Understanding Criminal Punishment and Prisons in China

The Supremacy of “de” and the Subservience of “xing”

In the Han Dynasty (202 bc-220 ad), Dong Zongshu (179-104 bc), a Han Confucian, integrated the legalist and Yin–Yang (阴阳) schools of thought to create his own Confucian doctrines. He overhauled the standard interpretation of the Confucian classics and advocated combining the functions of li and fa by emphasizing the supremacy of de (德 morality) and the subservience of xing (刑 punishment). Eventually Emperor Wu (157-87 bc) adopted Confucianism as the official orthodox doctrine. The synthesis of Confucian and legalist ideals in fact provided imperial China with a basic rationale for the administration of justice and punishment that continued to influence the way criminal justice operated up to the 20th century (Wu & Vander Beken, 2012). In particular, the emphasis of the supremacy of de and the subservience of xing (德主刑辅), or the idea of “morality given priority over penalty,” was fundamental to the administration of justice in the imperial state.

Careful Punishment and the Shame Penalty of Imprisonment as Forced Labor

Legalists would frankly admit that the use of draconian punishments even for the slightest wrongdoing serves the goal of keeping people in check through fear, but Confucians maintain that punishments need to be zhong (中 appropriate) to meticulously fit the crime. For Confucius, it was very dangerous for the ruler to use punishment excessively, because then, “the people are unable to see the link between sanctioned violence (right punishment) and moral values, and the result is chaos and disorder” (Mühlhahn, 2009, p. 19). The idea of zhong punishments found expression in the significant transformation of legal penalties since the Han dynasty. From the Han to the Sui dynasty (581-618 ad), the mutilating forms of punishment, except for the death penalty, were gradually abolished and were replaced by the so-called New Five Punishments (新五刑): chi (笞 beating with a light stick), zhang (杖 beating with a heavy stick), tu (徒 penal servitude/imprisonment as forced labor), liu (流 exile), and si (死 the death penalty). Because the degree of punishment had to correlate exactly with the nature of the severity of the crime, each of the punishments was divided into several grades or scales. As the New Five Punishments were gradually established, the prison became the most essential part of the system of punishment in imperial China.

Here, one has to be mindful of the primary function of a legal penalty, which is to deter potential criminals through fear of punishment. Given that the use of shame is a prominent technique for social control and child rearing in Chinese culture, imprisonment as forced labor was designed as a shame penalty and was conceived as moral condemnation informing the public about the offense and the offender as much as it was conceived as a procedure for inducing in the offender a sense of guilt and repentance. The goal of imprisonment in the Tang Code Commentary (tanglvshuyi唐律疏议) is paraphrased as follows: “The one who is sentenced to tu (徒) is a slave; its [purpose] is to enslave and to disgrace the convict (6: 57).” Using tu as a penalty worked as a great deterrence. This is apparent because being put in prison for a criminal conviction is a stigma in society significantly attached to group honor and morality, and degradation by being treated as a “slave” is a significant psychological bite, carrying the bitterness of being treated as an inferior. Nevertheless, shaming in the minds of the feudal Chinese elite was not just a way to inflict pain and degradation on people, it was also a way to “educate” them. The Commentary brings the educating effect of imprisonment to the forefront. The Commentary states that

[a]ccording to the Rites of Zhou (zhouli周礼), “the prisoners should be detained in huantu (圜土) and given labour tasks in order to educate them. [For those who manage to reform themselves], the heavy offenders can be released after three years; the medium offenders can be released after two years; and the light offenders can be released after one year.” (Volume 168)

It was thought that the “hardship” (kunku困苦) of penal servitude was capable of forcing the convicts to feel repentance, and therefore, become motivated to rehabilitate themselves (zhoulizhushu周礼注疏, 34). However, this educational function was not present in prisons throughout imperial Chinese dynasties. As the prisoner was first and foremost considered a “slave,” the logic that actually governed the prison’s operation was driven more by pragmatic economic concerns than by an impulse to reform individuals.

Criminal Punishment for Suppression and as a Last Resort

An historically embedded cultural trait—“the subservience of xing”—kept the Chinese punishment regime firmly in place during the Mao era; criminal punishment was reserved only for suppressing offenders who committed serious crimes and was especially directed toward class enemies who did not accept and support the Communist leadership. In his well-known speech “On the People’s Democratic Dictatorship,” Mao (1967, pp. 445-446) talked about how a socialist society should react to deviant actions committed by the people and counterrevolutionary actions of the enemies. The people who commit crimes might demand imprisonment or even the death penalty, but, in general, persuasion rather than coercion is the standard method to educate wrongdoers among ordinary people. The punitive punishment of the criminal justice system is mainly used as a suppressive instrument to punish class enemies. Mao’s systematic distinction between the people and enemies of the people was not something new and purely inspired by Communist thinkers. As we have observed, it has been an important part of Chinese politics to govern society in accordance primarily with li through persuasion and moral example, and the punishment power of the government must be “restricted” to those who are incorrigible.

The social power structure in the post-Revolutionary era brought Mao’s idea into reality. In the process of building a new elite power structure, the Communists departed from the imperial thrones that had stressed family loyalty by displaying higher loyalty to the state. During the early decades of socialist construction, the informal social control preferred by Confucianism was largely institutionalized through an urban household registration system, which linked individuals’ residency with their entitlement to social programs. The strict control of population mobility effectuated different social control mechanisms in the community, which were primarily responsible for handling local disputes and wrongdoers who had committed minor offenses (Whyte & Parish, 1984). When individuals violated rules under the Security Administration Punishment Act, ¹ the police had the authority to impose a series of administrative sanctions without formal litigation. Consequently, the formal court process was operated in a comparatively limited way by prosecuting cases only involving serious offenders, especially political opponents or counterrevolutionaries deemed dangerous to the socialist state.

Criminal Punishment as “Stigmatizing” to Deter and for Education

The formal criminal justice system, for Chinese Communists, is preserved solely for the purpose of class suppression through ruthless terror and violence. Mao (1967) said, “The state apparatus. . . is violence and not ‘benevolence’” (p. 446). Like the Confucian tradition, Mao insisted that the primary function of the criminal justice system was to eliminate evil individuals and deter others from committing the same acts through fear of punishment. They differed, however, in that Confucianism centered on “shame” penalties to induce guilt and repentance, whereas Mao claimed the symbolic value of “state violence” in deterrence and education.

Penalties in the Mao era included public surveillance, imprisonment (fixed-term and life imprisonment), and the death penalty. Even though the criminal penalties themselves were not “shame” penalties as their imperial predecessors, the criminal justice system played a powerful role in stigmatizing the convicts to terrify and instruct the public. For example, different kinds of degradation ceremonies, such as mass trials (gongshendahui公审大会) and mass sentencing rallies (gongpandahui公判大会), provided an important avenue through which the emotive representations of public shaming and moral indignation toward crime and criminals were constituted. In the mass trial, “dramatic devices such as staging, props, working scripts, agitators, and climactic moments” were used to engage the sentiment of the audience and direct indignation toward the convicts (Mühlhahn, 2009, pp. 182-183). The death penalty was also frequently executed on the spot. The ritualized public displays of violence during these trials not only terrified the counterrevolutionaries, it no doubt also had a profound effect on the public consciousness. By “executing one man to warn a hundred others” (杀一儆百), degradation ceremonies showed the strong arm of the state and sent the message that anyone who was against the order of the socialist state would be suppressed “ruthlessly.”

Imprisonment in Theory: Paternalistic Corrections

Mao openly expressed his favorable attitude toward the form of terror to suppress serious offenders; nonetheless, he also said that individuals in an antagonistic class could be reformed through “forced” socialist education and persuasion in prison. In Mao’s view, classes were formed on the basis of beliefs or worldviews and a transformation of thinking was possible. “Man can be reformed, and the key to success is that the correct policies and methods are adopted” (S. A. Wang, 1999, p. 75). Indeed in his theory, Mao inherited and defended basic Marxist–Leninist principles, but what distinguishes Mao from Marx and other classical Communists is that he further “developed his theory within the framework of traditional Chinese philosophy” (Ren, 1997, pp. 70-71). The operation and management of the Chinese prison, then, cannot be understood outside the Confucian ethical considerations and practices that underpinned them. It has been well-documented that although the laogai (劳改) system ² is derivative of the Soviet model, the actual practices and internal regimes implemented under the system show marked differences from the one adopted by the Soviet Union. Mao’s prison was in fact a “collective” corrections system constructed upon the rhetoric of “education” and “persuasion” (S. A. Wang, 1999), which, in part, paralleled the existing education and persuasion systems exemplified in families and communities. In this respect, the prison regime was inextricably linked to the traditional belief that human nature is generally good and profoundly malleable, and it is the inherent responsibility of the superior to help the subordinates to recognize their problems and to reform themselves. The superior within the prison, according to Mao, is the prison staff. “[T]he cadre plays a key role in guiding the inmates in thought reform . . . the success of thought reform depends on us (the prison cadre)” (S. A. Wang, 1999, p. 75).

Imprisonment in Practice: Prison as a Tool Undermines the Correctional Purpose

Although Mao’s educational reform of criminals may well be effective, it was an argument that did little to break down the strongly held political association between imprisonment and suppression. The political understanding of prison as a tool for “suppressing” and “punishing” class enemies radically undercut the intended correctional purpose of prisons and rendered prisons modern-day institutions of “slavery.” On one hand, integrating the laogai system into the national economy and organizing engagement in large-scale manufacturing was said to help bring forth a proletarian consciousness among the prison workforce, but penal labor in large-scale economic production, as Dutton and Xu (2005) pointed out, was retributive in nature and typically a form of “punishment” in the eyes of the Chinese. The radical emphasis on production and productivity that had been building up since the mid-1950s and culminated in the Great Leap Forward factually resulted in physical and psychological trauma in the labor units.

The inhumane catastrophes in the laogai system, on the other hand, must also be seen from the legal context of the People’s Republic. Mao had a poor opinion of law. For him, the law was a suppressive tool to be used by the proletariat as a weapon in class struggles against the enemy to realize the people’s democratic dictatorship. Owing to the dominance of a heavily instrumental understanding of law, the legal restraints on the power of the prison varied in accordance with the changes in the official attitude toward law and depended largely on the political mode used to address class struggles (Wu & Vander Beken, 2012). It then helps to explain why the system lacked internal barriers to prevent or limit the catastrophes in the labor units when an inconceivably large number of inmates died because of inhumane and miserable conditions.

A Comprehensive Social Control Approach and Criminal Punishment as a Last Resort

Although revolutionary justice is no longer emphasized, moral persuasion and early prevention is still regarded as the key tenet in crime control in China (X. Chen, 2002). Adhering to the cultural continuities, a comprehensive approach (shehuizhianzonghezhili社会治安综合治理) in combating crime was advocated and adopted by the Chinese government. A “comprehensive” approach means:

[U]nder the leadership of the national and local governments, every factory, enterprise, government office, school, neighbourhood, people’s commune and production brigade etc. is fully mobilized and required to play its role in maintaining public order in its own area, to prevent, reduce and forestall crimes through ideological, political, economic, educational, administrative and legal work so as to maintain a good public order. . . In the meantime, it is necessary to make full use of mass media such as radio, television and newspapers and educate the people in observing law and social ethics, thereby raising their consciousness in combatting criminal offenders (X. Gao, 1983, p. 4).

This social control mechanism, as Schurmann (1968) described, is before-the-fact socialization, not after-the-fact arrest. The broad masses, such as the family, the school, the work unit, the neighborhood committee, and the mass media, are relied upon for preventing crime and providing support to the formal criminal justice system. Similarly, as in the prereform era, the police, without court approval, have the authority to impose administrative sanctions on individuals guilty of minor offenses or public order violations. In this manner, the vast majority of deviants were resocialized by nonprofessional bodies in the community or their cases were handled by police agencies and consequently settled out of the formal criminal justice apparatus.

Criminal Punishment Is Still “Stigmatizing” to Deter and Educate

In line with the above-mentioned preference for moral and ethical persuasion in crime control, policing and penal strategies still seem to reflect the values and aspirations of prereform China: the old rhetoric of “ruthless” or “severe” punishment and the old strategies of “public shaming” and “stigmatizing.” From the early 1980s, China suffered from steadily increasing crime rates as a result of the rapid process of industrialization, urbanization, and modernization. In 1981, to tackle the soaring crime rate, the Chinese government began to wage war on crime by implementing the “Strike Hard” (yanda严打) criminal policy. Yanda anticrime campaigns were then successively launched in 1983, 1996, 2001, and 2010. During the campaigns, the police, the procuratorate, and the court made a concentrated effort over a specified time period to attack targeted crimes “severely and swiftly.” On June 13, 2010, the Ministry of Public Security launched the fourth nationwide yanda campaign lasting for 7 months to “severely crack down on every type of serious violent crime.” In the first 5 months of the 2010 yanda from June to the end of October, the public security organs uncovered over 515,000 cases and over 457,000 criminal suspects were arrested. ³ Similar to the political mass campaigns of the Mao Era, the anticrime campaigns included arrest and sentencing rallies that aimed to stigmatize the suspect or convict in public arenas. In a relatively communitarian society such as China, the theatrics of arresting, adjudication, and sentencing in fact extend beyond their immediate function of carrying the message of the power of the state in combating crime. They also carry the images of community disapproval and moral condemnation (X. Chen, 2002), and therefore, are acting as part of a wider program of public education and crime control in Chinese society.

Ganhua and Paternalistic Corrections

Resembling Mao’s laogai system, which was operated under the principle of “combining punishment with reformation” (惩办与改造相结合), apart from punishment, corrections were still the most important functions of the Chinese prison after the 1980s. In defining the prison’s functions, the Prison Law of the People’s Republic of China states that “[a] prison shall, with regard to prisoners, implement the principle of combining punishment with reform and combining education with labour, in order to transform them into law-abiding citizens” (Article 3). The current correctional rationale of the prison, as the tradition of “deterring through fear of punishment,” can also be best understood via reference to the past: the belief that individuals are malleable and can be educated and persuaded to reform themselves and consequently behave in proper ways.

In the 1950s, the correctional aspect of the prison was largely political, trying to root out the wrong belief in the political prisoner’s mind. In the new era, crime was viewed primarily as a result of deviant thought, and a change of heart was possible by reformation (Shaw, 1998). To form and reform the individual’s mind and behavior, the ganhua (感化) and patriarchal approaches continues to be considered the “ideal.” As Dikötter (2005) demonstrated, the notion of ganhua (感化) was never seriously challenged in China and is still an important part of Chinese thinking regarding prison reform. According to D. P. Zhang (2010, p. 4) the notion of ganhua (感化) is the “core of penology” in modern China. Guanhua has no direct English language equivalent, but could be roughly translated as “helping people (both thought and behavior) toward positive changes through specific actions or kind persuasions.” ⁴ In the prison/correctional system, the term ganhuajiaoyu (感化教育) features a “holistic or comprehensive” strategy (P. Wang & Lin, 2009). That is, a variety of social forces, such as family, school, and communities, should be mobilized to support and help the prisoners psychologically as well as financially, and a variety of methods, such as legal–moral education, cultural education, career education, and productive labor, should be adopted to inspire the prisoners’ willingness to self-improve and to comply with social norms.

As we have seen, Chinese families and communities, which historically served various important functions, such as taxation, military, mediation, and welfare services have long been important institutions of informal social control in China. Under these communitarian social conditions, individuals almost always find themselves belonging to a closely integrated group that reflects their honor or shame. This group concern and mutual “interest” also ensure interdependency and reinforces ganhua as a mechanism in reforming wrongdoers (Wu & Vander Beken, 2012). Before the 1980s, however, the practice of involving social forces in reforming prisoners lacked formalization and professionalization. Since the 1980s, the Chinese leaders have attempted to build up a more stable and formal legal order and Mao’s mass line strategy, which emphasized the importance of mobilizing and organizing the masses to participate in the processes of criminal justice have been reaffirmed and developed officially. In 1990, the Bureau of Labor Reform of the Ministry of Justice of the PRC published “the Summary of the Working Conference of Audio-visual Education and Deepening Education Reformation” and required the prisons to work with various social forces and to sign the “help-education contract” (bangjiaoxieyi帮教协议) with the social forces to educate, persuade, and reform the inmates.

According to Article 68 of the “Prison Law of the People’s Republic of China,” promulgated on December 29, 1994, and amended on October 26, 2012, “[s]tate organs, public organizations, units of armed forces, enterprises, institutions, personage of various circles and family members or relatives of prisoners shall assist prisons in doing a good job in the education and reform of prisoners.” In 2003, the “Provisions on the Work of Prison Education and Reform” was adopted and provided details on “Social Help and Education” (shehuibangjiao社会帮教) in Chapter VI. The social help and education included the help from “all forces of the society” (Article 39): the families, the work units (danwei单位), the schools, the local governments, the volunteers, and the legal aid organizations (Article 40, 41, 42). As an empirical matter, using data from a survey of inmates in prison and reform camps in the city of Tianjin, a study of China’s bang-jiao(帮教) ⁵ strategy found that the crime control strategy in China reflects its distinctively communitarian character: “[o]rganizing people from all parts of an offender’s life (family, school, neighborhood, work, police) into a focused group appears to provide a formidable social force for reintegrating offenders into the community” (L. Zhang et al., 1996, p. 220). From a theoretical standpoint, the bang-jiao strategy thus can be viewed as an organizational mechanism to facilitate the social control process that Braithwaite (1989) calls “reintegrative shaming,” a societal response to crime that affirms wrongdoing, while encouraging the reacceptance of offenders into society (pp. 84-97).

The ganhua approach is also reflected in the patriarchal or fatherly approach in the prison regime. It is worth noting that Chinese patriarchy fundamentally differs from that found in the West. Jamieson (1921) noted that there is no Chinese concept equivalent to patria potestas; in Chinese, the relevant concept identifying patriarchy is xiao (孝). More specifically, patria potestas defines jurisdictions within which a person can exercise personal discretion, and accordingly defines relations of authority between people. Xiao defines roles, actions, and values that accompany the roles, and, accordingly, a person’s duty to a role. These two concepts imply different ideas about the nature of patriarchal domination both within and especially beyond the family (Hamilton, 1984). Hence in China, a patriarchal relationship between the cadre and the inmate means that the prison officer, with an integrative use of sentiment and reason, should act toward the prisoner as a caring father toward his son (Dikötter, 2005; Jiang et al., 2014). The “Provisions on the Work of Prison Education and Reform” has a specific chapter concerning “Individual Education” (Chapter III). “Individual Education” means that “[a] prison shall, in light of each prisoner’s specific information, arrange the people’s police of the prison to hold pertinent individual education for him” (Article 14). Empirically, interviews with the prison officers also found that the patriarchal approach was used to reform inmates’ thought and behavior in the prisons. ⁶ As Chao Zhang, who is a prison officer working in yunhe (运河) prison in shangdong (山东) province and put full effort in guanhuajiaoyu, stated,

Concerning those prisoners who convicted of serious crimes, we have obligations and confidence to reform them into law-abiding citizens when they are released. Because those prisoners often serve long-term imprisonment and are under immense [psychological] pressure, we need to use different education methods and individualized plan and adopt the principle of “teaching according to aptitude” [to reform them]. (Lin & Liu, 2014)