Status,Issues,and Challenges of Chinese Juvenile Justice

Key Principles and Mixed Influences

Characterized by a culture of punitiveness, the general criminal justice system in China retains many traditional punitive principles and practices (Shen, 2016). Nevertheless, the current juvenile justice system in China can be more appropriately described as an admixture of influences from Maoism, Confucianism, and the Western doctrine of parens patriae (Zhao et al., 2015). Researchers argue that the socialist ideology still dominate the operation of the Chinese juvenile justice system (e.g., Feinerman, 1985; Zhao et al., 2015). For example, both the Chinese Juvenile Protection Law (1991, Article 4) and the Chinese Juvenile Delinquency Prevention Law (1999, Article 6) stated that juveniles should be educated in “ideals, morality, rule of law, as well as patriotism, collectivism and socialism.” This ideological influence is expected to continue into the foreseeable future.

The Chinese juvenile justice system emphasizes the Confucian doctrine of “caring tenderly for the young” (Zhao et al., 2015). Traditionally, China has focused its crime prevention efforts on education and responsibilities, using informal social control mechanisms such as persuasion, resocialization, and indoctrination (Friday, 1998; Leng & Chiu, 1985; Zhang & Liu, 2007). Even before the advent of modern times, juveniles especially first-time offenders under the patriarchal order were given lenient punishments (Feinerman, 1985). Juveniles are seen both as more susceptible to negative peer influences and as having ample capacities for rehabilitation. The so-called “temper justice with mercy” conveys an expectation for both justice and forgiveness (Zhao et al., 2015).

An effective response to juvenile crime is a holistic and complex task involving coordination between all parties in the community, including government and nongovernment agencies. As Friday (1998) correctly pointed out, “effective crime prevention can occur only when the philosophy is one of collective responsibilities and not one of castigating blame” (p. 311). In Chinese contexts, the law of wrongdoing is premised on the notion that responsibility is collective or group-oriented, rather than individual-based. By advocating a collectivist culture, Confucianism promotes shame instead of punishment. In other words, children are taught to uphold the honor of the family by avoiding shame brought by delinquent acts (Bao & Haas, 2009). The Chinese Juvenile Delinquency Prevention Law (1999) stipulates that all government agencies, judicial organizations, relevant social agents, schools, families, urban residents’ committees, and rural villagers’ committees need to work together to create a suitable social environment for juveniles (Article 3). The Criminal Procedure Code of 1996 further stipulates that the courts, the procuratorates, and the police should ensure the procedural rights of juveniles when handling juvenile criminal cases (Article 266). Through the implementation of these laws, the government hopes the principle of protecting “the best interests of the child” could be enforced within the criminal justice system. The intention of the law also reflects the traditional Chinese belief in the power of education in shaping thoughts and behaviors (Zhang & Liu, 2007).

Over the past few decades, restorative justice has emerged as an increasingly important element in the mainstream criminal justice worldwide (Braithwaite, 1989, 2002). It has grown rapidly with the emergence of new intervention strategies, standards, and principles in Chinese juvenile justice as well (Wong & Mok, 2011). The restorative approaches were introduced to focus on juvenile offender accountability, offender competency development, and community protection (H. Zhang, 2015). The long history of Chinese traditional teachings seems to be in sync with the spirit of restorative justice. Thus, it came as no surprise that the Chinese naturally feel more empathy for the juveniles, and are more inclined toward reconciliation between juvenile offenders and their victims (Wong & Mok, 2011; Zhao et al., 2015).

Juvenile Justice Process

China does not have a separate juvenile justice system from the perspective of the Western models (Feinerman, 1985; Wong, 1999, 2001; Zhao et al., 2015). The organization and procedure of the juvenile justice system in China are not significantly different from those of the adult system. The discretionary power of juvenile justice authorities mirrors the process in cases involving adult offenders (Feinerman, 1985). However, because of their age and vulnerability, juvenile offenders do receive extra protections than their adult counterparts. The Chinese Criminal Procedure Code (1996) prescribes how the police, the procuratorates, the courts, and the correctional system handle juvenile offenders. Interestingly, the increased procedural formality since the implementation of the revised Chinese Criminal Procedure Code in 2012 had coincided with the stronger advocacy for treating juveniles with mercy. In the space below, we highlight a few recent developments to illustrate how the Chinese criminal justice agencies have begun to make adaptations at the local level.

The Chinese police have always had the discretion to impose a series of administrative sanctions against juvenile offenders without judicial review (Feinerman, 1985; Leng & Chiu, 1985). Under the law, the police also have a clearly defined role in delinquency prevention (Wong, 2004). Although many police agencies have juvenile specialists, the country’s first juvenile unit within a police agency was not established until 2013 in Qinzhou, a coastal prefecture in Guangxi province. The new police brigade is made responsible for supervising juvenile criminal case processing, conducting investigation, collecting social inquiry reports, facilitating legal aid services, and strengthening the collaborative efforts against juvenile crime with the procuratorates, courts, and other agencies (Huang, 2013).

The procuratorate is the state agent for legal supervision in China, in addition to its prosecutorial functions. It has the right to exercise procuratorial authority by carrying out legal supervision on police investigation and court processing (Wong & Mok, 2011). Granting a special role to the procuratorate in dealing with juvenile cases has been deemed vital for Chinese juvenile justice. Recent juvenile justice reforms included the establishment of the Procuratorial Office for Juveniles within the Supreme People’s Procuratorate in December 2015. One of the goals for specialized juvenile prosecution is to develop a system of comprehensive services tailored to the needs of the juveniles. By March 2016, 12 provincial procuratorates, 123 prefectural procuratorates, and 893 county or district procuratorates had established special independent procuratorial departments to process juvenile crime (Information Office of the State Council of the People’s Republic of China, 2016).

Similarly, the meaning of a juvenile court in China might be quite different from its Western counterpart. Some suggest that it is more appropriately referred to as a juvenile tribunal (Zhao et al., 2015). The terms utilized to describe Chinese juvenile tribunals vary across jurisdictions. For example, they can be called criminal tribunal’s juvenile collegiate panel, juvenile criminal tribunal, or juvenile comprehensive tribunal. Official data from 2016 show that there are 2,249 juvenile tribunals, including 1,246 collegiate panels, 405 juvenile criminal tribunals, 598 comprehensive tribunals, representing a diversified field practice. From 1984 (when the first juvenile tribunal was created) to 2016, the number of juvenile offenders adjudicated nationwide exceeded 1.5 million. The possible sanctions range from strict parental and community controls, to an assignment to a work–study school, to serving sentence in a juvenile prison (Epstein, 2003; Feinerman, 1985).

The Chinese work–study school that functions as juvenile reformatory education has become the most widely used measure for dealing with juvenile delinquency cases in China (MacBean, 1999). It combines the intensively supervised middle-school educational curriculum with light labor to inculcate moral values and teach self-discipline among juvenile offenders (L. Zhang, 2008). In practice, however, there seems to be a net-widening effect when some work-study schools also house students with Internet addictions, pregnant teens, and homeless children (Jin, 2015). Against the backdrop of rapid urbanization and modernization, the students in the work-study schools increasingly tend to be the left-behind children and migrant youth (S. Zhang, 2016).

Rising Crime Among Migrant Youth

China is facing an internal migration crisis at an unprecedented scale in human history. Since the creation of the household registration system (Hukou) in 1958, China has structured social relationships by limiting population mobility and by separating the urban and rural populations (Curran, 1998; Qiao & Huang, 2013). China began to experience an explosion of internal migration starting in the early 1980s (Curran, 1998; Friday, 1998). Based on the Census data, Qiao and Huang (2013) reported that in 2010, the internal migrants (or the floating population) had reached 261 million, accounting for 20% of the national population, and that it had increased by 117 million (or 81.0%) in the first decade of the 21st century.

High-risk juveniles, such as migrant youth, are suspected to have higher offending rates. As a demographic group, they have already taken up an alarming share of the population in the juvenile justice system. The growth of juvenile crime in the urban areas and coastal regions mirrors the country’s uneven economic development (Epstein, 2003; Wang, 2016; Zhou & Ge, 2015). The rate of juvenile crime among the migrant youth population in the economically developed regions continues to grow rapidly, especially in Shanghai, Beijing, Guangdong, and other provinces with high immigration rates. For example, the share of migrant juvenile offenders grew from 70% in 1992 to 85% in 2000 in Guangzhou, the capital city of Guangdong province (An, 2004). Although the ratio of local to nonlocal juvenile offenders incarcerated in Shanghai Correctional Institution was roughly 6:4 in 2000, this proportion has been reversed to 4:6 from 2003 onward. By 2005, the proportion had reached 3:7, and as of 2007, this ratio was close to 2:8 (W. Zhang, Lin, Zhou, & Qian, 2007). By analyzing a Beijing district court’s juvenile criminal cases adjudicated from January to October 2013, Y. Zhang and Wang (2015) found that 80% were committed by migrant youth. Similarly, data from the Supreme People’s Procuratorate show that among all juvenile cases processed in 2014, 57,932 (or 75%) cases involve migrant youth. ¹

Juvenile Tribunals, Family Tribunals, and Work-Study Schools

Despite recent reforms and progresses, China’s contemporary juvenile justice system faces many challenges. Although considered vital, an approach to safeguarding child welfare has not been fully integrated into the juvenile justice system. To date, there is no national agency whose primary mandate is delinquency prevention and child welfare. The Chinese juvenile justice system is gradually maturing amid legal transplantation and innovation, but the formation and role of complementary child welfare, especially specialized government child welfare authorities, are still faltering (H. Zhang, 2013).

In keeping with the legislative evolution, there has been substantial adaptations within Chinese criminal justice agencies such as the creations of juvenile tribunals and juvenile prosecution. Nevertheless, the number of juvenile criminal cases adjudicated has been decreasing significantly in recent years, whereas cases involving family disputes (part of which are related to juvenile issues) have increased remarkably. For example, in 2014, the Basic People’s Court (or courts of first instance) adjudicated 1,619,000 cases of family disputes over inheritances and marriages. The total count of such cases reached 1,733,000 in 2015. There has been substantial pressure nationwide on the Chinese courts to merge juvenile tribunals with family tribunals. In fact, the City of Guangzhou had already merged its juvenile tribunals with the family tribunals in early 2016. The scope of cases handled by the juvenile and family tribunals in Guangzhou includes those involving marriage, adoption, parentage, recourse for alimony, and inheritance, as well as criminal cases involving juveniles. To the outside observers, it remains debatable whether the merger and reorganization of these two tribunals in Guangzhou is a genuine integration or a convenient union to optimize court resources.

Work-study schools, a mainstay mechanism for reforming juvenile delinquents in the past, are facing difficulties with surviving due to “a combination of diminishing effectiveness in a context of changing social circumstances and a growing awareness of the deleterious effects that can follow the labeling of young people” (Shen, 2016, p. 98). In the beginning of the implementation of work-study education, the schools enrolled students on a mandatory basis. With the implementation of the Juvenile Delinquency Prevention Law in 1999, the standards for enrolling were changed to be tripartite voluntary, requiring the consent of the parents, the school, and the student. Immediately after the implementation of the new law, the number of work-study schools across the nation had once reached a peak of more than 200. However, the figures have fallen rapidly since then, and many of these schools have been closed (Jin, 2015; S. Zhang, 2016). According to recent statistics from the Chinese Ministry of Education, there are only 78 of such schools nationwide with a total enrollment of 9,307 students in 2014. The remaining schools are keen to rename themselves as “specialty schools.” For instance, Beijing’s “Haidian Work-Study School” was renamed as “Haidian Boarding School.” Researchers speculate that the significant drop in the number of work-study schools in China is not due to a diminished juvenile delinquency problem, but rather an outcome due to stricter enforcement of the tripartite voluntary requirement.

Issues of Legitimacy

The Chinese juvenile justice system has been under increasing scrutiny in recent years. There is a continued debate about the balance between public safety and juvenile rehabilitation. The Chinese juvenile justice system is now facing similar issues like those endured by other nations decades earlier. More specifically, the assumptions about the nature of juvenile crime, the blameworthiness of juvenile offenders, and how society should reconcile the competing concerns of public safety, victims’ rights, and juvenile development are in question (Fagan, 2008). Since 1966, the U.S. Supreme Court’s decisions in Kent v. United States, 383 U.S. 541 (1966), In re Gault, In re Winship, 397 U.S. 358 (1970), and McKeiver v. Pennsylvania, 403 U.S. 528 (1971) have blurred the once steadfast distinctions between adult and juvenile courts (Feld, 1997). For instance, the Kent Court decided that due process rights should be applied to juveniles to ensure justice.

Although the American juvenile justice pendulum has slowly swung toward juvenile accountability and punitiveness (Feld, 1997), the Chinese juvenile justice system is at a crossroad. It should be noted that a large component of the Chinese juvenile justice system has been aimed at lowering recidivism rates. However, sealing juveniles’ criminal records has led to practical difficulties in testing the system’s effectiveness in reducing recidivism rates. Ironically, the introduction of the new chapter on juvenile criminal proceedings in the Chinese Criminal Procedure Code (1996) may substantially strengthen the components that criminalize juvenile offenders and increase the system’s punitive character, which seems contrary to its legislative intentions (H. Zhang, 2013).