A Restorative Justice Audit of the Chinese Criminal Justice System

Transcription

1 A Restorative Justice Audit of the Chinese Criminal Justice System by Xinzhou Zhang 1 INTRODUCTION... 1 PART 1: THE VALUES OF PERSONALISM & REPARATION... 5 Introduction... 5 The values of personalism and reparation in restorative justice... 6 The values of personalism and reparation in the Chinese criminal justice system... 8 The relationship between the state and the individual in China The theme of the Chinese criminal justice system Conclusion PART 2: THE VALUE OF REINTEGRATION Introduction Punishment in the Chinese criminal justice system Reintegrative shame and Confucian culture Bang jiao reintegrative practice in China Conclusion PART 3: THE VALUE OF PARTICIPATION Introduction The participation value of restorative justice The Chinese criminal justice system and the value of participation The victims role in criminal proceedings Private prosecution The supplementary civil action Mediation and bang jiao Chinese restorative justice? Reasons for the prevalence of mediation Critically evaluating the people s mediation Conclusion CONCLUSION AND DISCUSSION REFERENCE Dissertation submitted 1 September 2004 in partial fulfillment of the requirement for the degree of MSc Criminal Justice Policy at the Department of Social Policy, the London School of Economics and Political Science. I am grateful for the comments and assistance offered by my dissertation supervisor, Dr. Declan Roche. I would like to thank Daniel W. Van Ness for his kind advice and editorial suggestions on English expressions, which helped produce a better essay. My friends at the LSE, Artis O. Kakonge, Faidra Papadimitriou, Chris Niemelae, Carlos Brito, Christoph Skupnik, Jack Pascoe, Andrey Laptev, Yin Xiao and Yanhui Wu, have given me constant support and encouragement. Finally, I would like to thank Fangquan Liu for the stimulating exchanges when writing this essay.

2 INTRODUCTION During the past three decades, dissatisfaction with respect to limitations of the traditional criminal justice system in controlling crime has given rise to restorative justice, which provides a new pattern of thinking about justice (Van Ness & Strong 1997). Restorative justice offers a new lens with which to view crime and justice. Howard Zehr (1990: 181) describes restorative justice in this way: Crime is a violation of people and relationships. It creates obligations to make things right. Justice involves the victim, the offender, and the community in a search for solutions which promote repair, reconciliation, and reassurance. A restorative response to crime focuses on reparation of the victim s injury and loss, integration of the offender back into the law-abiding community and restoration of community harmony. The victim, the offender and the community are given primary responsibilities for deciding how to work out the solution rather than criminal justice institutions and professionals. Programs of restorative justice have been widely established in industrialized countries as an alternative to formal sanction or as part of such processes (Roche 2003a). Proponents of restorative justice claim that victims and offenders record a higher level of satisfaction than those who go through court process (Umbreit 1994). This is because restorative processes are empowering; they enable the victim, the offender, and the community to work out the solution to crime. The strong ties made to the community reduce the offender s likelihood of future offending. Although restorative justice is not a complete model (Strang 2002), it suggests that criminal justice is not the sole response to crime. 1

3 The Chinese criminal justice system seems to be punitive and retributive (Leng and Chiu 1985; Felkenes 1989); nearly all criminal offences are publicly prosecuted, there are few diversions from criminal penalties, and China is viewed as one of the countries in which the death penalty is most often used. However, the emphasis on harmony in Confucian culture and informal social control practices at the grassroots level seem to have restorative values and possibilities. As John Braithwaite argues, What a pity that so few Western intellectuals are engaged with the possibilities for recovering, understanding, and preserving the virtues of Chinese restorative justice while studying how to check its abuses with a liberalizing rule of law (2002: 22). Therefore, this essay aims to audit the Chinese criminal justice system using restorative criteria. The Chinese criminal justice system is very different from Western justice systems. Influenced by Confucian communitarian ideology and communist philosophy, mass organizations at the grassroots level play a very important role in crime control. Mediation committees and bang jiao groups exist in nearly every local community to deal with minor deviances, resolve conflicts, and rehabilitate juvenile delinquents and released offenders. While the formal criminal justice system is used for more serious offenders (Troyer and Rojek 1985), mass participation in conflict resolution and crime prevention is an integral part of the Chinese criminal justice system. The formal criminal justice system does seem to be punitive and arbitrary. The major statutes are the Criminal Law (CL) and the Criminal Procedure Law (CPL). The CL 2

4 defines the specific crimes and their relevant punishments. Sentences are divided into primary and supplementary categories, and all sentences are offender-centered. The CPL sets out the rules for the criminal proceedings. However, not all criminal offenses are governed by the CL and CPL. Minor offenses are handled through administrative sanctions without trial. Punishment of up to four years imprisonment can be imposed under administrative statutes. The severe strike on crime campaign (SSCC) policy, adopted in 1983, aims to control crime through deterrence by modifying criminal procedures to allow for quicker proceedings and harsher punishments. The essay will correlate four essential restorative values, personalism, participation, reparation, and reintegration (Roche 2003a: 25), with the practices and traditional culture in China to audit the Chinese criminal justice system. Chinese criminal justice relies heavily on informal social control at the grassroots level. Furthermore, the Confucian culture greatly influences the thinking and behavior of Chinese people. Therefore, this audit considers not only the formal criminal justice system, but also the practices of informal social control at the grassroots level that have been profoundly influenced by Confucian culture. The essay aims to identify restorative elements in the total Chinese response to crime. This essay offers a brief overview of the Chinese criminal justice system, based on the limited data available. The difficulty of obtaining accurate data about the criminal justice system is a significant limitation indeed, since many statistics and other data are not publicly available. This essay draws on the author s personal understanding of the 3

5 Chinese criminal justice system. The author is not criticizing but critically analyzing the Chinese criminal justice system in the hope that restorative justice theory might contribute to criminal justice improvements in the country which has one-fifth of the world s population. 4

6 PART 1: THE VALUES OF PERSONALISM & REPARATION Introduction Restorative justice views crime primarily as conflict between individuals. Crime causes substantial damage to individuals and their relationships. The starting point for restorative justice is that crime is first and foremost a violation of people and their relationships, rather than merely a violation of law (Roche 2003a: 26). The effects and consequences caused by many crimes are personal. A basic difference between retributive justice and restorative justice is that they have totally different concepts of crime. Restorative justice focuses on the concrete and direct harm to individuals and relationships caused by crime, rather than on the breaches of abstract state laws that crimes represent. Therefore, the focus of a society s response to crime should be first to repair and restore the injuries and losses sustained from crime, and only secondarily to impose blame and punishment from the state. From a restorative lens, justice should focus on the values of personalism and reparation (Zehr 1990). Part 1 of this essay explores the place of the restorative values of personalism and reparation in Chinese criminal justice, and concludes that they have little if any role. It does so by, firstly, giving a brief introduction to personalism and reparation. Secondly, it audits the values of personalism and reparation in the Chinese criminal justice system. Thirdly, it analyzes the value given individual rights in Chinese traditional culture. 5

7 Fourthly, it considers reasons for the low value given in the Chinese political system to reparation by analyzing Chinese criminal justice policy. The values of personalism and reparation in restorative justice Restorative justice views crime as personal conflict between people rather than the violation of impersonal law. Howard Zehr (1990) uses the analogy of camera lenses to contrast two concepts of justice: retributive and restorative. The retributive lens views crime as abstract, an act that violates state law. Justice involves allocating blame and punishment. On the other hand, when viewed through a restorative lens, crime takes on a personal dimension. Crime is a violation of people and relationships. It creates obligations to make things right. (ibid: 81) The value given by restorative justice to personalism predetermines that its response to crime will be different; it will seek to repair and restore the damage to the victims rather than pay an abstract debt to the state. Crime is an interpersonal conflict which impacts victims and offenders as well as their families and communities (Roche 2003a). It is a form of conflict between the victim and offender within the context of community. Justice involves inviting the personal participation of those parties in repairing and restoring the damage arising from crime, rather than merely upholding the authority of the state. Crime has personal dimensions which must be addressed by the parties involved, rather than by criminal justice professionals and institutions. A high value for personalism is a starting point of restorative justice, which leads naturally to reparation. 6

8 Reparation is more highly valued in the aftermath of crime in a restorative justice understanding of justice than in a retributive understanding. Declan Roche argues, The goal of any restorative response to crime is to repair the harm that has been caused (2003a: 27). Reparation involves the offender making amends for and repairing the losses and injuries caused by crime. The value of reparation is closely related to value of personalism, which acknowledges that crime is a violation of individuals and relationships. Therefore, Howard Zehr argues that crime creates obligations to make things right. Justice involves the victim, the offender, and the community in a search for solutions which promote repair, reconciliation, and reassurance (1990: 181). Losses sustained by victims from crime are not only material, but also psychological and emotional. These harms can include the loss of dignity, happiness, confidence, security, personal power, and sense of self-worth (Roche 2003a: 27). Justice is achieved by repairing the losses and injuries the victim has sustained instead of merely punishing the offender. The victim is not the only one who has suffered. The offender, the community, and the network of relationships enjoyed by the victim and offender can also be harmed. In response, restorative justice involves victims, offenders and the wider community in seeking repair of the injuries. Umbreit (1994) argues that repairing injuries and relationships to prepare for the future is more important than inflicting blame and punishment for past behaviors. 7

9 The values of personalism and reparation in the Chinese criminal justice system A criminal act is necessarily followed by punishment when it is viewed through the lens of retributive justice (Zehr 1990). An act is criminal because it is declared a crime by the ruler or government. Martin Wright argues that crime is generally associated with punishment in modern criminal justice because it is defined as an act prohibited by law for which a duly convicted offender can be punished (1996: 1). In order to evaluate the values of personalism and reparation in the Chinese criminal justice system, it is essential to refer to the provisions of the laws in China in order to have a brief view of their theory and practice. Punishment in response to crime is ubiquitous in modern criminal justice systems, and the Chinese criminal justice system is no exception. Article 1 of the Criminal Law of the People s Republic of China (CL) states that criminal law is formulated in order to punish the crime, protect the people. 2 The response of criminal law towards crime is punishment. Felkenes points out that Chinese law is clearly aimed at punishment for commission of crimes. (1989: 145) Article 13 defines crime as any act which endangers society if according to law that act should be criminally punished. 3 This definition of crime pre-determines that crime is an act that ought to be punished. Viewed through 2 The contents of the CL and CPL in this essay are translated by the author with reference to The Criminal Law and The Criminal Procedure Law of the People s Republic of China published by Foreign Languages Press in Article13 of the Criminal Law of the PRC states: All acts that endanger the sovereignty, territorial integrity and security of the state, endanger the system of the democratic dictatorship of the people, and socialist system, undermine social order and economic order, violate property owned by the state or the property collectively owned by the laboring masses, violate citizens privately-owned property, infringes upon citizens rights of the person, democratic rights and other rights, and other acts that endanger society are crimes if according to law they should be criminally punished; but if the circumstances are clearly minor and the harm is not great, they are not to be deemed crimes (translation by the author with reference to Foreign Languages Press 1984: 12) 8

10 Howard Zehr s lens, the Chinese criminal justice seems to belong to the retributive category. Crime is understood to be an act which breaches the law rather than an injury and loss inflicted by or to the offender. It follows that the response to crime in the Chinese criminal justice system focuses on punishment rather than on reparation. All court sentences in the Criminal Law are offender-centered punishments, designed to deprive the offender of rights, freedom, and even life. These punishments are divided into two categories: principal and supplementary. Principal sentences include: control (guan zhi), criminal detention (ju liu), fix-termed imprisonment (you qi tu xing), life imprisonment (wu qi tu xing) and the death penalty (si xing). Control is a sentence lasting from three months to two years which is ordered by a people s court and implemented by the local police. The convict must regularly report his activities to the local public security organ and obtain approval from it for a change in residence or departure from the area. The convict who is sentenced to control shall receive equal pay for equal work (CL, Article 39). Criminal detention is confinement in a local detention institution for a period of from fifteen days to six months, during which time those under detention are permitted to visit their homes one or two days per month. Both the sentences of control and criminal detention are criminal penalties imposed for minor offenses. Fixed-term imprisonment means imprisonment for six months to fifteen years. Convicts serving fixed-term and life imprisonment undergo reform through labor. The death penalty is the most severe penalty because it deprives offenders of their lives. 9

11 In China there are two forms of the death penalty: the death penalty suspended for two years, and the death penalty followed by immediate execution. Supplementary punishments include fines, deprivation of political rights 4 and confiscation of property 5. After considering the sentences available to courts, it is clear that all aim at punishment of the offender, although Chinese sentencing philosophy is officially educating through punishment. Felkenes observes that the purpose of criminal legislation in the People s Republic appears to be not only punishment and primarily deterrence but also correction in the sense of instilling in the offender a conscientious altitude toward labor, an exact observance of the laws, and a respect for the rules of the socialist community. (1989: 4 According to the Chinese Criminal Law, deprivation of political rights is deprivation of the following rights: 1) the right to vote and to stand for election; 2) the rights of freedom of speech, of the press, of assembly, of association, of procession and of demonstration; 3) the right to hold a position in a State organ; and 4) the right to hold a leading position in any State-owned company, enterprise, institution or people s organization. The term of deprivation of political rights is no less than one year and no more than five years, with the exception that any person who is sentenced to death or life imprisonment is deprived of political rights for life. However, when the death penalty with a suspension of execution is reduced to a fixed-term imprisonment, or when life imprisonment is reduced to a fixed term, the term of the supplementary punishment of deprivation of political rights is changed to not less than three years but not more than 10 years. For a criminal sentenced to control, the term of deprivation of political rights shall be the same as the term of control and the punishment is executed simultaneously. For a criminal who endangers the national security, deprivation of political rights is a mandatory supplementary sentence. For a criminal who seriously undermines public order by intentional homicide, rape, arson, explosion, poisoning or robbery, deprivation of political rights may be a supplementary sentence. A term of deprivation of political rights as a supplementary punishment is counted from the date on which imprisonment or criminal detention ends or from the date on which parole begins. Deprivation of political rights is in effect for the period in which the principal punishment is being executed. The public security bureau (police bureau) is responsible for the supervision and management of those who undergo the supplementary punishment of deprivation of political rights. (Article 54-58, CL). 5 In China, confiscation of property refers to confiscation of part or all of the property owned by a criminal. When confiscation of property is imposed, property that the criminal s family members own or is needed for the family members living expenses is not subject to confiscation. Furthermore, the legitimate debts incurred by the criminal before his property is confiscated could be repaid to the creditors upon request when it is necessary to use part or all of the confiscated property. (Article 59-60, CL) 10

12 146). The policy of SSCC since 1983 confirms that the primary purpose of the criminal justice policy is to deter through severe punishment. It is astonishing that there is no provision in sentencing legislation for reparation for losses and injuries sustained by the victim. On the contrary, there are stories about agreements reached by offenders and victims which are later declared illegal. The reason given is that virtually all crimes should be publicly prosecuted (except for some minor offenses). The following case illustrates this. Chang s motorbike disappeared. One day he happened to find it and took it back, but it was severely damaged. He was very angry and kept on pressuring the local police to find the thief. His neighbor, Jin, worried that he would be caught by the police, confessed to Chang. They reached an agreement in which Jin offered Chang 3000 RMB as compensation for the damage, and Chang promised not to go to the police again. However, the police did not stop their investigation, and several months later Jin was arrested for the theft. He was sentenced to nine months imprisonment and fined 1000 RMB. After Jin was released he asked Chang to return the compensation money on the grounds that he had paid for his stealing by undergoing the criminal penalty. When Chang refused, Jin filed a suit in court asking for a refund of the compensation money. However, the result of the lawsuit was not what either Chang or Jin expected. The judge determined that 11

13 their agreement had been illegal, and not only was the 3000 RMB confiscated by the court, but both Chang and Jin were fined 500 RMB respectively for reaching the illegal agreement. 6 Chinese criminal law does not currently allow victim-offender mediation in most criminal offenses, although mediation is widely used in civil disputes. It was suggested that Chang should have reported Jin to the police for criminal prosecution, and then claimed compensation in a civil action. The Criminal Procedural Law (CPL) provides that, A victim who has suffered material losses because of the defendant s criminal act has the right, during the process of criminal procedure, to bring a supplementary civil action (CPL: Article 77). However, this right is restricted to compensation claims for material losses; the court refuses to hear claims for compensation for psychological losses sustained because of the criminal act. 7 Until the Supreme Court enacted the Judicial Interpretation on Trial of Compensation for Bodily Harm in December 2003 (effective from 1 st May 2004), there were no provisions guiding determination of compensation for bodily harm. Courts were confused about the standard to use in calculating compensation, and many referred to The Measures for the Handling of Road Traffic Accidents (MHRTA) when deciding the amount of the reward. This was because MHRTA established detailed standards for determining reparation for material losses and injuries sustained in traffic accidents. There is no wonder that victims 6 News story reported in Nanfang Baoye (Southern Newspaper Industry), accessed on 1 st May, The official and written reply by the Supreme Court concerning the question whether to accept and hear the case of compensation for psychological injuries claimed by the victim of a criminal act (dated 15 July, 2002). 12

14 of rape, for example, were unhappy at having their compensation calculated according to criteria related to traffic accidents. It seems apparent that the Chinese criminal justice system does not pay much attention to victims interests in reparation. Furthermore, the offender is seldom given the opportunity to make reparations. According to law, reparation by the offender does not necessarily lead to the mitigation of the sentence. However, an offender who voluntarily surrenders after committing a crime may be given a lesser punishment (CL: Article 67). Although the principle of leniency to those who confess and severity to those who resist has been officially abandoned in current Criminal Law, it still has some influence. The system emphasizes upholding the authority of the state over reparation of the victim in the aftermath of the crime. The relationship between the state and the individual in China The reason for the low value given to personalism and reparation Chinese criminal justice system can be understood by considering the role of individuals and the state in traditional culture and in the political system in China. Both socialist and traditional theories put emphasis on order over freedom, duties over rights, and group interests over individual ones (Leng and Chiu 1985:171). After viewing the task of the Criminal Law, Leng and Chiu assert that. The main objective of the Chinese criminal justice system is to protect, first of all, the socialist order and next, the people s personal rights (1985: 123). 13

15 Confucianism stresses notions of authority, responsibility, and subordination. Along with Confucianism, Taoism and Buddhism enhance the conservative nature of Chinese society by suppressing individuality and upholding hierarchy (Troyer and Rojek 1989: 8). Traditional society was hierarchical, with the son being subordinate to the father of the family, and the father subordinate to the emperor of the state. The traditional understanding has been that the rights of the state were granted by heaven, and that individual rights are granted by the state (and are not inherent in the individual). The highest virtue traditionally was to deny the autonomy of the individual and be subject to state authority. Therefore, there was little room for the individuals to seek formal redress for grievances. There were several impressive criminal codes in ancient China. The most notable among them were the Tang Code and the Qing Code. The main functions of the codes were to punish those who violated the rule of order and the value of good conduct. Leng and Chiu (1985) argue that traditional Chinese codes paid less attention to protection of individual interests than with the maintenance of the social and political order, which meant that crime should be punished by the state. While this may seem to contradict Confucian legal theory, which advocates ruling by moral education, with the law (punishment) used only as the last resort, every coin has two sides. If an individual failed to be educated by moral virtue, he deserved a severe punishment, leaving the state free from moral blame for punishing the culprit (Chen and Xiong 2004). Social harmony was maintained because of the deterrent power of severe punishment. This is also part of the reason why Confucianism came to dominate Chinese history. 14

16 Current communist philosophy in China advocates sacrificing individual interests to the collective and state interests. According to the Criminal Law, the task of the Chinese criminal justice system is first to protect the socialist order, then the people s personal rights. Therefore, crime is considered to be defiance against the ruling order of the state rather than harm to the individual. The theme of the Chinese criminal justice system States monopolize the power to punish crime in modern criminal justice systems. This is true in China as it is in other countries. However, to have a thorough understanding of the Chinese criminal justice system, it is necessary to understand the role of the Communist Party in setting and implementing criminal justice policy. Power in Chinese criminal justice resides in the Communist Party, government and power organs [that is, criminal justice institutions] (Qu: 2002: 4). Officially, the government establishes criminal justice policy and oversees the operations of criminal justice institutions such as courts, public prosecution and the police. But all levels of this structure are led by the Communist Party. Criminal justice policy is supervised by the Communist Party Committee, which also attends to implementation of that policy throughout the system. In practice, the party can even intervene in specific criminal proceedings through the local Political-Legal Committee of the Party. Although the Political-Legal Committee is in name an organ of co-ordination among the police, procuracy and courts, it is in reality an organ of leadership 15

17 for all three. It involves itself directly in adjudication work, and in some cases decides the verdict itself. (Sun 1989, in Clarke and Feinerman 1995: 140). Although the party does not participate in the daily work of criminal justice institutions, decisions by the Communist Party committee have great influence. It is not necessary that the party committee gives instruction to every specific case, however in dealing with serious and complicated criminal cases, the instruction of the party committee should be asked for (G. Chen 1996; Chen and Yan 1999, in Qu 2002: 125). Although retribution is ubiquitous in human society, it has a special meaning to the Chinese people. Since individuals were not always well protected in hierarchical, ancient Chinese society, victims often felt helpless, particularly when facing a powerful offender. In those circumstances, victims could rely only on the expectation that the offender would be punished by the state and even the gods. There is an old Chinese saying: A good person deserves a good return, an evil person receives retribution. That traditional retributive psychology has had a great influence on the current criminal justice system. The deterrent effect of punishment is also highly regarded in the Chinese criminal justice system. An old Chinese saying is, Kill a chicken to warn the monkeys. Bingsong He, a famous criminologist in China, described China s approach to preventing and controlling crime in this way: A focused legal policy that strikes at serious criminal activity is the core of a comprehensive crime policy (1992: 251). The theme of Chinese criminal 16

18 justice policy is that severe punishment will not only restrain offenders from further offenses but also deter potential offenders. The supplementary civil action is an effective channel for victims to use to claim compensation. These claims are adjudicated together with the criminal proceedings. If the offender is found guilty of the offense, the claim for compensation is automatically established, which reduces the victim s burden. Furthermore, victims are exempt from litigation fees. However, the court does not provide compensation for psychological harms sustained as a result of the criminal offense. The rationale for this is that all crime causes a certain amount of psychological harm to victims and that court-inflicted punishment of the offender provides psychological relief. If claims for compensation for psychological harm were considered during criminal proceedings, courts would not be able to proceed efficiently because of the complexity of such claims. It is apparent from this explanation that the system focuses more on how to effectively punish the offender than on compensation of the victims. Xinjiu Qu (2002) argues that the rights of individuals even of victims are subordinate to the public right to control crime when there is a conflict between the two. Conclusion Although the state monopolizes the power of criminal penalty in modern criminal justice systems, the Chinese criminal justice system has its special characteristics. Its theme its governing policy is to control crime by using punishment to deter. Both traditional 17

19 culture and communist philosophy uphold the authority of the state while disapproving the pursuit of individual rights. 18

20 PART 2: THE VALUE OF REINTEGRATION Introduction Reintegration 8 is the process of re-entry into community life as a whole, contributing, productive person (Van Ness and Strong 1997: 116). This process requires not only the offender expressing remorse and repairing injuries and harms, but also respect and support by the community (and perhaps even the victim). The restorative response to crime emphasizes reintegration of the offender into the community, which helps to reduce crime (Roche 2003a). Positive shame facilitates reintegration of the offender and keeps him from recidivism (Braithwaite 1989). On the other hand, a stigmatizing response by the criminal justice system hinders the offender s reintegration into the community and can lead to higher crime rates. The Chinese criminal justice system is often criticized for severity of punishment and abuse of human rights. However, the influence of Confucian culture, which puts great emphasis on community harmony, and the practice of bang jiao, clearly demonstrate that restorative ideas are present, albeit overshadowed by punitive Chinese criminal justice practice. The interdependency, the shaming, the communitarian mobilization to resocialize wrongdoers (Braithwaite 1989: 65) are also ingredients of traditional Chinese 8 In broad sense, reintegration in restorative justice should encompass the restoration of victims, offenders, and communities. This essay adopts the definition of four values of restorative justice given by Declan Roche (2003). Therefore, reintegration of victims is discussed in the part on reparation. The reintegration referred here is primarily done with an eye to prevent future offending (ibid: 29). 19

21 society. Braithwaite notes that it is a pity that so few Western intellectuals are engaged with the possibilities for recovering, understanding, and preserving the virtues of Chinese restorative justice while studying how to check its abuses with a liberalizing rule of law (2002: 22). Part 2 of this essay uses the restorative value of reintegration to continue its audit of the Chinese criminal justice system. Firstly, it briefly examines the extent of punitive legal practice in China. Secondly, it correlates the idea of reintegrative shaming with Confucian culture in China. Thirdly, it evaluates the extent to which practices of the Chinese criminal justice system reflect reintegrative values. Punishment in the Chinese criminal justice system It appears to be taken for granted internationally that Chinese criminal justice is punitive and retributive. It is true that few offenders avoid criminal penalties, but not all deviances in China are criminal offenses. Wrongdoing is divided into two main categories: infringement of law (wei fa) and crime (fan zui). Criminal law deals with the most serious offenders. Those who are not serious offenders are subject to the Security Administration Punishment Regulations (SAPR) or re-education through labor (RTL). Punishments under the SARP are: warning, a fine up to 200 RMB and detention for 15 days. Servitude for the RTL is generally from one to three years, with a maximum of four years under special circumstances. SARP and RTL punishments are administrative orders decided by the police without trial. The RTL is controversial because it can be even more severe than some criminal sentences although it is considered an administrative sanction. 20

22 If the matter is subject to the formal criminal justice system, the police will usually transfer offenders for public prosecution. During the public prosecution stage, offenders can be discharged only for minor offenses where further prosecution is considered not necessary or on the grounds of insufficient evidence (CPL: Article 142). Once the matter proceeds to sentencing, most of the available sentences are custodial, although the CL does prescribe suspension of sentence for criminals whose social danger is small. In practice, however, there are few diversions or non-custodial sentences. Furthermore, short-term custodial sentences are widely used while non-custodial sentences like fines are seldom used. In the period from 1993 to 1997, 58.07% of custodial sentences were for less than five years; the percentage in 1998 was (quoted in Wu et al, 2003). China also attracts criticism for its use of the death penalty. China is said to be one of the countries in which death penalty is most often used. There are 68 crimes in which the death penalty is allowed. In 2002, 1060 offenders were given a death sentence (statistics quoted from Liu 2004). The policy of SSCC, adopted since 1983, calls for swift case processing, widely publicized trials and increased criminal penalties. Criminal procedures have been modified to allow for faster prosecution and harsher punishment in order to deter potential offenders. Longer incarceration and even the death penalty are considered effective ways of controlling crime. 21

23 Reintegrative shame and Confucian culture There is a great similarity between Confucian culture and the reintegrative shaming theory of John Braithwaite. He argues that Confucius is the most influential thinker about restorative justice the world has known (Braithwaite 2002: 20). In Crime, Shame and Reintegration, John Braithwaite (1989) emphasizes the power of reintegrative shame in controlling crime. He argues that the key to crime prevention is a cultural commitment to shaming. He distinguishes reintegrative shaming from stigmatization. By reintegrative shaming, he means expressions of community disapproval, which may range from mild rebuke to degradation ceremonies, followed by gestures of reacceptance into the community of law abiding citizens (ibid: 55). Through this process, the offender is decertified as deviant and reintegrated into society. The key to reintegrative shaming is to de-label the offender, which is done under the assumption that the disapproved behavior is transient, performed by an essentially good person (ibid). The shame is directed towards the deviance without stigmatizing the offender. The sense of shame is what prevents the offender from future offending. On the other hand, stigmatization labels the person a deviant and therefore an outcast of the community. Such an offender will lose his sense of shame, which leads to future offending. Braithwaite further argues that the fundamental societal conditions conducive to cultural processes of reintegrative shaming are communitarianism and interdependency (ibid: 84). He points to the low crime rate in Japan, in which there is a strong sense of community and interdependency, to argue that reintegrative shame is effective in 22

24 controlling crime. Informal sanctions by relatives and community members are more effective in preventing crime and reaching harmony in the community than is stigmatization imposed by legal institutions. There is a strong correlation, he argues, between crime rates and the power of positive shame. Although China has gone through great changes, the ideology of Confucian culture continues to influence Chinese thinking and behavior. The key values of Confucianism resonate with the reintegrative value of restorative justice although it contains a dangerous patriarchal and hierarchic communitarianism (Braithwaite 2002: 20). The values of Confucianism are respectively de (virtues), li (principles of good conduct), he (harmony) and ren (love, humanity). Among them the value of he (harmony) is most prominent. Harmony s highest achievement is to encourage people not to litigate. Under Confucianism social control is best achieved through de (virtues) and li (principles of good conduct), while punishment should be used only as a last resort. Everyone is understood to be able to cultivate virtue through moral education. Confucianism maintains that the innate force that prevents a man from committing crimes is his sense of shame (Hsu 1932: 161). However severe the punishment is, people will tend to evade the law and forget the shame. But a conscience developed by moral education will provoke shame, which does prevent people from committing crime. According to Confucianism, compliance with the law is not best achieved by punishment, but instead by cultivating individual conscience (Greer and Lim 1998: 85). Conscience helps people maintain self-respect, which encourages people to behave properly. 23

25 The value of ren (love of humanity) holds that people should not only care for others but also be ready to forgive them. It implies that people hate the deeds of the offender while showing care for him at the same time. Confucianism provides an ideal of social harmony emphasizing an individual s obligation to the community (Greer and Lim 1998: 86). The duties to community overwhelm the rights of individual. Harmony in the community can be maintained by contributions of people with good virtues. In other words, Confucianism strongly believes in the transformative capacity of moral education in the community setting. Proponents of Confucianism state that the highest ideal of criminal justice is that of reform instead of punishment (Hsu 1932: 160). Confucianism advocates the rule of virtue over the rule of law, just as Braithwaite (1989) argues that shaming has a great advantage over formal punishment. Confucianism has had a great influence on rehabilitation practice in the prison as well (Dutton and Xu 1998). The value of ren (benevolence) and de (virtue) in Confucian culture are clearly reflected in particular notions of the role of prison. For example, gan hua means helping people to change through [moral] persuasion or setting an example by which to transform people and help them to change (ibid: 299). Through gan hua, prisoners are encouraged to face their wrongdoings, an experience that provokes shame. This kind of shame is useful not only in helping prisoners empathize with their victims, but also in facilitating their rehabilitation. Dutton and Xu (1998) suggest that the process of gan hua resonates with Braithwaite s reintegrative shaming. 24

26 Furthermore, Confucian culture strongly emphasizes family ethics. Family has traditionally been the informal social control institution in China. Traditional culture emphasizes people s close ties to their families. In traditional culture, mian zi, face, is considered very important to the human relationship. Losing one s face means to bring shame to oneself. A wrongdoer is considered to have lost not only his own face but also the face of his whole family. There is therefore a moral imperative for relatives of a wrongdoer to assist each other in resolving the harm. Family support is vital so that the wrongdoer is able to face the shame positively and express repentance for his wrongdoing. John Braithwaite (1989) argues that low crime societies are characterized by social cohesiveness, a strong family system and informal social control. In China, family social control is influential. Furthermore, the ideology of interdependency and communitarianism in Chinese society and culture are conducive to public support and enthusiasm in dealing with any problems affecting the community (X. Chen 2002). Bang jiao reintegrative practice in China In order to understand the role of reintegration in the Chinese criminal justice system, it is important to offer a brief view of bang jiao practice at the grassroots level, which plays a very important role in the rehabilitation of offenders and delinquents. Bang means help and jiao means education. Bang jiao draws on the participation of local community members to help educate deviants and former offenders so that they can be reintegrated into the community and kept from recidivating. In Confucianism, people are believed to be inherently righteous, albeit corruptible. Therefore, moral education is the best way to reform and restore the good character of individuals (Bracey 1989). The key to 25

27 rehabilitation is education rather than punishment. Bang jiao teams not only help delinquents and released offenders develop good conduct and a moral conscience, but they are also ready to intervene and provide support when those individuals face difficulties, such as financial problems, lack of housing, family conflicts and other personal problems. This intervention is not considered a violation of privacy; instead, it is viewed as a good way of promoting harmony in the community. It is the moral persuasion and care for released offenders and minor delinquents that provoke their consciences. The provoked conscience in turn induces remorse, which results in shame, which facilitates reintegration into the community. Braithwaite concluded that bang jiao practices tend to start as rather stigmatizing encounters but to end as reintegrative ones (2002: 20). Bang jiao practice is consistent with the communist philosophy of social control through mass line at the grassroots level. 9 It aims at promoting moral virtues and a sense of community through the involvement of the local community in rehabilitating and reintegrating the delinquents. Its methods vary according to its objectives and structures 9 The mass line is the primary method of revolutionary leadership of the masses, which is employed by the most conscious and best organized section of the masses, the proletarian party. It is a reiterative method, applied over and over again, which step by step advances the interests of the masses, and in particular their central interest within bourgeois society, namely, advancing towards proletarian revolution. Each iteration may be viewed as a three step process: 1) gathering the diverse ideas of the masses; 2) processing or concentrating these ideas from the perspective of revolutionary Marxism, in light of the long-term, ultimate interests of the masses (which the masses themselves may sometimes only dimly perceive), and in light of a scientific analysis of the objective situation; and 3) returning these concentrated ideas to the masses in the form of a political line which will actually advance the mass struggle toward revolution. Because the mass line starts with the diverse ideas of the masses, and returns the concentrated ideas to the masses, it is also known as the method of "from the masses, to the masses". Though implicit in Marxism from the beginning, the mass line was raised to the level of conscious theory primarily by Mao Zedong. ( downloaded 14 September 2005) 26

28 (Lu, 1999; Wong 1999). One feature they share in common is criticism of the delinquency of the delinquents and reintegration by the local community. There is a traditional Chinese saying, A delinquent s reintegration is worth more than thousands of gold (lang zi hui tou jin bu huan). Influenced by the benevolent (ren) value of Confucianism, Chinese people consider forgiveness a good virtue. Neighborhood meetings are often organized for public criticism and self criticism of the delinquents in order to help them develop social morality and abandon their antisocial subculture. It is understood as well that moral virtue cannot be maintained without a proper lifestyle. Bang jiao groups visit their subjects regularly for heart-to-heart talks to help them solve psychological and practical living problems. Bang jiao strategies consist of introducing legitimate opportunities for them, and (re)establishing normal family and/or neighborhood ties, even if it means for bang jiao members to play match-makers (Lu 1999: 121). The community rehabilitation experiment programs in Shanghai in recent years have aroused great public interest (Zhu and Zhang 2003). Participants are criminals who are either under the sentence of control (guan zhi), on parole, or deprived of political rights. These criminals used to be supervised in the community by local police officers. In order to better reintegrate them into the community, and because of a shortage of police resources, the new programs are now organized by prison officers and community workers who have received training in community rehabilitation. The participants are required to take part in community service for no less than 18 hours per month as well as in moral education and vocational training. Through participation in community service, 27

29 the offenders regain acceptance and respect from the community. Moral education recultivates conscience in order to provoke shame as a tool of reintegration into the community. Vocational training helps the offenders be capable of seeking jobs, which reinforces their self-esteem as well as leads to financial independence. In addition, the community working group regularly communicates with participants to assist them in solving personal difficulties, such as housing, job seeking, financial and emotional problems. It is reported that the first 104 participants have been completely reintegrated into the community with no recidivism. While bang jiao practice has obvious merits, this figure should be considered with care because of the problem of selection bias in the sample. Bang jiao practice is in fact a process of positively shaming the delinquents misbehaviors while supporting their reintegration into the community. Hong Lu (1999) points out that bang jiao practice in China resonates with the reintegrative shaming theory of John Braithwaite. She uses the internal and external settings of both bang jiao practice and reintegrative shame theory. The bang jiao group consists of members of the local community, and provides an intimate external setting in which reintegrative shaming can be effective. The traditional emphasis on the development of moral ethics provides the internal setting in which the offenders consciences are stimulated into a commitment to rehabilitation. 28

30 Conclusion In conclusion, restorative values are present and active in the Chinese criminal justice system, although it cannot escape the deficits of modern retributive criminal justice philosophy. Declan Roche (2002: 518) suggests that this may usually be the case: One consequence of viewing restorative justice in terms of process and values is that it is less accurate to ask whether a program is or is not restorative, than to ask in what ways a program is restorative. Confucian cultural influences resonate greatly with the reintegrative shaming theory of one of the key restorative justice advocates, John Braithwaite. Social control at the grassroots level in China keeps every individual connected to the community and empowers it to help individuals resolve conflicts (although recent urbanization and industrialization have in some ways undermined the role of the community). Reintegrative practices such as bang jiao fully involve the community in reintegrating offenders by provoking their sense of shame. This practice resonates with what Braithwaite calls preventing crime through mobilizing social movements (Braithwaite 1992: 6, quoted in Hughes 1998: 122). Both the Confucian culture and Braithwaite s reintegrative shaming emphasize the importance of awakening the offenders conscience through the use of shame in the process of reintegration. 29