violation of their labor contracts.

Chen and Wei were forced to borrow money just to pay workers a basic monthly living wage, approximately 1,000 yuan ($150 USD). In May 2015, money ran out entirely, and angry miners attacked Chen and Wei, trashing their office.

On June 28, 2015, Chen and Wei led more than 180 miners, many from Lan'gao County, to deliver a petition outside the Qinglong County government offices. County officials met with representatives of the miners and the mining company and calculated that the workers were owed nearly 15 million yuan ($2.3 million USD) in back wages. The mining company responded that the miners had not been paid because they failed to deliver according to the contract. Discussions ended in stalemate.

On July 3, 2015, Chen and Wei again led more than 100 miners to demonstrate outside Qinglong County government offices and demand that the county head step in to resolve the wage dispute. Police dispatched to the scene reportedly used tear gas and detained approximately 20 protesters. Of these, Chen, Wei, and four others were placed under criminal detention for gathering a crowd to disrupt social order.

For reasons that are not entirely clear, prosecutors tried the six defendants in two separate trials. In January 2016, Chen and another defendant were sentenced by the Qinglong County People’s Court to four years and 3-1/2 years in prison, respectively, while two other defendants received suspended sentences. Three of the four defendants appealed, resulting in a trial of second instance in May 2016. At it happened, the trial of Wei and a co-defendant was also getting underway at this time.

Tensions Arise Between County Officials in Hebei and Shaanxi

Meanwhile, officials back in Lan’gao County had become aware of the dispute, believed that the miners’ claims were reasonable, and formed a special work team of county officials to look into the case. As a poor county located in a region that “exports” more than a third of its labor force, officials in Lan’gao were familiar with receiving petitions about wage arrears and other labor disputes. Led by Nie Bin, an official from the judicial administration bureau, the team traveled to Qinglong County five times in attempts to sit down with Qinglong officials to discuss the case. Each time, however, their mission was rebuffed.

Finally, the Lan’gao work team returned to Qinglong in May to observe the two trials. They brought four witnesses whose testimony had been used by the prosecution in Chen’s trial, despite the fact that their testimony had been given under the watchful eye of a Jiangcheng Mining official. Two of the witnesses appeared at Wei’s trial to recant their testimony. They were then taken into custody and charged with making false statements, preventing them from appearing in court to recant a second time in Chen’s appeal. This act compounded the tension between officials from the two counties, escalating the dispute.

Details of the case were first reported in the Chinese media in early June, around the time that the appeals court vacated the verdict against Chen and the others and remanded the case for retrial. Media attention and public outcry over the handling of the case pushed the Lan’gao and Qinglong officials to work towards paying the miners years of delinquent back wages.

Prospects for these miners, however, remain unclear. Construction booms used to mean high demand for steel and heavy investment in the iron mines of Qinglong County. Now many of these mines are shuttered and a large number of companies have been unable to pay miners their wages.

Perhaps in recognition that similar disputes will likely proliferate, Beijing Times columnist “Binglin” recently warned local government officials against too hastily resorting to criminal measures in dealing with protesting workers.

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“Use Caution with Criminal Measures against Wage Arrears Protests” (translated excerpt)

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Beijing Times, June 16, 2016

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Rule by law is an important path for modern governance, but rule by law is not the same as criminal justice, and its methods do not entail the indiscriminate use of criminal measures. Local governments must realize that it is difficult to avoid some radical behavior on the part of rural laborers who are owed many years of back wages. The reasonable way to deal with them is to carry out proactive communication and negotiation in accordance with the law and come to some kind of agreement. If protesting workers engage in unlawful behavior, this must be dealt with appropriately within the scope of rule by law. But you cannot simply treat the situation as a criminal matter and be so cavalier about using the “means of last resort” to handle things.

When rural laborers seeking payment of back wages make petitions outside government offices, it is quite possible that they might block the entrance to those offices, tie up traffic, or have a negative effect on work. For those who violate the law, it may thus be necessary to use appropriate coercive measures or punishments in accordance with the law. However, before deciding that this sort of unlawful behavior constitutes the criminal offense of “gathering a crowd to disrupt social order,” you must first consider the criminal law principle of proportionality and make a careful judgment. In applying the law, you must pay particular attention to the distinction between criminal behavior and violations of public order management, giving consideration to the subjective intent of the person who has committed the unlawful act. If the circumstances are not grave and no serious damage has been done, the act should be treated as a public-order offense and be punished accordingly.

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Please click here to read the full article in Mandarin.