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Studying Laojiao in China from Criminological Perspectives

By h0830388 Jan 06, 2011 3848 Words
Criminological Perspectives:
Assessment on Laojiao System in China

Introduction

Punishment, prisons and incarceration play critical roles in our contemporary societies despite much criticism on their effectiveness of rehabilitation[1]. In China, there is a punishment system “Re-education through laboring” (Laojiao) enabling the police to sentence people who have committed minor offences to prison-like facilities without trial[2]. Reformed-minded law makers, judges and scholars both in China and foreign countries have been calling for the reformation of the system.

This essay serves for assessing the laojiao system from criminological perspectives and focusing on two questions, “Is laojiao a good prison system?” and ‘Should laojiao be reformed?”. It consists of five parts: 1) Functions of Laojiao vs. Functions of Prison 2) From Education to Laboring Punishment, 3) “Should Laojiao be reformed?” and 4) Conclusion

First question: “Is laojiao a good prison system?”

According to the Chinese orthodox penology which is heavily influenced by the Marxist and Maoist ideology[3], punishment through laboring transforms prisoners, and thus is a means to achieve the purpose of reforming and rehabilitation of offenders. The reform process takes place through collective labor, by which the planned penal economy makes a significant contribution to the state economy. [4] Although the doctrine is heavily criticized in the perspective of criminology[5], it is necessary to go through all the functions which laojiao performs in order to better analyze whether it qualifies as a good prison system.

What is laojiao?

Laojiao is an administrative punishment created as a political control in the 1950s to punish “minor counterrevolutionaries” and “rightists” and to discipline the labour force.[6] Laojiao is imposed by the police who are authorized by law to bypass the criminal process and summarily subject an offender to a maximum of 3 years’ incarceration. Traditionally, there are 4 functions for Laojiao:

1. Laojiao as crime control

Laojiao has supplemented criminal sanctions by punishing minor offences, the consequences or the circumstances of which are not serious enough to trigger punishments from Chinese Criminal Law[7]. It also targets minor violations of the law and habitual minor offenders[8]. Moreover, it exerts a broader control by punishing harmful or immoral acts and is used as a key device to maintain social order and stability[9].

2. Laojiao as a drug control measure

Laojiao has been regarded as a drug control measure for long. However, with the enactment of the Law on Narcotics Control in 2007, laojiao’s function as a drug control measure has been lost.

3. Laojiao as an investigative detention

It is used to facilitate police investigations by prolonging detention beyond the period allowed by law. Where a person is suspected of having committed an offence, the police may send the person to Laojiao for further investigation. Only if the facts were clarified and sufficient evidence gathered would the police take further actions.[10] 4. Laojiao as political control

Laojiao was used to punish people who were calling for further political liberalization and were critical to the government. After the 911 attacks, the government itself actively revealed details of terrorist organizations and terrorist activities in China and spread the message that it is also a victim of terrorism, arguing that it is thus justified in taking tough measures (laojiao) against domestic terrorists and terrorist organizations[11]. Increasingly the government is using Laojiao to detain religion/ethnicity-based dissidents in Xinjiang. [12]

Conventional functions of a prison

In Criminology, an ideal prison performs four fundamental functions, namely incapacitation, retribution, deterrence and rehabilitation. An exhaustive analysis will be conducted below on whether laojiao system qualifies as a good prison system.

1. Incapacitation

Incapacitation is defined as physically removing offenders from the society against which they are deemed to have offended.[13] In the context of laojiao, an offender can be summarily subject to a maximum of 3 years’ incarceration plus one year additional imprisonment if necessary. A maximum of 4 years’ imprisonment is rather short compared to other prison systems in other countries, namely the USA and the United Kingdom.[14]

Moreover, the function of incapacitation is long been blamed as merely deferring the experiential process of maturating away from criminal behavior[15]. Incapacitation only works when offenders are confined in the laojiao camp. However, given the limited length of imprisonment, they cannot be locked inside for a sufficient long period in order to ensure the security of our society. Anyway, the possibility of which the offenders will re-commit the crimes or rules depends on, to a great extent, the effectiveness of rehabilitation of the prison institution but not the length of imprisonment.

2. Retribution

The definition of retribution is “deserved punishment or compensation of injury” according to Oxford Dictionary. The gist of the word is “life for life, eye for eye, tooth for tooth, hand for hand, foot for foot”[16] or proportionality between the punishments deserved and the nature of offences.

Laojiao is a system filling the gap of the Chinese Criminal Law through supplementing criminal sanctions by punishing minor offences which do not amount to criminal offences.[17] However, the balance between offence and punishment of laojiao system is questionable. For instance, according to the Chinese law on selling pornographic products, one year laojiao imprisonment will be sentenced to an offender selling not more than 100 units of pornographic products while imprisonment for half a year will be sentenced to offender selling more than the prescribed number of units.[18]

3. Deterrence

Deterrence is defined as imposing punishments on offenders so as to deter other citizens from committing crimes[19]. Can laojiao deter citizens from offending the rules that fall within the scope of the system? A negative answer is provided in the following analysis.

First of all, the minor-offences violators pinpointed by laojiao are usually habitual offenders. They can control themselves from committing the offences in the sense that it is never easy to change their habits despite the imposed heavy punishments and their acknowledgement to the penal sanctions[20].

Second, drug addicts are in no exception. They just cannot prevent themselves from taking drugs given the definition of “drug addict” to be “person who cannot stop taking harmful drugs” according to Oxford dictionary. This may be one of the reasons attributing to the enactment of the Law on Narcotics Control in 2007.

Third, laojiao is used as an investigative intention and detention on offenders will be exercised when necessary. The deterrence effect on crime offenders has been critically suspected in the eyes of many criminology scholars including V. Kappeler and G. Potter (2005). Heavy punishments are not taken into account by most crime offenders as they won’t commit any if the chance to be caught by the police is high[21].

Finally, are political dissidents deterred by the heavy punishment? There seems to be a lack of academic research on whether political dissidents are deterred by the penal sanctions to participate in political activities. Nonetheless, with the support of precedent cases including Liu Xiubo, it seems that political dissidents have taken the imprisonment following the participation in political activities into account. They, in plain words, will not join any political activities if they are afraid of being locked into the prisons.

4. Rehabilitation

Rehabilitation refers to the restoration of an offender to a useful life, to a life which they contribute to themselves and to society through means like therapy and education[22].

Is “education through laboring” in China an effective means of rehabilitation? It seems that not much academic research have been conducted in this area. Nonetheless, from the eyes of Criminology, punitive punishment can act as a good means to achieve prisoners’ rehabilitation as illustrated in USA’s prisons compared to those in Scandinavian countries[23]. Laojiao tends to be punitive given its disproportionate sentence length rather than the kind of prison system like those in Scandinavian countries in which safe prisons, short sentences and rehabilitation are emphasized, e.g. average sentence is only 75 days and inmates can go fishing and riding horses[24]

Moreover, inmates are forced to work without proper rest everyday in the laojiao camp and their root causes of offending the rules are not taken into consideration in the rehabilitative measures. For instance, political dissidents participate in political activities partly due to their perception towards the government yet sadly their thoughts will not be changed after mere three years’ imprisonment without any appropriate psychological therapy and education[25]

In summary, laojiao cannot be qualified as a good prison system when applying the conventional criteria of the functions that a prison should perform, namely incapacitation, deterrence, rehabilitation and retribution. The failure of laojiao to perform the abovementioned functions to a large extent contributes to the voice of reformation of laojiao. Should laojiao be reformed? Before answering the question, it is beneficial to first go through the origin of laojiao.

Second question: ‘Should laojiao be reformed?”

From Education to Laboring Punishment

Education is a neutral word without any element of punishment or compulsion. It is thus abnormal to name a punishment system “Re-education through laboring”. According to two scholars, Huang HongShan and Wang HuiPing the name of laojiao is highly related to a doctrine “Jiaoyang” (in Chinese 教養) which is highly adopted in recent charities[26].

What is Jiaoyang

Jiaoyang is comprised of two words, jiao and yang. The former refers to education while the latter means to help people in need. It is an ideology on helping people in need through education. The first institution of jiaoyang is built for adopting juvenile delinquents. The objective of it is to educate the delinquents according to their characters and talents. Afterwards, more and more similar institutions were converted to the use of jiaoyang pinpointing other groups of people in need of help[27].

Radical Development of jiaoyang
Western conquerors brought tremendous change in economical structure of China after the Opium War. Poverty problems evolved. Scholars thus encouraged the adoption of jiaoyang to “compulsorily” “accept” unemployed delinquents to learn in their facilities. Punishment was acted as a means to rectify the bad habits of the delinquents.[28] In context of this radical development of the doctrine of Jiaoyang, the foundation of the later laojiao system has been well established.

With the prospering of “jiaoyang” concept, more and more institutions were built in China in 1920s.[29] The Qing government relied on these institutions to help old and juvenile disabled and other groups of people who are desperate for help. Guidance was promulgated by the Government to the effect that each institution should teach inmates different sorts of skills in order to enhance their later employment. Laboring element was first added into the jiaoyang institutions for the teaching of skills.

Transformation of jiaoyang to laojiao

Following the radical development of jiaoyang and cultural influence brought by Western countries, elements of punishment and rehabilitation have been incorporated into the doctrine and subsequently implemented in the relevant institutions. It was even named as the major doctrine of policies in China later. The doctrine has gone astray from the original objective – education, rehabilitation and help; and transformed to the infamous laojiao system today.

It is without any doubt that the original ideology of jiaoyang deviates a lot with the pragmatic embodiment of the doctrine –“laojiao”. Deviance dance might play an important role throughout the whole transformation process[30] – there is apparent deviance between the perception of the Government on the effectiveness of laboring punishment towards rehabilitation and the genuine influence on offenders by laboring punishment.

Indeed, laboring punishment may have malfunctioned to rehabilitate the offenders and even has brought tremendous victimization to the offenders which will be mentioned in the following part “Should laojiao be reformed?”

Should Laojiao be reformed?

The Criminal Code of the PRC was first enacted in 1979 and then revised in 1997[31]. There have also been numerous minor amendments since its first enactment. Compared to other legal jurisdictions, PRC Criminal Law is still developing and cannot be regarded as a satisfactory code of law to regulate citizens’ behavior[32]. Laojiao evolves to fill in the gap between minor offences and immature criminal law. Undoubtedly, the emergence of Laojiao system has partly contributed to a more stable and well-regulated society in that sense. Nevertheless, in addition to the malfunction of the prison system and the deviance between the original ideology and practical implementation of laojiao doctrine aforementioned, criticisms towards the system never cease.

Victimization inside the laojiao camp

In a research conducted to explore the conditions in laojiao camp, much information was gathered from the prisoners, who described camp conditions as inhumane[33]. Former prisoner Tong Li stated: "The worst incident occurred after I refused to work more than the eight hour maximum day mandated by Chinese Law. At that time I was beaten by a group of inmates instructed by the police guards in the labor camp. I was not allowed to talk with other detainees in that labor camp. I had no access to newspapers, television or radio. My food rations were minimal." Other prisoners have testified to similar treatment. According to Harry Wu, the Executive Director of the Laojiao Research Foundation, prisoners in both the Laojiao and the Laojiao are given only one uniform and one pair of rubber and plastic gloves each year. They are fed three times a day, but the quantity of food depends on their daily performance and the quality of the food is poor, consisting mostly of corn gruel and corn bread. Prisoners often labor 12 hours per day or more, working at farms, mines, and different types of prison factories that manufacture a wide array of products for foreign and domestic markets. The camps are often overcrowded and it is common for two prisoners to sleep in the same bed and for 200 prisoners to share six showers within a half-hour period of clean-up time. In sum, the conditions of the Laojiao camps are hazardous and debilitating. The inmates in laojiao camp suffer loss of liberty – they are separated from family members and friends, loss of autonomy – they are forced to do all sorts of tasks that they do not want to, and loss of security – prisoners have to pack within a small area in which crimes or assaults may arise[34]. The conditions of the camp are, as they described in the survey, inhumane at all. Even though the survey did not reveal much prisonalization effects on the mentally ill and crime activities in the laojiao camp, the need for reformation of laojiao should not be neglected.

What is crime?

Upon the assumption of “crime” under Criminological scholars, acts with the potentiality of being seen as crimes are like an unlimited natural resources and crime does not exist as a given entity[35]. It is all upon the law-makers and the government to delineate the big circle for “what is norm” and “what is crime”[36].

Crimes, in the context of Chinese Law, refer to any rules listed out in the Chinese Criminal Law Code[37]. Laojiao serves for supplementing the criminal sanctions by punishing some habitual offenders whose offences do not amount to “crimes”. Strictly speaking, these laojiao offenders are acting within the “circle of norm” since they are not committing crimes.

Combining with the abovementioned victimization, the picture of inmates being treated in laojiao institutions should be much clearer: inmates in laojiao system are not committing crimes, they were sent to a place claimed to be in an ideology of re-education and rehabilitation and victimized inside. Laojiao for profit

Human-rights pressure groups and campaigners for Tibet both argue that the laojiao system is largely driven by profit. Anecdotal evidence in Congressional testimony supports this claim.[38] This prompts the call for abolishment of laojiao system.

The stance is further supported by Fogel & Engerman who famously overturned conventional wisdom and claimed that slavery was profitable and that the survival of the institution itself would be the best evidence towards the stance[39].

However, based on the exhaustive analysis conducted by anti-laogai campaigner, Harry Wu in 1992, prisons are generally not profitable. The evidence shown in “Is Prison Labor Profitable? Some Evidence from China” by Evan Osborne in Wright State University also strongly opposes to those supporters of “laojiao for profit”.

There may be a grained misconception towards laojiao’s profitability, but after taking account into all the supporting factors for reformation of laojiao, there is still a strong social need for a revolution towards laojiao. The NPC is now actively considering a Bill on the rehabilitation of minor offenders to replace whatever is left for Laojiao. This could be regarded as a good start for the reformation.

Conclusion

In short, laojiao is not a good prison system and reformation should be called for from a Criminology perspective in regard of numerous factors, namely malfunction as a good prison, deviance between original objective and its final product, and the fact that inmates are not committing crimes while suffering from terrible victimization. Chinese citizens have been longing for an effective reformation of laojiao system. The road is tough yet never too late to start. -----------------------

[1] Street-Level Purposes of Punishment, Norval Morris, Vol. 140, No. 2 (Jun., 1996), pp. 197-203 [2] Xia Zongsu, “The development and historical achievement of the laojiao system” Fanzui yu yanjiu, No. 1 (2001), p.15 [3] The people v. the principle of legality in the People's Republic of China, Harold E. Pepinsky [4] Yang Diansheng and Zhang Jinsang (eds.), Zhongguo tese jiaoyu zhidu yanjiu (Research on the Prison System with Chinese characteristics)(Beijing: Law press, 1999)

[5] PART II - PUNISHMENT AS A MEANS OF REHABILITATION, pp. 85-86, By Jean-Christophe Merle, Universität des Saarlandes, Saarbrücken, Germany

[6] The 1957 Decision, s. 1, as translated in Edward J. Epstein (ed.), “Legal documents and materials on administrative detention in the People’s Republic of China,” Chinese Law & Government, Vol. 27, No. 5 (September–October 1994), [7] Wang Lirong, “Historical rectification or normative transformation?”, in Chu, Chen, and Zhang, Rationality and Order, p.253 [8] Collective of Laws on Public Security p.1351, 7 June 1990 [9] Zhang Shiqi and Li Pang (eds.), Xingshi zhixing, laodong gaizao, laodong jiaoyang (Criminal Enforcement, Laojiao and Laojiao)(Shengyang : Liaoning University Press, 1999) [10] Li Ling and Zhai Xiaomin, “Fuan laojiao renyuan chansheng de yuanyin tezheng ji duice” (“the case and characteristics of person under investigative detention in laojiao and counter-measures”), Fanzui yu gaizao yanjiu, Vol. 104, No. 4 (1998), p. 19. Interview with a police officer (Chengdu, 2003) and a procurator (Beijing, 2002) [11] Xin Yan, “Dui dangqian Xingjiang fankongbu douzheng de jidian renshi he sikao” (“Several reflections and considerations on the anti-terrorism struggle”), Gong’ an yanjiu (Policing Studies), No.5 (2002), p.47. Patrick E. Tyler, “In China’s far west, tensions with ethnic Muslims boil over in riots and bombings,” The New York Times, 28, Feb 1997 [12] Human Rights Watch, “In the name of counter-terrorism: human rights abuses worldwide,” http://hrw.org/un/chr59/counter-terrorism-bck4.htm [13] Norval Morris and David J. Rothman (1995), The Oxford History of the Prison, New York, Oxford, Oxford University Press, Introduction, pp. vii – xiii p. 10 [14] Rate and Length of Imprisonment, Eugene Doleschal (2010), Information Centre, National Council on Crime and Delinquency [15] Norval Morris and David J. Rothman (1995), The Oxford History of the Prison, New York, Oxford, Oxford University Press, Introduction, pp. vii – xiii p. 10 [16] Norval Morris and David J. Rothman (1995), The Oxford History of the Prison, New York, Oxford, Oxford University Press, Introduction, pp. vii – xiii p. 10 [17] P.213-217, An introduction of the Legal System of the People’s Republic of China, Albert HY Chen (2004) [18] “Zhizuo fanmai chuangbo renshe wubin zui” (the law on production and selling of pornographic products. [19] Norval Morris and David J. Rothman (1995), The Oxford History of the Prison, New York, Oxford, Oxford University Press, Introduction, pp. vii – xiii p. 10 [20] Norval Morris, The Habitual Criminal (1951, reprinted 1973). Works examining habitual-offender laws include David Shichor and Dale K. Sechrest (eds.) [21] V. Kappeler and G. Potter (2005) Chapter 12: Cons and Country Clubs: The Mythical Utility of Punishment, in The Mythology of Crime and Criminal Justice, 4th edition, Long Grove, Waveland Press, Inc., page 290. [22] Norval Morris and David J. Rothman (1995), The Oxford History of the Prison, New York, Oxford, Oxford University Press, Introduction, pp. vii – xiii p. 10 [23] Nils Christie, A Suitable Amount of Crime, London, Routledge, 2004. Chapter 4, Incarceration as an answer, p. 63 [24] Nils Christie, A Suitable Amount of Crime, London, Routledge, 2004. Chapter 4, Incarceration as an answer, p. 64 [25] “The psychology of crime”, part 11, the treat of offenders, Philip Feldman(1993), University of Leeds [26] “From education to re-education through labor, the origin of Chinese laojiao system, Huang HongShan, Wang HuiPing, vol 30, no. 3, Hebei Academic Journal, May 2010 [27] Qing Shilu (“The history of Qing Dynasty”) volume 7, Beijing, Zhonghua Shuju, 1985 [28] Qing Shilu (“The history of Qing Dynasty”) volume 12, Beijing, Zhonghua Shuju, 1985 [29] Qing Shilu (“The history of Qing Dynasty”) volume 12, Beijing, Zhonghua Shuju, 1985 [30] J.V. Roberts, L.J. Stalans, D. Indermaur, M. Hough (2003), Chapter 2: “Public Opinion about Crime and Punishment” in Penal Populism and Public Opinion. Lessons from Five Countries, Oxford, Oxford University Press. [31] P.255-264, An introduction of the Legal System of the People’s Republic of China, Albert HY Chen (2004) [32] Ian Dobinson, “The Criminal Law of the People’s Republic of China (1997): Real Change or Rheotoric?”, 11 Pacific Rim Law and Policy Journal 1 (2002) [33] “Reform through Labor in China” by Ramin Pejan, Volume 7, Issue2, Human Rights Brief

[34] V. Kappeler and G. Potter (2005) Chapter 12: Cons and Country Clubs: The Mythical Utility of Punishment, in The Mythology of Crime and Criminal Justice, 4th edition, Long Grove, Waveland Press, Inc., page 299 [35] Nils Christie, A Suitable Amount of Crime, London, Routledge, 2004. Chapter 4, Incarceration as an answer [36] Emile Durkheim, “The normal and the pathological” Criminological Perspectives. Essential Readings, London, SAGE 2005 [37] P.255-264, An introduction of the Legal System of the People’s Republic of China, Albert HY Chen (2004) [38] See, for example, “Forced Labor in China,” hearings before the U.S. House Subcommittee on International Operations and Human Rights, Committee on International Relations, May 22, 1997, http://commdocs.house.gov/committees/intlrel/hfa45502.000/hfa45502_0.HTM [39] Fogel and Engermann (1974), Time on the Cross: The Economics of American Negro Slavery

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