China Could Find Lessons From the Fifty States for Reducing Recidivism of Women Offenders (Part II of II)

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Read part 1 of this article here.

When Objectives are Clear, Non-Custodial Measures are More Effective

In addition to the charts and statistics presented above, several recent empirical studies support the claim that targeted non-custodial treatment programs can help reduce the number of women in prison by limiting recidivism among women offenders. In California, a study carried out by researchers at UCLA found that among 1,182 women who participated in a community-based aftercare program (which included residential drug abuse treatment for 6 to 15 months, comprehensive case management, vocational assistance, and parenting and health-related services), those who completed the aftercare program were 36 percent less likely to return to prison compared with those who did not complete the treatment program. These results are summarized in Figure 4 below:

Figure 4. Results of UCLA Study

Source: The National Institute of Corrections.

In a different study from 2006, funded by the National Institute of Justice, researchers found that drug offenses often lead to repeat arrests for women and recommended “enhanced substance abuse treatment in prison and in the community” to combat recidivism. Because women tend to be non-violent offenders, the researchers also recommended that re-entry and parole should emphasize the delivery of treatment and services rather than surveillance.

The state of Oklahoma, as seen in Figure 2, features the worst record among the US states of keeping women out of prison. Surprisingly, an alternative to the prison program in Tulsa, a city in Oklahoma, called Women in Recovery has produced tangible results that demonstrate the effectiveness of non-custodial measures, even when the broader locality lacks a systematic approach to reducing recidivism. The recidivism rate for women who complete the Women in Recovery diversion program in Tulsa is only 4.9 percent; the rate for all of Oklahoma is almost three times higher. Not unexpectedly, the Tulsa Women in Recovery program addresses the underlying issues leading to the incarceration of women, including sexual and physical abuse, family separation, mental health problems, substance abuse, and employment readiness.

Difficulties of Implementing Non-Custodial Measures

Although the research and data shown above support the idea that non-custodial measures for women help to reduce recidivism, there are several challenges to the successful implementation of these alternatives to incarceration. In Massachusetts, for example, low numbers of women and girls are incarcerated and a wide variety of specialized alternatives to incarceration are available, with many of these programs demonstrating that they reduce short and long-term costs. Nonetheless, public funding for these programs remains unstable.

Alternative custody programs can also be slowed by bureaucratic red tape. In California, alternative custody programs help women transition out of prison life, but the program’s application process is daunting—the Department of Corrections and Rehabilitation can take anywhere from six months to a year to make a decision. State officials can also have trouble convincing women to participate in alternatives to incarceration, a problem evident in the UCLA study mentioned above—even though the program reduced recidivism and proved effective, only about one-third of women participated (again see Figure 4).

Fortunately, some states continue working to improve non-custodial measures. The Wellesley Centers for Women finds that while funding for diversion programs in Massachusetts can be unstable, other programs that feature “intermediate sanctions” and “accountability for participants’ substance use and program attendance” have proven more resilient. Further, states can become more proactive when mandated to do so, for instance, diversion programs in California began to open more quickly to comply with a court order to expand alternative to custody programs, which stemmed from a wider national effort to reduce prison overcrowding.

Can Lessons from the Fifty States Address China’s Rising Population of Women Prisoners?

The experiences of several American states show that non-custodial measures can reduce recidivism of women offenders, thereby helping to lower the number of women in prison. This lesson could be useful for China, which is dealing with its own rapidly rising prison population. As Dui Hua has pointed out, as of mid-2015, China had more than 107,000 women in prison, up 3.2 percent from the previous year, and up more than 50 percent since 2003. On the non-mainland Chinese localities of Hong Kong and Macau, the issue of women in prison is also a major problem—the World Prison Brief has noted that the proportion of women in prison in special administrative regions of China such as Hong Kong (19.4 percent) and Macau (21 percent) are the largest in the world.

Although it is important to consider the many differences between the US and China, there are some similarities that show how the experience of the US states can be helpful for Chinese officials. Research has shown that, like the experiences of many US states, women prisoners in China suffer from mental health disorders, frayed contacts with the outside world, and drug-related arrests. Chinese prisons routinely limit women prisoners’ contact with the outside world, which can exacerbate psychological distress, disconnect from family, and lack of a support structure upon release from prison; a large majority (86 percent) of Chinese women prisoners are in prison for nonviolent crimes, nearly half of which are drug related.

These similarities suggest that there are valuable lessons that many jurisdictions, including China, could study to limit the number of women in prison. The statistics, tables, and empirical research cited above show that targeted non-custodial measures that include mental health treatment, addiction recovery, and family support can benefit society and reduce public costs by reducing recidivism (up to 36 percent, according to the UCLA study). The similar characteristics of women in prison across countries and the positive results in several US states indicate that addressing the underlying causes of incarceration among women might prove effective in limiting incarceration in China.

China Could Find Lessons From the Fifty States for Reducing Recidivism of Women Offenders (Part I of II)

Image Credit: Getty Images.

In countries across the world, punitive policies are contributing to serious prison overcrowding issues, with many national prison systems holding more than double their official capacity. And what’s more is that the number of women in prison is growing at a faster rate than men.

Part of the problem is incarceration itself: instead of deterring repeat offenses, prisons act as ‘schools of crime’ that increase the likelihood of women prisoners to re-offend. Prisons function to isolate offenders from their family support networks, reduce job skills, and harm the mental health of offenders. By contrast, non-custodial measures have routinely proven to prevent recidivism and lower the number of women in prison. In 2010, the United Nations issued The Bangkok Rules, which advocates for non-custodial measures for women prisoners partly because of this interrelation between prisons and recidivism : “The failure of imprisonment to address the underlying factors leading to offending behavior by women is reflected in the increasing rate of re-offending among women in some countries.”

Substance abuse and mental health disorders are among the primary factors leading to the incarceration of women. To give just one example, The Greenhope Services for Women, an organization based in New York that provides substance abuse and mental health treatment to women offenders reported that 100% of its service users suffered from substance abuse and 70% from mental health related trauma. In addition to substance abuse and mental illness, other factors that contribute to re-offending and rising rates of women in prison include homelessness, unemployment, and loss of family support structure.

Implementation of Non-Custodial Measures for Women Offenders in US States

With the realization that prisons often serve to reinforce criminality rather than treat it, several states across the US have implemented non-custodial measures to limit the public cost of recidivism by addressing the root causes of female incarceration. Alternatives to custody include jail diversion, work release, electronic monitoring, fines, community service orders, substance abuse and mental health treatment, family reunification, and housing assistance. In general, non-custodial measures can be flexibly administered before an offender is placed in jail, before placement in prison, or after serving some time in prison.

Dui Hua researched the alternatives to custody available to women offenders across different US states. Figure 1 is a non-exhaustive summary of the different non-custodial measures that are implemented at the state level or below in the US:

Figure 1. Selected Non-custodial Measures for Women in Prison in US States

Type of Non-Custodial measure	What Stage is the Non-Custodial Measure used?	Non-Custodial Programs Can Include the Following Features	States in which measures have been utilized (non-exhaustive)
Jail diversion/furlough, including for pregnant women; substance abuse and mental health treatment	Pre-custody	Officials including local police help identify mental illness or substance abuse issues in suspected offenders and provide treatment instead of incarceration.	MA, NY, OK (Tulsa), NC, NY, IL
"Intermediate" sanctions	Pre-custody	Substance abuse programs offer "accountability"/harsher sanctions if substance abuse treatment/attendance goals are not met.	MA
Home detention/electronic monitoring	Pre-custody	Instead of prison, offenders serve sentences in specific residential locations, but offenders are required to submit to monitoring by electronic or GPS devices.	CA
Gender-specific program	Pre-custody	Specific "women’s track" programming aims for a gender and culturally responsive approach to women offenders.	MA
Work release	Pre-prison (i.e., in-jail)	Offenders are allowed to leave custody for specified periods of time to work or perform community service.	CA
Mental health treatment	Post-prison	Programs offer comprehensive residential treatment, day treatment, or outpatient programs; non-profit organizations can act as service providers.	NY, CA, CO
Substance abuse treatment	Post-prison	Programs designed to assist women offenders who have ongoing struggles with addiction.	NY, CA, PA, WI, CO, AL, AZ, MI, NJ
Employment coaching/job training	Post-prison	Programs aim to prepare candidates for job interviews and employment; non-profit organizations can act as service providers	NY, WY, PA, KS, IL, WY
Early release for prisoners, with family reunification	Post-prison	Residential programs designed to help prisoners serve limited portions of prison sentences in a non-prison residential facility; children of offenders allowed to live with their mothers.	CA, MA
Housing assistance	Post-prison	Programs help released offenders find safe and affordable housing; non-profit organizations can act as service providers.	NY, PA, KS, MO, IL, MD
Broad re-entry to society	Post-prison	Programs do not specialize in particular areas, instead providing general assistance to women recently released from prison.	MI, MD, IL, MN, TX, NY, PA, VT, CA, NY, FL, NY, AZ, NC, MO, RI

Sources: National Institute of Corrections; The Wellesley Centers for Women; Greenhope Services for Women; Women’s Prison Association; The New York Times

This analysis, in combination with data on women and girls collected by The Sentencing Project, suggest that non-custodial programs tend to offer greater services, at various stages of women’s conflict with the law, and in states that have done a better job of keeping women out of prison. In states like Massachusetts, for example, the emphasis on non-custodial measures appears to contribute to its low rate of incarceration—only 15 per 100,000 women are imprisoned. For context, the average rate of women in prison across all US states is 58 per 100,000, and the state with the highest rate, Oklahoma, incarcerates 142 out of every 100,000 women. The rate of incarceration for women across US states by The Sentencing Project, as of 2014, is provided in Figure 2:

Figure 2. Highest and Lowest Female State Sentencing Rates (per 100,000), 2014.

Source: The Sentencing Project.

In addition to the benefits of applying a gendered perspective to incarceration, a youth perspective also yields a better understanding of the benefits of using non-custodial measures. Similar to the variation in the treatment of women offenders throughout the US, there is large variation among US states regarding the treatment of girls in conflict with the law. The national rate of incarceration for female juvenile delinquents is 50 per 100,000; in Wyoming, 209 girls are incarcerated per 100,000; by contrast, in Massachusetts, only 10 per 100,000 are incarcerated.Figure 3 presents rates of incarceration of women prisoners for the top five and bottom five states, by rates of their confinement of girls.

Figure 3. Highest and Lowest State Rates of Confinement for female juvenile prisoners (per 100,000), 2013.

Source: The Sentencing Project.

Policymakers in different countries could do well to examine the reasons why certain US states have been successful in limiting the rate of girls in confinement. [1] A recent US Department of Justice report recommends that girls in conflict with the law should be kept in the least-restrictive settings possible, mainly because “serving youth in community-based environments can reduce additional justice system involvement, lead to positive outcomes for the youth, and reduce system costs.” This advice might be particularly useful for legal reformers in China, where the juvenile corrections system has yet to create regulations or stable models for community corrections institutions aimed at reducing the number of girls in confinement. Ultimately, the recommendations are similar for both girls and women in conflict with the law: non-restrictive settings should address the underlying factors contributing to criminal activity—especially mental health, substance abuse, family support, and vocational training.

Continue reading part II of this article here.

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1. The age limit for juvenile residential facilities in the US depends on state laws, however the approximate age range cited by the researchers in Figure 3 is from 12 to 18 years old. Source: The Sentencing Project.   Return to Article

Wrongful Conviction for Counterrevolutionary Incitement Resurfaces

After the Cultural Revolution, workers at Shanghai No. 1 Textile Factory gathered to denounce the crimes of the "Gang of Four." Image credit: zgdsw.org.cn

When China emerged from the Cultural Revolution and set off on its path of “reform and opening," the country’s judicial system was enlisted to address many of the politically motivated judgments that had been handed down during the Mao era. Courts throughout the country overturned verdicts against former “counterrevolutionaries,” clearing away their status as “enemies of the people.”

This effort took place as China worked to rebuild its shattered legal institutions and put a new legal framework in place that would help to reduce some of the arbitrariness and injustice that had characterized the preceding era. Notably, a new Criminal Law and Criminal Procedure Law took effect on January 1, 1980. Counterrevolutionary crime continued to be punished, but punishment would henceforth be handed down in accordance with laws and would follow prescribed legal procedures.

Of course, not everyone could benefit from the political rehabilitation of past political crimes. Those associated with the “Gang of Four,” pinned with blame for the violence and destruction of the Cultural Revolution and deemed to oppose the Communist Party of China and its leaders, were among the first "counterrevolutionaries" sentenced in accordance with the new laws. It didn’t matter much that most of them had been sitting in jail for years without access to any legal counsel or even anticipation of any formal legal proceeding. And though the courts that handed down judgments were now technically bound to do so “in accordance with the law,” the law was still primarily an instrument of the state’s political power that offered defendants little as far as protection of their rights was concerned.

Lingering Stigma: Counterrevolutionary Incitement

Concern for wrongful convictions and miscarriages of justice might lead one to take another look at some of these cases from the early 1980s. One example of residual injustice from this period recently came to light via Liu Xiaoyuan, a Beijing-based criminal defense lawyer who has been actively involved in rights-protection cases. Liu recently blogged about being contacted by an 80-year-old man from Henan who has spent most of the past four decades trying to get his elder brother’s 1980 conviction for “counterrevolutionary incitement” overturned.

Ren Ruixiang (任瑞祥) was 17 years old when the People’s Republic of China was founded in 1949. Though he came from a “rich peasant” background, his middle-school education made him a valuable asset for building a “New China.” He served as a local government cadre in the city of Luoyang and joined the Communist Youth League.

But Ren’s “bad class background” would eventually catch up with him. In 1959, in the fevered final months of the Anti-Rightist Movement, he was accused of having concealed his membership in a Nationalist Party youth organization and stripped of his position. Most likely he was also sent for re-education. He would eventually be transferred to Mianchi County, where he spent the tumultuous years of the Cultural Revolution labelled as a “bad element.”

At the end of the Cultural Revolution, local authorities accused Ren of having been a follower of the “Gang of Four” and sent him for compulsory “re-education” in what was euphemistically known as a “study session” (xuexi ban). During his time there, in December 1977, Ren allegedly jotted down a short piece of counterrevolutionary verse in a notebook and then shouted it aloud. The verse read:

"China’s troubles aren’t through—
Bandit Hua* has risen again!
My fellow Chinese brothers—
You must eliminate Bandit Hua!"

Ren was arrested and sent to the county detention center in January 1978, where he was alleged to have continued shouting counterrevolutionary slogans calling for the ouster of central party leaders, including Hua Guofeng, Ye Jianying, and Deng Xiaoping. China’s procuratorate system had not yet been restored after the Cultural Revolution, so the county public security authorities sent the case to the local court for prosecution the following month. But no trial was held and Ren spent the next two years in a detention center.

At the time, China had few trained legal professionals. Therefore, it's surprising to learn that Ren Ruixiang was able to be represented by a defense lawyer named Bo Xiping. When Bo went to meet with his client at the detention center, he found his behavior odd and reported this to the court. As a result, the court arranged for Ren Ruixiang to be evaluated by the Kaifeng Psychiatric Hospital. The hospital’s assessment report stated that Ren Ruixiang’s mental state was fine and that he had been feigning illness to avoid criminal responsibility.

Imprisonment & Release

China’s new Criminal Law and Criminal Procedure Law took effect just days after the completion of Ren’s psychiatric evaluation. The Mianchi County People’s Court proceeded to find Ren Ruixiang guilty of “counterrevolutionary incitement” and sentenced him to seven years in prison. According to Ren’s brother, however, the court held no trial hearing and did not notify the defense lawyer of Ren’s conviction. By the time anyone knew what had happened, the deadline for appeal had already passed.

Ren was sent to a “reform through labor” camp at a glue factory in the city of Jiaozuo. Doubts about his mental state persisted, and family members again called upon Bo Xiping to file a petition for post-conviction relief. Bo also met with Ren Ruixiang and was shocked to hear the detainee insist that he “spoke with Chairman Mao every night.”

Bo reviewed Ren’s medical file at the Kaifeng Psychiatric Hospital and found in the entrusted letter that the court had sent the hospital several statements detailing Ren’s past and his alleged “counterrevolutionary speech”. Bo considered the court’s behavior to be prejudicial and noted that the hospital had not employed modern diagnostic tests, such as an EEG, in assessing whether Ren was mentally ill and instead conducted only blood and urine tests.

By this time Bo had become a senior legal figure in the province, and doubts about the case had begun to reach other senior provincial and central officials. In 1983, the Jiaozuo People’s Procuratorate arranged for Ren Ruixiang to undergo another psychiatric evaluation at the provincial psychiatric hospital in Xinxiang. This time, doctors performed an EEG and found abnormalities in his frontal cortex. They also reported that Ren Ruixiang frequently suffered from auditory hallucinations in which voices told him to say or do certain things. They diagnosed Ren as suffering from paranoid schizophrenia, and he was soon released on medical parole.

Erasing Stigma

Of course, Ren Ruixiang’s release is not the end of the story. His brother told Liu Xiaoyuan that the family’s limited resources meant that Ren was never able to receive the medical treatment needed for his illness. He has spent most of the past four decades unsuccessfully trying to clear his brother's name. Now at the age of 85, Ren’s mental illness is unaddressed and the stigma of his conviction for “counterrevolution” remains.

In the early days of “reform and opening”, courts across the nation overturned a number of counterrevolution cases handed down at a time when China’s criminal justice system did not operate under the boundaries of law. Ren's case was decided after the Gang of Four was purged from leadership and his "reactionary" verse was cited as evidence of him being a remnant of the cadre population. The highly political nature of the case barred him from exoneration, or pingfan, that allowed many of the former "counterrevolutionaries" to escape stigma.

There was no hope of a legal remedy until February 2012 when the Sanmenxia Intermediate People's Court offered to pay Ren monthly subsidies so long as his family acknowledged his involvement with the Gang. Ren's brother nevertheless rejected the offer and insists that Ren should never have been criminally responsible as he became mentally ill during his incarceration in the “study session” back in 1977. The family continued to file petitions until 2011, but the Mianchi County People’s Court formally rejected the family’s petition and upheld its original findings and the psychiatric assessment that Ren was “mentally sound” at the time of committing the crimes and had “feigned illness.”

Setting aside the question of Ren Ruixiang’s mental illness, as Liu Xiaoyuan points out there are several substantive and procedural issues that arise because of the way that Ren’s case straddles a moment in history when Chinese criminal justice began to be implemented “in accordance with the law.” On the substantive side, it is unclear whether Ren’s statements against central government leaders amounted to “incitement to overthrow the dictatorship of the proletariat and the socialist system,” the standard under the Criminal Law at the time. And given the restrictive space (a “re-education” class) and the limited audience that heard Ren’s comments, the decision to classify his speech as a “serious offense” appears arbitrary. These objections about the arbitrary and harsh criminalization of political speech in China persist to the current day, however, as “counterrevolutionary incitement” is replaced with "inciting subversion" and "inciting splittism," both crimes of “endangering state security.”

Ren’s trial also seems to have violated several procedural protections that should have come into force with the new legal provisions. Under the Criminal Law, Ren’s case should have been handled by an intermediate court and not by the Mianchi County People’s Court. (In the county court’s 2011 appeal decision, it states that the Luoyang Prefecture Intermediate Court had granted it jurisdiction to try the case on its behalf, but no mention of this was made in the original court document.) The case should have been tried in open court, with Ren Ruixiang’s lawyer there to represent him. And by 1980 the prosecution should have been handled by the county procuratorate, but the record only shows that the case had been sent for prosecution by the county public security bureau.

Double Standard

There was nothing magical about the “legalization” of criminal justice in 1980 that would make Ren Ruixiang’s case any less deserving of re-evaluation than the cases that came before. But by the same token, a decision to re-evaluate a case like Ren’s could open the door for re-evaluation of other counterrevolution convictions that came afterwards, say in 1983 or 1989.

Under Xi Jinping, China’s judicial system has made a point of its efforts to prevent and remedy wrongful convictions, and there have been some notable instances in which longstanding convictions have been overturned. But the victims of past political persecutions are clearly not meant to be included among the cases subject for review. Though willing, on occasion, to acknowledge the contribution of police abuse and procedural violations to miscarriages of justice in “ordinary” criminal cases involving rape and homicide, it is easier to pretend that these same things don’t happen in cases involving purported threats to the security of the regime. Perhaps it’s worth asking those who want to strengthen the credibility and legitimacy of China’s judiciary whether a system that maintains this sort of double standard and blindness to past injustice can ever be considered “fair.”

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* "Bandit Hua" likely was referring to the then Chairman Hua Guofeng.