Lv Hongjiao

Sichuan Normal University

Abstract: Although it has stipulated a treatment system for juvenile delinquents in the existing law of China, the related provisions are scattered throughout different legal norms and need to be integrated and perfected. The existing treatment of juvenile delinquents, including administrative treatment and judicial treatment, mainly faces the following problems: (a) The treatment measures are too rough and simple to effectively combine punishment with leniency effectively; (b) The hierarchical treatment measures are not perfect enough procedurally; (c) The non-criminal treatment measures do not produce the desired effect. Based on a good understanding of the basic connotations of the hierarchical treatment system for juvenile delinquents, it is necessary to take the following steps: (a) Treat the juvenile delinquents in appropriate ways according to the subject, specific content, and severity of juvenile delinquencies; (b) Take highly-targeted and flexible treatment measures at different stages of criminal proceedings, namely, take criminal coercive measures against juvenile delinquents in a prudent manner and impose criminal punishments against them in a relatively lenient manner, to better help them return to society.

Keywords: juvenile delinquent, hierarchical treatment, problem, perfection

Introduction

TheWork Plan on Procuratorial Reform for 2018 to 2022released by the Supreme People’s Procuratorate of People’s Republic of China resolves to develop a hierarchical system for juvenile delinquents, namely, juveniles who commit crimes or do wrongs. Here, the word “wrong” contained in “criminous and wrong-doing juveniles” refers to “unlawful or wrongful acts” in a legal sense rather than “fault” in a general sense. In terms of the age of criminal responsibility, juvenile delinquents can be classified into juvenile delinquents reaching the age of criminal responsibility and those under the age of criminal responsibility.

Although China has made certain institutional arrangements for the treatment of juvenile delinquencies, such institutional arrangements are yet to be perfected and are mainly scattered in related legal norms such asCriminal Law,Criminal Procedure Law,Law of the People’s Republic of China on the Protection of Minors(hereinafter referred to as the newLaw on the Protection of Minors), andLaw on the Prevention of Juvenile Delinquency. In terms of treatment means, the treatment of juvenile delinquents mainly includes administrative treatment (e.g., correctional education by special schools, public security punishment, and admonition) and judicial treatment (e.g., coercive measure at the criminal proceedings level, and custodial penalty and non-custodial penalty at the criminal penalty level such as community sentence). China would like to developed a perfect judicial treatment system for juvenile delinquents. Every time extreme juvenile delinquency cases occur, there is a strong appeal in society for increasing the intensity of criminal punishment on juvenile delinquents to make a deterrent effect. Hence, it is necessary to develop a perfect treatment system for juvenile delinquents and take measures (e.g., correctional education and judicial treatment) suited to the characteristics of juveniles, thus helping them return to society.

Connotation and Practical Significance of Hierarchical Treatment of Juvenile Delinquents

Connotation of Juvenile Delinquents and the Status Quo of Treatment for Them

The definition of “juvenile delinquents” varies from country to country and region to region. Japan’sJuvenile Lawrefers to juvenile delinquents as delinquent juveniles, including criminal juveniles, juveniles with illegal behaviors, and problematic juveniles; some US jurists argued that juvenile delinquencies include criminal acts (e.g., theft of property), unlawful acts (e.g., staying out after curfew or excessive alcohol drinking), and bad behaviors (e.g., violations of moral norms, legal norms, rules and regulations of social organizations, and social customs). In accordance with related provisions of theLaw on the Prevention ofJuvenile Delinquency(Revision 2020), juvenile delinquents mainly include juveniles with bad behaviors, juveniles with severe bad behaviors, juveniles with behaviors specified by theCriminal Law, and juveniles under the age of criminal responsibility who are involved in criminal cases but not criminally punishable. In brief, juvenile delinquents include criminous juveniles and wrong-doing juveniles. Criminous juveniles refer to juveniles under the age of 18 who have violated theCriminal Lawand reached the age of criminal responsibility and can be held criminally responsible. Wrong-doing juveniles refer to juveniles under the age of 18 who have acted against the social expectations for juveniles and even to an illegal or criminal degree (Wang, Deng and Liang, 2021).

On October 17, 2020, theLaw of the People’s Republic of China on the Protection of Minorswas adopted by the Standing Committee of the 13th National People’s Congress at its 22nd session and came into force as of June 1, 2021. TheAmendment (XI) to the Criminal Law of the People’s Republic of China, which was adopted at the 24th session of the Standing Committee of the 13th National People’s Congress on December 26, 2020, provided for the prevention of crimes of low-age juveniles, sentencing criteria for the crime of sexual assault against minors, and prevention mechanisms for recidivism of vicious crimes. Article 4 of the newLaw on the Protection of Minorsstipulates that minors shall be protected based on the principle of the best interests of children. This principle actively defines the rights of minors and the protection of such rights. When handling the cases concerning juvenile delinquents, it is necessary to observe the principles of welfare protection, responsibility bearing, and maximization of children’s benefits (Liu and Ruan, 2021). According to China’s existing legal provisions, it seems that China would like to develope a more perfect treatment system for juvenile delinquents. Specifically, the basic laws (e.g.,Criminal LawandCriminal Procedure Law) contain provisions concerning the treatment of juvenile delinquents, but these provisions are both imperfect and fragmented. Article 13 of theCriminal Lawcontains a narrow interpretation of crimes that a circumstance shall not be considered as a crime if it is significantly minor and slightly harmful. Article 17 of theCriminal Lawstipulates that a person under the age of 18 shall be punished leniently or less severely, and a person under the age of 16 and exempt from criminal punishment shall be subjected to special correctional education when necessary. Article 37 of theCriminal Lawstipulates that in minor circumstances, a person may be exempt from criminal punishment. Article 280 of theCriminal Procedural Lawstipulates the treatment measures such as separate detention, separate management, and separate education. Article 282 of theCriminal Procedural Lawstipulates the conditional non-prosecution system. The provisions of theSupreme People’s Court on the Application of Law in Handling Cases of Sentence Commutation and Parolestipulate a lenient treatment system (e.g., sentence commutation and parole) on minors. Articles 6 and 43 to 48 of theLaw on the Prevention of Juvenile Delinquencystipulate the special school system for juvenile delinquents. However, the above legal systems have various defects. First, some legal systems are not sufficiently implemented. For example, the applicability of the special school system stipulated in theLaw on the Prevention of Juvenile Delinquencyis relatively low in judicial practice. Second, there are no specific criteria for the hierarchical treatment of juvenile delinquents. The systematicJuvenile Case Handling LaworJuvenile Delinquency Handling Lawis yet to be enacted. Therefore, the related legal norms are not integrated, the applicable criteria are relatively flexible, and a stable hierarchical treatment mechanism has not yet been established for juvenile delinquents. Hence, it is necessary to integrate the treatment of juvenile delinquents stipulated by different legal norms and explore a hierarchical treatment system for juvenile delinquents.

Practical Necessity of Hierarchical Treatment for Juvenile Delinquents

The word “treatment” contains the meanings such as handling and medical treatment, and the hierarchical treatment system comprises both preventive measures and punitive measures for criminal acts. The category of criminal treatment emerged along with the criminal evidence school and evolved along with the reform in the individualization of punishment and execution of punishment. In a broad sense, the treatment in the socialization of penalty execution mainly refers to the way the state and society treat and deal with criminals, including custodial penalty (i.e., criminals are isolated from society and rehabilitated in prisons) and non-custodial penalty (i.e., criminals are rehabilitated in a community environment) (Xiong, 2019). The treatment of juvenile delinquents should not only embody the principle of judicial fairness and justice but also be suited to the specific characteristics of juvenile delinquents and the cases in which they are involved. Hierarchical treatment of juvenile delinquents is of great significance in the following aspects.

First, hierarchical treatment of juvenile delinquents is objectively necessitated by the protection of children’s legitimate rights and interests. Over the centurial development history of juvenile justice in the world, the best interests of children reveal the fact that the policies and philosophies of juvenile justice toward juvenile delinquents vacillate between protection and punishment, welfare and responsibility, while the intervention in juvenile delinquents vacillates between leniency and restriction, and the treatment of juvenile delinquents vacillates between institutional treatment and non-institutional treatment. The best interests of children have emerged and developed while the boundaries of the parens patriae concept and juvenile justice were extended to the international rules of children’s human rights. Today, the best rights of children have become the foundation for the healthy and orderly development of the juvenile justice system and the guidelines for the protection of minors in many countries.

Second, the hierarchical treatment of juvenile delinquents is a concrete manifestation of the concept of restorative justice in the handling of children-related cases. Criminal justice for juvenile delinquents in many countries worldwide emphasizes the three basic goals, including the responsibility, restoration, and return of minors. Juvenile delinquents can really return to society only when they are held responsible for the consequences of their crimes and make up for the damage and losses caused by their behaviors. TheWorld Youth Report 2005of the UN stated that it is widely believed that early-phase intervention represents the best approach to preventing juvenile delinquency, and that the prevention of recurring crime is best achieved through restorative justice, and that restorative justice plays an important role in the juvenile justice system around the world.

Main Problems in the Treatment for Juvenile Delinquents in China

In China, the treatment of juvenile delinquents is not only biased cognitively but also imperfect in terms of legal systems. Among both administrative organs and judicial organs, the modes and measures of the treatment for juvenile delinquents are too rough to effectively protect the legitimate rights and interests of juvenile delinquents.

Cognitive Bias

First, the treatment of juvenile delinquents is overall not fully integrated. Juveniles, who are physically and mentally immature, lack a full understanding of their delinquent behaviors, and the social welfare guarantee for juvenile delinquents is still far from enough. Therefore, juvenile delinquents should be moderately tolerated and given the opportunity to correct their faults. On the one hand, the treatment of wrong-doing juveniles (i.e., problematic juveniles) should be dominated by education from the authorities concerned and supplemented by punishment. On the other hand, criminous juveniles should be treated less severely than adults from the perspective of the protection of children’s welfare. However, the treatment of wrong-doing juveniles is not integrated with the treatment of criminous juveniles to prevent juveniles from committing crimes. In addition, the education of law-violating juveniles is not integrated with the education of criminous juveniles. Second, the shortcomings of the traditional custodial penalties are not adequately understood in practice. Some researchers argued that improper custodial penalties might make criminals worse rather than correcting them (Wu, Chen, Ye and Ma, 2003, pp. 86-89). Prison life makes criminals less adaptable to normal social life, produces the prison subculture and violence subculture, and encourages criminals to integrate into these subcultures. All of these have a negative impact on the re-socialization of criminals and may lead to the recidivism of criminals who are released from prison. Third, the value of community sentencing is not adequately understood. Community sentencing is essentially intended to give criminals an appropriate form of intra-social treatment. On this basis, the main value of community sentencing is to avoid the shortcomings of the custodial penalties and facilitate the re-socialization of criminals. The practical community has not yet fully realized the value of community sentencing, which is mainly manifested in the one-sided understanding of the applicable standards for suspended sentences. Some people in the practical community implement the applicable standards for suspended sentences in an excessively rigorous manner and think that suspended sentences should not be applicable to serious violent crimes. However, juvenile criminals have not yet developed a stable structure of criminal mentality; hence, suspended sentences can still be applicable to them with serious violent crimes if their criminal motive, frequency, and means do not indicate a high level of personal dangerousness.

Improving the Ways and Means of Treatment of Juvenile Delinquents

First, the administrative treatment of juvenile delinquents is relatively simple. Here, administrative detention is taken as an example. TheLaw on Public Security Administration Punishments(Exposure Draft) promulgated by the Ministry of Public Security in February 2017 has explicitly lowered the administrative detention age for juveniles from 16 to 14, which has not been given due attention in judicial practice. According to the current social situation of juvenile delinquencies and the physical and mental characteristics of juveniles, it is somewhat reasonable to moderately lower the administrative detention age. However, this will face the following problems: (a) The “first violation of public security management” is not a sufficient reason to exempt juveniles from administrative detention; (b) No due consideration is given to the hierarchical treatment mechanism for juvenile delinquents. TheLaw of the PRC on Penalties for Administration of Public Securitymerely provides for the punishment mechanism for juvenile delinquencies but ignores the correctional education mechanism, failing to fully implement the principle of “education as the main means and punishment as an auxiliary means.”

Second, in terms of the implementation of criminal coercive measures, the public security organs emphasize the role of criminal detention as a safeguard for criminal investigation. Although theCriminal Procedure Lawand theProvisions on the Procedures for Handling Criminal Cases by Public Security Organsstipulate that arrest measures should be strictly restricted or used as infrequently as possible, it is yet to be further stipulated whether criminal detention should be strictly restricted. In particular, when taking specific criminal detention measures, public security organs may fail to sufficiently consider the particularity of juvenile crimes and deeply understand the characteristics of juvenile criminal suspects, a special subject of crime, and the circumstances and social harmfulness of crimes committed by them. In the eyes of public security organs, the applicable conditions of criminal detention for juvenile criminal suspects are not significantly different from those for adult criminal suspects.①Article 327 of the Provisions on the Procedures for Handling Criminal Cases by Public Security Organs stipulates that arrest measures against juvenile criminal suspects shall be strictly restricted or used as less frequently as possible. If the detained or arrested juvenile criminal suspects are obedient, public security organs shall timely change the coercive measures against them as long as they are not socially harmful and criminal proceedings are implemented normally. If juvenile criminal suspects are arrested with the approval of people's procuratorates, public security organs shall timely notify the people’s procuratorates of the change of coercive measures.In practice, after filing a criminal case, some local public security organs decide to take criminal detention measures against juvenile crime suspects mainly from the perspective of constitutive elements of criminal acts and improving the efficiency of case handling. In addition, some public security personnel undereducate juvenile criminal suspects to the detriment of their physical and mental health. Therefore, the public security organs should be prudent in taking criminal detention measures against juvenile criminal suspects.

No intermediate Punishment Between Custodial Penalties and Community Sentences

In China’s existing legal system, there exists no intermediate punishment between custodial penalties and community sentences. For instance, Canada’s daytime parole system, which is an intermediate form between full parole and imprisonment, allows parolees to work or study outside prisons in the daytime and return to stay in prison during a specified time at night. The weekend imprisonment system allows criminals to work or study normally on weekdays and stay in prison during the specified times on weekends. France’s consecutive sentence of imprisonment (e.g., a sentence of 180 days of imprisonment) allows criminals to choose the time of imprisonment at their discretion and considers the completion of imprisonment execution as long as they serve the specified number of days cumulatively. These intermediate sanction systems between suspended sentences, parole, and imprisonment are beneficial to enriching the existing criminal punishment system and taking highly targeted punitive measures against different types of criminals. When conditions permit, we can set out to establish an intermediate punishment system for juvenile criminals.

Path Exploration in Building a Scientific and Normative Hierarchical Treatment System for Juvenile Delinquents

Developing a Special Correctional Education System

In accordance with the provisions of Article 45 of the revisedLaw of the People’s Republic of China on Prevention of Juvenile Delinquency, if juveniles under the age of criminal responsibility commit an act specified in theCriminal Lawbut are not subjected to criminal punishment, educational authorities together with public security organs may decide to provide special correctional education for them with the prior consent of the special education steering committee. Notwithstanding specific provisions on the construction of special schools, special correctional education measures will fail to constitute a complete hierarchical treatment system if they are merely intended to educate juvenile delinquents in special schools. Therefore, it is necessary to further refine and enrich the institutional treatment measures in the special correctional education system. In addition to special schools, it is advisable to take judicial treatment measures such as coercive reeducation. The newLaw on the Protection of Minorsdefines the subject of special correctional education as the special education steering committee. Special correctional education is a new system, so it is necessary to determine the composition, nature, functions, and responsibilities of the Special Education Steering Committee as soon as possible, explicitly stipulate whether the Committee can authorize professional institutions or personnel to evaluate the eligibility for correctional education, and determine the criteria and procedures of the evaluation, and the application of evaluation results.

Moderately Restricting the Application of Criminal Coercive Measures

Overall, it is necessary to strictly restrict pre-trial detention measures (e.g., criminal detention and arrest) against juveniles. Considering that custodial coercive measures in criminal proceedings may cause serious physical and mental harm to juvenile delinquents, criminal detention and arrest should be strictly restricted based on the principle of bidirectional protection and reformatory education, depending on the level of personal dangerousness. First, it is necessary to prudently determine the conditions for criminal detention. Compared with adult criminals, juvenile criminals usually do not conceive any strict-sense counterdetection plan beforehand, so the absence of detention usually poses no obstacle to the smooth implementation of criminal proceedings. For juvenile delinquents who commit crimes alone, the public security organs should immediately change the coercive measures (e.g., criminal detention) into bail pending trial rather than waiting for the disapproval of arrest from procuratorial organs after the case fact is basically ascertained and a guilty confession is made unless sufficient evidence demonstrates their personal dangerousness. For juvenile delinquents who commit crimes in gangs, the public security organs should also immediately change the coercive measures after the case fact is basically ascertained, and a guilty confession is made, unless sufficient evidence demonstrates that they may hinder the smooth implementation of criminal proceedings or they are personally dangerous. Second, the procuratorial organs should adhere to the principle of less arrest and prudent detention and restrict the arrest of juveniles moderately, but should not approve any arrest of juvenile criminal suspects unless absolutely necessary. Besides, the procuratorial organs should not only examine their personal dangerousness and social harmfulness according to the names of crimes committed by them but also examine the actual social harmfulness of their crimes.

Linking the Non-custodial Coercive Measures with Sentencing in Criminal Proceedings

The following is suggested: (a) In principle, criminal suspects and defendants under bail pending trial or residential surveillance should be subjected to suspended sentences if they are sentenced to fixed-term imprisonment of less than three years by the people’s courts; (b) Juvenile criminals should be subjected to suspended sentences in this case. Specific plans include: First, it is necessary to thoroughly implement the leniency system of guilty pleas and link the observance of supervision rules with the sentencing suggestions. If criminal suspects or defendants observe the supervision rules during the period of bail pending trial or residential surveillance and can be sentenced to fixed-term imprisonment of less than three years or detention according to the circumstances of sentencing, the people’s procuratorates can suggest the people’s courts sentence them to fixed-term imprisonment of less than three years or detention and apply a suspended sentence according to the leniency system of guilty pleas. If juvenile criminal suspects or defendants can be sentenced to fixedterm imprisonment of less than three years or detention according to the circumstances of sentencing, the people’s procuratorates can also suggest the people’s courts to sentence them to fixed-term imprisonment of less than three years or detention and apply a suspended sentence according to the actual status of cases. Second, the people’s courts should fully consider whether defendants abide by supervision rules during the period of bail pending trial and residential surveillance. Juvenile defendants should usually be subjected o suspended sentences if they abide by the supervision rules during the period of bail pending trial and residential surveillance and can be sentenced to fixed-term imprisonment of less than three years or detention.

Promoting the Socialization of Prison Execution

It is advisable to promote the socialization of prison execution on juvenile criminals, thus allowing them to keep in contact with and communicate with outside society and learn from role models in society. First, it is necessary to implement socialized prison execution flexibly and vividly in a hierarchical way according to the personal dangerousness level of juvenile delinquents, for example, send juvenile delinquents to participate in off-prison social activities, mobilize community staff, volunteers, and social workers to help and educate juvenile delinquents in prison. Second, it is recommended to retain the student status of juvenile delinquents in their original schools, seal their criminal records, and allow eligible juvenile delinquents to take the senior secondary school or college entrance exam with the student status in their original schools. Third, if the parents of juvenile delinquents have custodial education capacity and juvenile delinquents are eligible for a lenient punishment, juvenile delinquents are entitled to prison furloughs every month in the full company of custodians. In the form of reform education, the imprisoned juvenile delinquents should not only receive secondary literacy education, moral and ideological education, and legal education, but also take part in various kinds of labor to develop their labor capacity and consciousness.

Conclusion

Hierarchical treatment of juvenile delinquents should overall be in conformity with the principle of modesty and prudence and be considered from the perspective of the protection of the rights and interests of juveniles. To develop a scientific and normative hierarchical treatment system for juvenile delinquents, it is necessary to consider China’s actual conditions, learn from good experience and practice of foreign countries or regions, take protection as the fundamental goal and punishment as the exception, build a stepwise correctional education system, strengthen non-criminal treatment measures, and take appropriate supporting measures. The ultimate goal is to ensure that the hierarchical treatment system for juvenile delinquents is implemented normatively and effectively in judicial practice.