Reform in China

I just returned from a fascinating 6-day trip to China, where I attended a conference on efforts to reform the system of punishments for low-level offenders. Read More...

The conference was co-organized by the United Nations High Commissioner of Human Rights and an elite academic institution based in Beijing, the Chinese Academy of Social Sciences. China is under increasing pressure to change its legal system to conform to international norms, which include providing basic due process rights to defendants. The challenge is that according to Chinese law, many offenses that we would consider misdemeanors are not considered "crimes" and are not processed by the court system. Instead most drug users, prostitutes and petty thieves are punished by administrative agencies that are controlled by the police. In practice, this means that low-level offenders are given very harsh punishments, such as three-year sentences to work camps, through China's "re-education through labor" system. It also means that there is a potential loophole to work out: do international human rights standards for defendants apply to a system that is not judicial in nature?

The debate, then, focuses on whether the alternative, non-judicial track for minor offenses should be reformed or abolished completely. Abolition is unlikely at this point, so the question becomes how the system should be reformed. Despite its rich and very long history, China has a very young legal system: it was only re-created in 1979, the same year that China officially opened to the West. Amazingly enough for a country with 1.3 billion residents, China only has about 130,000 trained lawyers, fewer than the state of California. (To put that number in perspective, however, China had 3,000 lawyers in 1978).

It was very exciting (and at times, frustrating) to be in a country that is still grappling with very basic questions about the law. China has very little written law and what is written down is vague and open to interpretation. The unfortunate thing for legal reformers is that China also has a very rule-bound tradition, so this leads to considerable paralysis. In China, if the government doesn't expressly allow something to happen, people are very reluctant to pursue change. For example, I kept getting questions about the legal authority the Center has to pursue its reforms. It was a hard question to answer, because it's not really how we think: generally speaking, we try to change things unless the law expressly prohibits us from doing so!

Much of the discussion at the conference I attended centered around how crime itself is defined. Although almost all of the participants felt that extending judicial review to minor offenses was important to prevent abuses of police power, there was also concern about the potential stigmatizing effects of the "criminal" label. Order and conformity are more important values in China than freedom and individual rights: being called a criminal could result in someone losing a marriage, a job and a place in the community. Therefore, there are some advantages to maintaining a separation between "criminal" and "non-criminal" offenses and keeping cases out of the court system. Add to this the reality that China's courts would be overwhelmed if minor cases were added to dockets: one estimate I heard is that adding re-education through labor cases to the courts would result in a 50 percent increase in the criminal caseload.

In addition to attending the conference, I also participated in three roundtable events organized by a non-profit organization, International Bridges to Justice, that has a branch in China run by two former Manhattan Legal Aid attorneys. There I met with academics and practitioners who are wrestling with issues involving youth crime. In China, the law allows for non-custodial sentences for young people if the family or school agrees to discipline the offender. The problem is that families and schools are often reluctant and/or unable to take on this burden. There is very little tradition of "community" supervision in China, so there is no one available to pick up the slack. Schools are very exam-bound and elitist, so they have little interest in helping problem kids. Families are under tremendous economic pressure, and many young people are "migrants" who have moved from rural areas to urban areas without their families in search of a job. (About 13 percent of Chinese citizens are migrants, and the migrant issue has become a huge political, social and moral issue for the country.) [Here are some first person stories about rural to urban migration in different parts of the world, from the BBC. -Ben]

One final note: I came away from China with a very different impression of the country and its citizens that I had before I arrived. It's true that censorship exists in China (for example, a CNN report on Tibet I was watching in my hotel room was suddenly blacked out mid-broadcast) and the national leaders are not democratically elected. Nonetheless, I was incredibly impressed by the openness to new ideas and sincerity of the people I met to improving conditions in the country. For all their problems, there is a real sense of optimism and energy about China, and government officials seem to be genuine in pursuing reforms in all areas of Chinese life, albeit in a technocratic way. This means, among other things, that there are some great opportunities for the Center in advising China as it tries to re-build its legal system.


*Banned in China!* I just found out from a friend of mine who's living in China that our blog is censored by the "Great Firewall of China." I'm sure that the content on our blog has dozens of keywords the trigger the governments blocking software - this frank discussion of the Chinese judicial system won't help matters!