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Forward with notes by Jeremy Daum
China is in the process of overhauling all its legal system as it relates to children. Revisions of the two most critical laws, the “Law on the Protection of Minors” and the “Law on the Prevention of Juvenile Delinquency” are nearing completion. In the article translated below, Director Tong Lihua of the Beijing Children’s Legal Aid and Research Center, a pioneer in child advocacy, highlights what he sees as ‘fatal flaws’ in the second draft of the delinquency law, which is currently available for public comment.
China does not have a discrete juvenile justice system, although it now offers some procedural concessions for minor offenders’ immaturity, seals their criminal records, and requires more lenient sentencing. Under the existing law, minors 13 and under do not bear criminal responsibility and those who are 14 or 15 may be held criminally liable only for certain very serious offenses such as intentional homicide, intentional harm causing death or serious injury, robbery, rape, arson and drug-trafficking. Many are calling for the age of criminal responsibility to be lowered in at least some cases, while others call for non-criminal means of intervention that emphasize education and reform.
In addition to criminal punishment, China has other forms of intervention and punishments that can be invoked against minors. Placement in a work-study reform school operated by the Ministry of Education in collaboration with police was once a popular way of addressing at-risk youth, but their use tapered off following previous revisions to the delinquency law which allowed parents to choose whether their children would attend such schools. The new draft relies heavily on such schools under their modern name “specialized schools” (专门学校）, using them to address both lawbreakers and youth with serious behavioral problems.
Where minors have already broken the law, they may sometimes be given short administrative detention or placed in custody and instruction (收容教养). Custody and instruction is a form of administrative punishment which may last for years, and is imposed directly by the police without a court hearing. The trend however, has been against such heavy administrative punishments, and similar systems for prostitutes and minor offenders have already been abolished.
The tension in revising the treatment of child offenders is hardly unique to China. The public is both compassionately concerned about the welfare of minors and rightly horrified when children commit serious offenses. Ensuring that minors’ rights are truly protected and that they are given a true chance at reform while also protecting their peers and society is a daunting task, but as Tong Lihua points out, the current draft reform falls far too short.
The ‘Fatal Flaws’ in the Draft Law on the Prevention of Juvenile Delinquency
|Tong Lihua is a public interest lawyer and founder of Beijing Legal Aid and Research Center for Children and Beijing Zhicheng Legal Aid and Research Center for Migrant Workers. He is deputy director of the China Young Volunteers Association, director of the legal aid committee and child protection committee of All China Lawyers Association, and director of Beijing Juvenile Law Society. He was a deputy to the 18th National Congress of the Communist Party of China and a deputy to the 13th and 14th Beijing municipal People’s Congress. He was a visiting scholar at Yale University and Columbia University. He has done in-depth research in the areas such as child protection, migrant worker protection, public interest law, and legal reform.|
The draft Law on the Prevention of Juvenile Delinquency has been released for public comment. For 20 years I’ve closely followed China’s efforts on the protection of minors and prevention of juvenile crime, and have brought a strong sense of purpose and responsibility to participating in the current revisions of the Law on the Protection of Minors and the Law on Prevention of Juvenile Delinquency. Having carefully read the latest draft of the Delinquency prevent law’ I have to say that it has some ‘fatal’ defects, and does not provide a rational and effective system or plan for addressing the issue of crimes by young minors, which is of great public concern.
1The seriousness of the problem of crimes by young minors
I still can’t forget a legal aid case that our center handled 5 years ago. A mother had taken her 5 year old son and 19 month old daughter to the West Train Center. In the time it took for the mother to go get some hot water, a youth of only thirteen snatched the girl away right in front of her 5-year-old brother, then raped and strangled her to death in the grass outside the station.
This was not a simple case. We sorted through more than 40 cases of crimes by minors under the age of 14 that had taken place since 2008, and many of them were shocking.
Some had brutally killed their parents:
- In Mach 2019, a 13-year-old boy in Jiangsu’s Yancheng city fled after stabbing their mother with a kitchen knife over an argument about money;
- In December 2018, a 13-year-old in Hunan’s Hengnan county struck their parents with a hammer causing them to die from their injuries;
- And in December 2008 a 12-year-old in Hunan’s Yuanjiang viciously hacked their parents to their death with a carving knife.
Some had brutally injured their classmates or others.
- In August 2016, a 13-year-old in Guanxi’s Cenxi bullied 3 kids into revealing where the valuables were kept in their homes, then killed them out of fear that they would tell;
- In October 2015, three middle school students in Hunan’s Shaoyang broke into the dormitory, gagged a 52-year old teacher with a piece of cloth, and beat her with a wooden bat, leading to her death;
- And in June 2014, an 8-year-old boy in Hebei’s Zhangjiakou was surrounded and beaten to death by 11 schoolmates who on average were all less than 14 years old.
Some had long become habitual thieves;
- The justice organs in Beijing’s Fengtai district broke a case where 3 youths with an average age under 14 had previously committed multiple thefts and robberies, but after catching them didn’t take action because they were under age. Later they robbed over 10 phone stores, running off with phones they pretended to be interested in buying. Cases of children becoming habitual thieves have occurred all over the country.
In recent years we have also handled ‘honey pot’ cases perpetrated by minors. One gang of kids about 15 years old sold sex with ‘virgins’ online, then later extorted money threatening to reveal the statutory rape. In one case, they used violence in the extortion and ended up killing the john.
[The failure to address] crimes by young minors not only seriously encroaches on the interests of other minors and leaves many serious incidents of school bullying unresolved, but it also fosters minors’ own malice, encouraging them to further disregard social rules and making it more likely that they will follow the path to commit more serious crimes. The greatest systemic challenge for this group of minors is how to provide them education and corrections, and prevent their further commission of serious crimes.
2Changes between the 1st and 2nd reading drafts of the Law on the Prevention of Juvenile Delinquency
In early September 2019, when I learned that the most significant chapter of the Delinquency Law, that on ‘legalizing custody and instruction’ was deleted, I wrote a deputy committee chair saying that “an enormous problem faced in practice today is what we are supposed to do with a 13-year-old who has murdered someone or repeatedly stolen. Given the seriousness of this problem, I implore you to give it proper attention when revising the “Law on the Prevention of Juvenile Crime.” I’m happy to say that after reading the letter they acknowledged its importance, but regrettably, before its first reading, the Standing Committee of the National People’s Congress deleted the section on bringing custody and instruction under the law, taking the soul out of the draft.
Why do I say that deleting this section of the Law amounts to it ‘losing its soul’? Why do I say that the current draft of the Delinquency Law has ‘fatal’ defects? Because the biggest challenge facing the prevention of juvenile crime today is what to do about crimes by minors under the age of criminal responsibility. This is not only a challenge in practice but is an issue that the public is closely following. If the law cannot provide a systemic plan for resolving it, and the Delinquency Law cannot effectively stop minors from committing further crimes, then what is the point of such a revision?
My letter to the vice-chair in September 2019, turned out to be prescient. On October 20th a terrible case occurred in Dalian in which a 13 year old boy killed a 10-year-old girl. The case drew wide public attention after it was reported by the media on October 25th. As chance would have it, the Standing Committee deliberated the draft revisions to the Delinquency Law for the first time on October 26, but awkwardly, the draft had no system for preventing this kind of murder by a 13 year old.
In early August 2020, the Standing Committee deliberated the draft revisions for a second time and in the 45 article draft released for public comments on August 17th, 3 paragraphs provide principles for this situation:
Article 45: Where juveniles have conduct provided for in the Criminal Law but do not receive criminal punishments because they are under the legally-prescribed age of criminal responsibility, the public security organs may make a decision to send them to a specialized school for specialized education after a review by the specialized education guidance committee.
Provincial-level people’s governments shall consider the actual local conditions and designate at least one specialized school to set up a special location as a campus or class to conduct corrective education for minors provided for in the preceding paragraph.
The locations provided for in the preceding paragraph are to implement strict management, and the judicial administration departments, public security departments, and so forth, shall assist them.
3 8 Issues in the Second Deliberation Draft of the Delinquency Law
- Preventing juvenile crime is precision work and you can’t put everyone in one basket. The fundamental principle for preventing juvenile crime is employing targeted prevention measures based on different types and levels of offenders. Specialized schools, which are really traditional reform schools, primarily address minors with serious negative conduct such as fighting, cursing, or hitting people. Custody and Instruction address minors who commit criminal acts such as murder, rape, or robbery, but who don’t receive punishment because they are under the age of criminal responsibility. These two groups of people are qualitatively different in terms of their subjective malice, the degree of harm from their conduct, and the corrective education measures that should be employed. Putting them all in one basket by using the specialized school systems for all of them, is not only not a precise distinction by type and level of offender, but it also merges them together in a melting pot, combining those who’ve committed murder and rape with minors involved in ordinary fighting. Putting them all in one basket like this can’t help but cause the following problems:
- Obliterating the efforts of specialized schools in recent years to downplay the stigma of labeling students as “bad kids” and to strengthen their educational attributes;
- Contamination between the different groups with young minors with criminal acts worsening those with only serious negative conduct;
- Making parents even more reluctant to send minors with serious negative conduct to specialized schools.
- Vague language conceals a key problem in the system’s design that will make it difficult to implement. Is sending kids who have committed criminal acts but who are not yet at the age of criminal responsibility to specialized schools a restriction on their physical liberty? The draft law only provides that “specialized schools are to implement strict management” and that judicial administrative organs and public security organs are to assist them. But what kind of strict management? And how are the judicial administrative departments and public security organs to assist?
The draft doesn’t have any specific provisions. If education and corrections for minors who have already murdered, raped, or habitually robbed does not restrict their physical liberty, it will be very difficult to achieve the goals of corrections. If their freedom is limited, however, then the justice organs, ideally the courts rather than the police, should make the decision. Unfortunately, the draft Delinquency Law only provides that ‘strict management’ be carried out. Can you call that a system plan? What counts as legal strict management? Honestly, I wouldn’t know how to implement this.
- This type of provision is at odds with recent efforts to protect human rights. In recent years, China has sequentially abolished [the administrative detention systems of] custody and shelter, re-education through labor, and custody and education, precisely in order to limit the ability of public security organs to impose punishments on citizens that limit their physical liberty, and making it so that only the procuratorate and courts can impose limitations on physical liberty and do so through judicial procedures meant to protect human rights as much as possible; with the exception of administrative detention and the compulsory measure of criminal custody. The UN Covenant on the Rights of Children and China’s own Law on the Protection of Minors emphasizes the principle of the best interest of the child, giving special and priority protections to children. So, if the police’s power to restrict the physical liberty of adults has already been eliminated, why would they still have it as to minors?
Special attention should be given to the final item in article 37 of the UN ‘Convention on the Rights of the Children’: ‘Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.’ If specialized education for the minors under discussion is a restriction on liberty, it should clearly be the courts that make the judgment.
- Wrongly decided and unjust cases are inevitable. The requirement for this type of specialized education is that minors have committed criminal acts, but how is it to be decided if they have done so? If it’s only a minor situation, is it unnecessary to use this kind of specialized school? Are there mitigating circumstances? How long a period of this specialized schooling is required?
The judicial organs are to cautiously decide these issues for those who have reached the age of criminal responsibility, and they are to have the assistance of a lawyer. If we simply say ‘the public security organs are to decide’ there is not only no balance of powers, but there are also no procedural safeguards, making it hard to avoid having some abuses of power and hard to guarantee these young minors’ rights.
- Specialized schools will need to address the challenge of the lack of corrective measures. Some will say that the draft doesn’t provide for restrictions to physical liberty, so the disadvantages I’ve mentioned shouldn’t really exist. But this is precisely one of the fatal flaws in this law. The law only provides for ‘strict management’ and doesn’t provide for restrictions on physical liberty– so what will strict management measures look like? The law doesn’t enumerate them and this can’t help but leave the specialized schools at a loss for how to address these minors. It’s hard to provide discipline and carry out corrections without restricting their physical liberty, but restricting physical liberty might be illegal, and could even result in punishment. So how are the specialized schools supposed to handle these minors?
- Public security organs will face a difficult choice. Article 47 of the Draft provides that “Where minors, their parents or other guardians, and their legal representatives are unsatisfied with an administrative decision provided for in this Chapter, they may raise an administrative reconsideration or administrative lawsuit in accordance with law.” We can safely bet that police will end up stuck between a rock and a hard place. If they decide to send minors to specialized schools, they’ll face a large wave of administrative lawsuits; if they decide not to send them and the minor commits further crimes, they might be held accountable. Which is to say that entrusting this kind of complex issue solely to the public security organs is also putting a challenge in their path.
- Pinning one’s hopes on lowering the age in heinous cases of heinous crimes is an irresponsible attitude that allows punishment without prior warning. The public is currently worried about the problem of crimes by young minors and many are calling for the age of criminal responsibility to be lowered, while others have started to research the question of liability for particularly heinous crimes. I’m not simply rejecting these ideas, but my view is that we first need a system designed to prevent crime, and that for those matters that can’t be easily resolved by the prevention system, we should consider a system of lowering the age of responsibility for serious offenses. Without an effective crime prevention system, lowering the age of responsibility for heinous crimes amounts to a form of punishment without warning, and is irresponsible to the minors.
- What is the Specialized Education Guidance Committee? The draft provides for a specialized education guidance committee which seems to have great powers such as to decide whether to send children with serious negative conduct to receive specialized education and to carry out assessments of minors who have committed criminal acts but who are below the age of criminal responsibility. So, is this committee a standing body or a looser organization? Historically we have had RTL committees that were able to decide whether people were sent to RTL, but it was always really the police that decided. What is the nature, authority, and personnel makeup of this committee? Unfortunately, the law isn’t clear.
I say that these 8 problems with the draft Delinquency Law are fatal defects in the draft is because these problems really are very serious. To give a simple overview: Preventing minors from committing crimes is the soul of this law. It is the problem that this law must resolve, and if it cannot do so, then this law is lacking a soul. Preventing crimes by young children touches on many people’s lives and well-being. If there is no effective prevention system, more people will lose their lives or be seriously injured because of crime.
The draft steers clear of the phrase” shourong jiaoyang” (custody and instruction). Many think that since the state has already abolished ‘shelter and repatriation, re-education through labor, and custody and education, the name ‘custody and cultivation’ is language that clearly belongs to an old system that should be abolished, and new legislation shouldn’t use it. But the current tactic is to abolish the name but give the power to limit physical liberty to the public security organs where the restrictions may last months or even years. This amounts to an improvement of appearances with a substantive backslide.
4Recommendations and hopes for reform
My recommendation for reform isn’t complicated. Design two different systems for minors with serious misconduct and for young minors who commit crimes: specialized education and compulsory instruction. Specialized education would be the responsibility of the administrative departments for education, mainly providing education and corrections for minors with serious negative conduct- upon the decision of the education departments and with the judicial organs cooperating. Compulsory instruction would be the responsibility of the departments for the administration of justice. The public security organs would submit a recommendation for compulsory instruction of minors who have committed crimes but are below the age of criminal responsibility, and the procuratorate would review it and forward it to the people’s courts, which would decide whether to impose corrective instruction and for how long.
It needs to be explained that in creating a new compulsory education system, provinces needn’t set up new independent facilities as they usually already have RTL centers for minors, and minors who commit crimes but are under the age of responsibility were originally already sent here. So after the abolition of RTL, establishing a mandatory education system will be quite smooth.
Happily, as the Standing Committee deliberates for a second time, many members have expressed awareness of the seriousness of the problem. Vice-Chair CAO Jianming, Wang Hongyan and others have all raised the discrepancy of custody and education and specialized education. And they have clearly indicated a direction for reform of bringing custody and education under the law. We hope that this revision of the Law on Preventing Juvenile Delinquency can effectively resolve these social problems, can provide for a system and plan that effectively resolves them, and can encourage and ensure more minors’ healthy development.