Special Report: Criminal Justice In People's China, Part II

SPECIAL REPORT

Criminal Justice in People’s China

By Detroit Recorder’s Court Judge George W. Crockett, Jr.

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"Communal ownership develops a mutual protection society, where each citizen feels an owner and a partner. One who steals or cheats offends not only the individual victim or the specific property, but all of society. How can one steal when everyone around him or her is a defender and a detective?"

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PART II

Disposition by conciliation and re-education within the ranks of the people disposes of almost all instances of wrongful conduct – civil and criminal. But this does not apply to offenses regarded as "most serious." By "most serious" offenses (our interpreter's term) usually is meant a criminal homicide, a brutal rape, a robbery or vicious assault, or the embezzlement of public funds. This category, of course, includes also all "treasonable and counter-revolutionary activities."

These "most serious" offenses, along with all others that are not finally disposed of in the "informal" process, are referred to the courts and are handled in the more formal manner. Further investigation may be conducted; written charges will be prepared and served upon the defendant; and the defendant will be arrested by the Public Security Agency. The case will then be heard almost immediately by a three-judge trial court.

One judge will be a regularly designated magistrate who normally will have had formal legal training. The other two judges will be lay persons (sometimes called "assessors") who will be peers of the accused selected from among neighbors or fellow factory workers or members of his or her commune. They may or may not have had some formal legal training, but they will be, in all likelihood, leading and highly respected members of their unit.

Such Western concepts as an "independent judiciary" and "separation of powers" between legislative, executive and judicial bodies do not figure in China's judicial scheme. The Constitution specifies that: "The people's courts are responsible and accountable to the people's congresses [the legislative body] and their permanent organs [the revolutionary committees who execute the laws] at the corresponding levels. The presidents of the people's courts are appointed and subject to removal by the permanent organs of the people's congresses at the corresponding levels.

"The mass line must be applied . . . in trying cases. In major counter-revolutionary criminal cases the masses should be mobilized for discussion and criticism."

We were told that the courts in the People's Republic of China "are important instruments for exercising the dictatorship of the proletariat" and that the tasks of the courts "are to try counterrevolutionary cases and serious criminal cases," as well as to settle civil disputes. We were told also that the courts operate "under the leadership of the masses, and the Communist Party as the vanguard of the masses, and they firmly implement Marxism-Leninism-Mao Tse Tung thought by carrying on struggle against counter-revolutionaries and serious criminals, protecting the legal rights of the people, and defending the socialist revolution."

"Go to the Masses"

I was curious to learn what was meant by the recurring terms "the masses," "go to the masses" and "follow the mass line." It was explained to us that what is meant is "consult with and be guided by what you Americans call the 'grass roots' and try to resolve all contradictions among the people at the grass-roots level." This explanation was understandable for the "informal" process described above; but, with our Western background, and noting the absence of juries, we had difficulty understanding how a court engaged in a "formal" trial could be expected to "go to the masses" with the issues in the case.

We were somewhat surprised to learn that the court's decision is always a tentative or suggested one. The decision must first be reported to the people's congress (or its appropriate committee) at the particular court's level – municipal, county, province, region or national. The people's congress (or its appropriate organ) will discuss the matter and make the final decision.

We were assured that, since by this time the facts are clear and both the congress and the court are applying Communist Party policies, there almost never is disagreement between them. If there is disagreement, however, the congress' decision prevails unless overruled at a higher level and by a similar process.

An authoritative publication by the Committee of Concerned Asian Scholars entitled China: Inside the People's Republic (Bantam, 1972) suggests there is nothing new in this practice of having China's courts "follow the mass line":

"Traditionally, the Chinese views on laws have been very different from our Western ideas. Face-to-face resolutions of differences have always been preferred to court decisions or trials, and this attitude has carried over into present day China.

"There is no tradition in Chinese law of juridicial decisions resting on previous cases of a similar nature, as in the American system of precedents. Instead, politics has long been and apparently still is accepted as a natural influence on the law. Chinese law and courts today, we are told, follow the 'mass line,' seeking to conform to an idea of justice that is both political and based on the community's opinions."

Since there are no rules of evidence, as we Westerners understand them, everything that will aid the court in arriving at the truth and deciding the appropriate disposition will be received. Because of the thoroughness of the prior investigation and decision in the "informal" proceeding, the accused who is referred for formal court proceedings is not presumed to be innocent; and there also is no presumption of guilt. And since there are   none of our "technical" rules of procedure, a litigant or defendant may be represented by anyone of his or her choice, a relative or a friend; or he/she may ask and receive appointed trained counsel at no cost.

Attorney Shapiro informed me that in the years immediately following Liberation (1949), and until about 1956, China had lawyers and the usual lawyers' organizations. But formalities have been eliminated, law cadres and law students are sent out to instruct and advise peasants and workers about the laws and their legal rights and obligations, and everyone now has a right to appear and be heard in court.

The accused may, and frequently does, elect to defend him or herself, or have a relative or friend as his/her advocate. Hence, there is no longer need for a body of legally trained advocates. What few private practitioners are left are assigned to and used mainly by foreigners.

The training of legal personnel reflects this change also. Formerly the law department at Peking University – China's largest law school – offered thirty courses and required five years' study for a degree. Now they offer about ten courses – In addition to

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Criminal Justice in China

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the works of Marx, Lenin and Mao. There are two hundred students divided between the three-year course of study for legal careers as government lawyers or law professors and the one-year course for cadres who will be assigned to work among the masses. Also there are schools on the provincial level for training political cadres for work in the judicial and public safety organs.

Sun-flower court-yards

In response to our written questions, we were able to obtain the following over-all view of the crime problem in our meeting with the law professors at Peking University:

"Crime is an expression of the existence of the class struggle. So long as classes exist in a society there will be crime.

"In old China crime was a very serious problem. There were gangs, robbery, prostitution, opium, etc. But the reforms brought about by our socialist society have changed all of this and crime has been greatly reduced because the people feel more secure. There still are some crimes, but for the most part they are counter-revolutionary cases involving persons who have been influenced by the exploiting class's ideas.

"We do not rely upon our courts to reduce crime; we rely upon the masses. Only a very small percentage of criminal cases come to the courts.

"Neither do we rely mainly upon our courts to resolve civil disputes. Instead, these are settled at the grass roots level – In the factory, the neighborhood or the production team or brigade conciliation committees. We call these our 'Sun-flower court-yards.' The masses understand that they have a responsibility to make a social investigation and solve the problem on the spot.

"The emphasis in the treatment is not merely punishment. Efforts are made to educate the offender in the principles of socialism, to point out how the person came to commit the crime, how it was harmful to the interests of the people, how to correct the crime and turn over a new leaf. For example, some youngsters were influenced by the wrong ideology and corrupted by the exploiting classes. Hence, in the treatment of juvenile criminals, we rely primarily on education rather than punishment. We punish and hit hard at those behind the scenes who influence the juveniles.

"Punishment may involve imprisonment for a limited period, life-long imprisonment, or even the death penalty. However, in case of death penalty, we provide for a reprieve of two years before carrying out the death sentence so as to see the result of reform through forced labor and re-education.

"The prison system operates on the principle of educating and reforming the criminal and enabling him to take part in productive labor. We combine punishment with ideological transformation. We provide an opportunity for the criminal to change his reactionary ideology and favor – provide able conditions for him to turn over a new leaf. We regard all criminals as human beings and treat them in a human way.

"We have instituted a series of study courses in the prisons and discussion groups in order to help them criticize and repudiate their former old reactionary ideology. All criminals are required to take part in physical labor according to their physical conditions, so as to transform them through labor. If the criminal behaves well and reforms, he or she might be given a chance to shorten the sentence.

"Imprisonment or death penalty will be imposed on murderers or those engaged in serious counter-revolutionary activities, and then only in serious cases. Other types of current crime are rape and theft. These are usually treated through re-education. As a whole, there are very few prisoners. Only very few criminals who appear in court are put in prison. Most are put under the surveillance of the broad masses of the people."

A New Society

To the Western mind, the approaches of the People's Republic of China to crime and the judicial process are difficult, if not impossible, to comprehend. Indeed, even to one exposed to Marxist ideas, and a close observer of the application of socialist precepts by Mao to the unique Chinese situation, the actual living experience of viewing modern China first-hand is nonetheless mind-boggling.

Socialism, as practiced in Mao's China, is creating a society unlike any in our experience. To those steeped in the ideology of private property, free enterprise, production for profit, and intensive competitiveness in every aspect of life, China comes as a total shock.

To comprehend this new society – to understand why serious crime is a rarity, juvenile delinquency nearly nonexistent, and lawyers virtually unnecessary – It is necessary to appreciate the enormous impact of this new socialist system on every individual in China.

All land and all property, except for personal possessions, is owned in common. There is no competition for jobs and no lack of work. Communal ownership develops a mutual protection society, where each citizen feels an owner and a partner. Hence, one who steals or cheats offends not only the individual victim or the specific property, but all of society. How can one steal when everyone around him or her is a defender and a detective?

Children, too, are raised in an atmosphere of social concern. Everywhere one sees evidence of the way they are enveloped from early childhood with personal attention and solicitude, extending from parents to teachers to local officials and to the people themselves. If there is deviant behavior, the causes are sought in the family or other life experience of the child and remedial action taken. The approach is positive, rehabilitative, instead of disciplinary in a primitive sense.

Those traits we assume to be instinctual – selfishness, greed, the desire to dominate, the compulsion to accumulate – all of these, and many other characteristics of our society, have no basis for existence, and lend neither encouragement or inducement for personal advancement. This remarkable absence of interpersonal hostility is epitomized by the role of Chinese police.

Their only visible function is to direct traffic. They are casually dressed, are unarmed, save for an occasional billy club, and are invariably relaxed and courteous. No citizen owns firearms. Jails are few and their populations small. The trappings of a restrictive regime are absent. These observations are not only those of casual visitors, but have been authenticated by every authority I have consulted or read in recent years.

Crime and the judicial system are products of the society. In the case of People's China, the phenomenon of a quarter of a century of Maoist socialism has produced a new society so vastly different from our own as to defy comparison. If one is to understand Communist China and its criminal justice system, one must be willing to learn this profoundly different social structure and its ideology. The lessons therein for coping with crime in America today are many.

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George W. Crockett, Jr. is a Detroit Recorder 's Court Judge. This account of his visit to the People's Republic of China first appeared in Judicature, the Journal of the American Judicature Society, for December 1975. c 1975, the American Judicature Society.

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"As a whole, there are very few prisoners. Only very few criminals who appear in court are put in prison. Most are put under the surveillance of the broad masses of the people."