SAN FRANCISCO (September 2, 2011) – Sweeping amendments to China’s Criminal Procedure Law have been opened for public comment by the National People’s Congress. Among the most significant of the proposed changes is the addition of a section on juvenile cases. (China defines juveniles as individuals between the ages of 14 and 18, exclusive.) Reflecting years of inquiry into both domestic experiments and international practice, the proposed amendments represent the biggest improvement in the treatment of juvenile offenders within China’s criminal justice system since the founding of the People’s Republic in 1949.
The following are the most significant developments (The text and Dui Hua’s complete translation of the juvenile cases section can be read here or downloaded here):
1) Establishment of a mechanism to exempt certain juvenile criminal suspects from prosecution and incarceration. If implemented, this is likely to result in a sharp reduction of the number of juveniles in detention. At present more than 70 percent of juveniles detained by public security organs are eventually incarcerated in either juvenile work-study camps or juvenile prisons. The new mechanism, called “conditional non-prosecution,” is modeled after systems of restorative justice known in the West as “diversion.”
2) Introduction of a national policy to seal the detention, arrest, and incarceration records of most juvenile offenders. At present, in all but a few locales, juvenile criminal records stay with individuals for life. Similar to US practice, the amended law provides for all records, with the exception of those for certain crimes, to be sealed after the completion of the probation period called for in conditional non-prosecution orders issued by the Procuratorate, provided that no new crimes are committed and the juvenile observes the conditions of non-prosecution;
3) Greater use of behavioral and psychological assessments; and
4) Improved protections for juvenile detainees facing interrogation and trial. These include provisions that adult representatives or relatives be present during interrogation and trial, that lawyers be appointed for defendants without defense counsel, that juveniles be detained and incarcerated in separate, non-adult facilities (current practice in prisons but less frequently observed in detention centers), and that female detainees be interrogated in the presence of female officers. The amended law retains the requirement that trials of juvenile suspects be closed to the public.
Spearheaded by the Supreme People’s Court Office of Juvenile Justice Reform and drawing on the experiences and recommendations of central law enforcement ministries, think-tanks, and local governments, the reforms introduced in the amended Criminal Procedure Law also reflect a robust program of international exchanges. Chinese officials working on juvenile justice reform have cooperated with such distinguished international experts as Dr. Jean Zermatten, chair of the United Nations Committee on the Rights of the Child, and have mounted study tours of countries including Australia, Canada, the United Kingdom, and the United States.
Of particular value have been exchanges with American juvenile judges and law enforcement practitioners including probation officers, public defenders, mediators, and detention officers. Dui Hua, with the support of the John D. and Catherine T. MacArthur Foundation and Hong Kong’s Fu Tak Iam Foundation, hosted a juvenile justice delegation from the Supreme People’s Court in October 2008 and sent a delegation to China, hosted by the Supreme People’s Court, in May 2010. American and Chinese judges and other experts visited each other’s courts and detention facilities, conducted mock trials, and engaged in wide-ranging discussions on virtually all of the improvements introduced in the amended Criminal Procedure Law.
“The value of dialogue between China and the West in the field of juvenile justice is readily apparent in the Criminal Procedure Law’s new section on the handling of juvenile cases,” noted John Kamm, executive director of Dui Hua. “Too often dialogue on human rights questions is a dialogue of the deaf, with both sides confronting each other from fixed positions. In contrast to productive exchanges on the rights of juveniles in the criminal justice system, these exercises in mutual recrimination have yielded little.”
San Francisco Superior Court Judge Lillian Sing, who led the 2010 delegation to China, remarked: “My colleagues and I are proud to have played a part in the introduction of significant reforms in the way juvenile suspects, defendants, and detainees are handled in China’s criminal justice system. Dui Hua and its partners look forward to continuing our cooperation with the Supreme People’s Court Office of Juvenile Justice Reform. We have much to learn from each other”