By some measures, China has made meaningful strides in its criminal justice and penal systems by adopting and enforcing laws that better protect the human rights of its citizens. Concerns of rights defenders and legal experts, such as the torture of detainees and the world’s most extensive use of capital punishment, are being addressed in China, if only in degrees. While acknowledging progress, activists seek further reforms where unlawful or controversial practices are still pervasive, as with the lack of due process for court proceedings and the hotly debated issue of arbitrary detention.

In this vein, one system often condemned inside China and around the world is “re-education through labor” (RTL, abbreviated in Chinese as laojiao), an administrative punishment for minor offenses that do not meet the threshold for prosecution under Chinese law. Administered by the Ministry of Justice (MOJ) but with penalties meted out by the Ministry of Public Security, RTL allows “management committees” from the public security system to sentence individuals to terms of up to four years. Those sent to RTL do not have a right to counsel or open trial before a judge, and it is not required that formal charges be filed against them. Despite these conditions, the system is as official as any in China, being based on regulations approved and promulgated by the Standing Committee of the National People’s Congress (NPC) and the State Council.

RTL received widespread public attention during the 2008 Olympics, when police sentenced two elderly Chinese women to RTL—an order that was later rescinded—after they applied to petition in Beijing over eviction from their homes. But RTL was being censured by human rights watchers long before this. In 1993, the UN Working Group on Arbitrary Detention determined that RTL detention was an inherently arbitrary deprivation of freedom. Ever since, the Chinese government has been pressed to make legislative changes that respect international human rights law. Over the past five years, draft legislation to “fundamentally reform” RTL has been presented for discussion by the NPC’s Standing Committee, but so far no substantial policy changes have been implemented.

RTL History, Nature & Numbers

Though first used in 1955, RTL was officially put into practice in 1957 as part of the anti-rightist campaigns to “reeducate” people accused of light offenses that were considered “counterrevolutionary,” such as failure to carry out work assignments. RTL punishments were also doled out to petty thieves, drug traffickers and addicts, prostitutes and their customers, and others who exhibited “social problems.” In the 1980s, a larger scope of criminal offenses in China’s changing society and a wave of anti-crime campaigns made RTL a convenient tool for squelching dissent and dispensing penalties to citizens who were seen as threats to social or political order. Along with those who commit minor crimes—drug offenders still make up the largest single group sentenced to RTL—thousands of Chinese every year who petition to express grievances, engage in rights defense work, or take part in outlawed “cult” or religious activities (like Falun Gong and house churches) are locked away in RTL facilities.

As in China’s penal system, police coercion has led to forced confessions from some individuals sentenced to RTL. Detainees can appeal through a petition for administrative review or by filing a lawsuit with a court. But such appeals are largely ineffective since reviews and litigation are overseen by personnel from the public security system, which issues the detention orders. In addition, some lawyers have reported intimidation for representing RTL detainees.

Mostly known through personal accounts, life in RTL can vary widely according to facility and detainee. Extremely long work days—even lengthier than what Chinese law sets for those in prison—may be spent manufacturing goods for international markets or in construction or agricultural production. Some experience a severe decline in health during detention, where medical care can be rare or non-existent, as well as torture and abuse. In fact, in 2003, the beating death of an inmate in an RTL facility in Liaoning Province, and another incident in which a man died while under “custody and repatriation” (shourong qiansong) in Guangdong, sparked calls within China to reform RTL. Negative media attention on the latter case influenced the government to dismantle “custody and repatriation,” which was used to hold those without temporary residency or living permits before they could be sent back to their location of lawful residence or work.

After release, RTL detainees—just like those who complete prison terms—become part of the “targeted population” and face ongoing police surveillance. However, the Chinese government describes life in and after RTL far more positively, claiming prisoners are treated humanely and that many former detainees have received government funds or help finding jobs after RTL.

As with many official Chinese statistics, certain RTL data are classified as state secrets. But some statistics are available on the MOJ website, which listed the number of total RTL facilities (350) and prisoners (160,000) as of the end of 2008. Research by NGOs and others has unearthed further data (see graph).

In Dui Hua’s prisoner database, nearly one-fifth of the more than 5,000 prisoners known or believed to be detained in China have been sentenced to RTL. And just over 20 percent of the 18,000-plus prisoners recorded by Dui Hua have served RTL sentences. Of these, a number of people, including former June Fourth prisoners, have also been imprisoned for strictly handled political crimes.

Calls for Reform, Voices for Retention

There is no shortage of reasons why RTL has been targeted for reform, particularly as the terms of administration and sentencing have grown increasingly broad and vague, with elastic regulations enacted in 1979 expanding the categories of actions punishable through the system. RTL violates the guaranteed rights of access to a lawyer and an open hearing contained in China’s Criminal Procedure Law. Furthermore, the Legislation Law adopted in 2000 clarifies that “coercive measures and penalties involving deprivations of citizens’ political rights or restriction of their personal liberty” shall “only be governed by law”—not merely the use of regulations. A practical argument aimed directly at police conduct is that RTL exacerbates police abuses that so often go unchecked, and that it contributes to the very social instability it is intended to prevent.

The basis for much of the international opposition to RTL is that it runs counter to prohibitions on arbitrary detention and forced labor laid out in the International Covenant on Civil and Political Rights (ICCPR), which China signed in 1998 but has not ratified. This February, many countries and represented bodies called for the abolition or reform of RTL at China’s Universal Periodic Review (UPR) of its human rights record before the UN Human Rights Council. China responded that its State Council has decided to formulate a law on “correctional services”—the term the government uses in comparing RTL to systems in other countries—and that reform of RTL is “envisaged” as part of this new law.

But this has not led to a flood of optimism, since so many suggested reforms have failed to address RTL’s violation of basic rights or have simply gone unfulfilled, like reducing the duration of terms, removing gates and bars, and changing the name of facilities (to “correctional centers”)—all of which were announced in 2007, when the Chinese government said it would abolish the present system. Among purely administrative suggestions, some Chinese NGOs and ministries, including the Ministry of Health and the Ministry of Civil Affairs, have proposed running aspects of RTL. More substantive proposals call for court hearings and representation by a lawyer, but such ideas have not been put in place.

Supporters of RTL say it gives police flexibility to punish minor offenders in a way that forgoes the bureaucracy of overburdened criminal courts. It has also been argued that Chinese police, often under-staffed and ill-equipped to deal with increasing crime, would lose an effective tool for maintaining social order if RTL were heavily reduced or abolished. And some pragmatists, while not openly condoning the system, point out that RTL sentences can be preferable to prison terms, since individuals may serve longer in prison than in RTL for similar offenses.

Visible Signs of “Reform”?

While NPC discussions on RTL have not yielded official results, the use of RTL appears to be declining. At China’s UPR, a Chinese MOJ representative stated that, at the end of 2008, approximately 190,000 individuals were being held in 320 RTL facilities. Though these statistics differ from those on the MOJ website, the RTL detainee total is down sharply from a reported 310,000 individuals held ten years ago.

Much of the decrease is due to some drug-related offenders being sent to rehabilitation facilities. There may also be an effort to scale back RTL prior to enactment of laws that would alter or abolish the practice. In addition, it is conceivable that more individuals charged with offenses that “disturb the social order” who would have once been sentenced to RTL, like Falun Gong practitioners, are having their cases heard in criminal courts.

China’s National Human Rights Action Plan for 2009–2010, released in April, may initiate changes to RTL. On paper, the plan looks to “strengthen work to improve democracy and the rule of law” and better protect civil and political rights—ideal steps for reform or abolition of RTL. But even in China, much less abroad, such goals are seen as easily uttered by the government but far harder to actually achieve.

RTL’s Legacy As Systemic Flaw

It is tempting to think the diminished use of RTL represents a step toward abolishing the system—to be replaced by misdemeanor courts and alternative punishments like community service—and even ending arbitrary detention altogether. This view is probably too optimistic, as there are a wide array of facilities in China where people are placed without trial: “drug rehabilitation centers,” “psychiatric detention facilities,” “custody and education” centers for pimps and prostitutes, “work-study camps” for juvenile offenders, and “legal education centers” for “seriously poisoned” Falun Gong practitioners, and even “old people’s homes” for clergy of the underground Catholic Church. In addition, migrant workers and petitioners can be confined in “black jails” before being sent back to their hometowns.

China simply cannot develop into a rule-of-law society if it keeps operating RTL. Whatever RTL’s eventual fate, its imprint on Chinese society has been profound, with millions having been sentenced to RTL in violation of their rights. From its inception, RTL has cast a dark shadow over China—but probably none darker than it does today, when more citizens are demanding the institutions and systems that deal with criminal allegations do so with greater legitimacy and transparency than ever before.