Punishment in Contemporary China

Its Evolution, Development and Change

Enshen Li

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780367483531
• eBook ISBN: 9781351039369
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Punishment in contemporary China has experienced dramatic shifts over the last seven decades or so. This book focuses on the evolution, development and change of punishment in the Maoist (1949-1977), reform (1978-2001) and post-reform eras (2002-) of China to understand the shaping and transformation of punishment within the context of a range of socio-cultural changes across different historical periods.

It aims to fill the gap of existing research by developing a distinctive theoretical framework for the China's penality, exploring it as a separate and complex legal-social system to observe the impact social foundations, political-economic genesis, cultural significance and meanings have exerted on penal form, discourse and force in contemporary China. It sheds light on the sociology of punishment in this socialist Party-state by investigating law reform, penal policy, social control, crime prevention and sentencing as interconnected elements in the criminal justice and penal system.

This book will be of great interest to those who study Chinese criminal law, penal and policing system, as well as to law academics, criminologists and sociologists whose research interests lie in the fields of comparative criminology and criminal justice.

Chapter 1

Introduction

Punishment and society in China

Since the beginning of the recorded history societies have punished perpetrators while at the same time attempting to conceptualize punishment. Various accounts have been offered from the perspectives of legal philosophy, sociology and criminology alike to interpret the connotations of punishment and justify the institutional practice of punishment. Thomas Hobbes, in his influential book Leviathan, defines punishment as:

an evil inflicted by a public authority on a person who in the judgement of that authority has done something forbidden or has failed to do something required by the law, and the authority’s intention in inflicting it is to make people more inclined to obey the law.

(cited in Springborg, 2007: 222)

The substance of punishment, according to Hobbes, entails the infliction of some type of harm by a party in authority which causes the offender physical or mental suffering and pain. This medieval perception of punishment has been enriched and supplemented by philosophers in the modern age. H. L. A. Hart (1968: 4–5), for example, in his orthodox analysis of criminal law has developed a classic statement on the concept of punishment which consists of five elements – ‘(1) it must involve pain or other consequences normally considered unpleasant; (2) it must be for an offence against legal rules; (3) it must be for an actual or supposed offender for his offence; (4) it must be intentionally administered by persons other than the offender; (5) it must be imposed and administered by an authority constituted by a legal system against which the offence is committed’.

However, Hart’s doctrine of punishment, particularly with regard to the first element, is perhaps too simplistic, overlooking the fact that the feelings and endurance of pain vary significantly from one individual to another. The intended unpleasantness of losing liberty as a result of imprisonment may not necessarily apply to any ‘ordinary person’, especially indigent and homeless offenders who only demand a shelter to survive their difficult periods in life. Likewise, a wealthy person is unlikely to experience either emotional or mental pain by having to comply with a restitution order. David Garland (1990: 16) contends that punishment is ‘a set of interlinked processes and institutions, rather than a uniform object or event, and is not reducible to a single meaning or purpose’. Drawing on the penological theories developed by Émile Durkheim (1933), Friedrich Nietzsche (1956) and Michael Foucault (1977), Garland reminds us that punishment encompasses multiple layers of connotations and practices across different phases of the penal system. Despite being positioned in the legal sphere, punishment is in effect a social institution, both affecting and being affected by the larger socio-historical context, and should not be narrowly construed as an instrument of crime control which is carried out by a specialized penal apparatus.

Modern theorists, such as David Garland, Loïc Wacquant, Malcolm Feeley and Jonathan Simon, John Pratt, and Nicola Lacey have focused on the sociology of punishment through an examination of the social processes, forces and meanings of punishment in modern Western democracies. Their thesis on the relationship between society and punishment has identified punishment not only as a legal process whereby violators of the criminal law are condemned and sanctioned in accordance with specified legal categories and procedures, but also as a social process whereby functionality and manifestation of punishment are informed by social development and cultural transformation. Through an exploration of criminal justice/penal policies, philosophies and practices, this book aims to shed light on the sociology of punishment in China (The People’s Republic of China) in the context of the state’s socio-cultural transformations over the last 70 years or so. Despite a growing focus on China’s crime and criminal justice in intellectual discussion among jurists, sociologists, criminologists and legal scholars since the late 1970s (Edwards, 1977; Seay, 1998; Dutton, 1992; Dikötter, 2002; Bakken, 2005; Mühlhahn, 2009; Zhong, 2009; Sapio, 2010; Trevaskes, 2010; Cao et al., 2014; Liang and Lu, 2015), punishment and its sociological attributes are generally an under-studied area in absence of systematic and comprehensive investigation. It is acknowledged that Chinese penology, albeit ‘growing in stature, mutuality and utility’ as an object of research (Wong, 2008: 214), is regarded as a sub-field of Chinese criminal law (CCL)/criminology with considerable overlaps between these two themes on research purposes, methods and scope (Hebenton and Jou, 2010). Thus, in the punishment and society literature, there is a relative dearth of indigenous study on China’s penality, nor is there adequate cross-cultural study to understand the particulars of the penal system in contemporary China. As Wong (2008: 214) observed, over the last few decades the ‘focus, methods, theories and style of criminology (penology) scholarship in and about China are clearly and pre-dominantly Euro and Anglo-centric’.

Still, in the Western literature of Chinese criminology, most of the existing research has appeared to position the scrutiny of punishment within the institutional analysis of criminal justice and policing. The general perception that punishment in China is part of the criminal justice system and sometimes utilized interchangeably with social control approaches has led to the limited scholarly attention that addresses it as an independent body of research. Just as the criminology of China is a field of interdisciplinarity concerning law, sociology, psychology, social work and public policy, Chinese penology is a ‘rendezvous subject’ that links to fragmental and unsymmetrical debate arising from legal, philosophical, criminological and sociological examinations, as well as policy and political inquiries. Even though research has been undertaken in China’s punishment scholarship, its focus has been limited to specific penal sanctions – e.g. the death penalty and administrative detention (Biddulph, 2007; Liang and Lu, 2015), principally from a legal and political point of view.

In this book, I aim to fill the gap of existing research by developing a distinctive theoretical framework for China’s penality, exploring it as a separate and complex legal-social system to reveal its implications for historical processes, legal developments, social transformations and cultural discourses alike in the contemporary eras. More specifically, I focus on a comprehensive delineation of the penal development and change in Maoist (1949–1976), reform (1978–2001) and post-reform (2002–) China and investigate how the social foundations, political-economic genesis, cultural significance and meanings across different historical periods have shaped the rhetoric and implementation of punishment.¹ While this book is concerned primarily with the system of penality, one aim of it is to perceive punishment as a ‘social artefact’ (Garland, 1990: 193) to observe the impact social forces and conditions have exerted on penal form, discourse and shift in China. To this end, this book presents a socio-legal analysis of China’s modern penal system. It not only touches on the legal debate of punishment in terms of its legislative and policy transformations, but provides a sociological account of penality to discern its association with a range of social changes that have occurred in the fields of economy, politics and culture over the past 70 years.

In doing so, I introduce some major sociological theories of punishment developed in the Anglo-American countries as a backdrop against which the development of punishment in contemporary China can be better understood and perceived. My intention is not to produce a comparative catalogue of laws and policies that simply describes the similarities and differences of punishment between China and some Western jurisdictions. Nor do I wish to apply the north Atlantic sociology of penality to the Chinese context to test its universality in a culturally divergent jurisdiction – China. Rather, I focus more on unpacking the connotations of these Western theories of punishment as a lens to unfold the trajectory of punishment in China and identify indigenous cultural dynamics and patterns of social and political arrangements that have interacted with and shaped the penal system in this Party-state. While the socio-cultural shifts that have taken place in China are markedly different from those in the Western jurisdictions, I, nevertheless, believe that an examination of the cross-cultural application of punishment adopted in some chapters of this book, when attuned to ‘difference’ and viewing punishment in different social contexts, can shed new light on China’s penality, and more importantly, how it has responded to perpetual social changes in a different way than its Western counterparts have.

My analysis in this book suggests that even though the structure and form of punishment in China have shifted in important ways since the Maoist era, the most significant change lies in the state’s distinctive cultural meanings and social relations that give rise to them. In China, penal culture has been intertwined and meshed with the social changes, economic arrangements and particularly political considerations, which have driven the dynamics of change and the strategic principles implicating contemporary arrangements of punishment. In Maoist China, punishment represented a revolutionary form of justice through suppression and coercion. The political ethos of class struggle permeated the penal system in the first 30 years of the state by means of applying draconian penalties to individuals who were deemed to be political foes in the Chinese Communist Party’s (the CCP) professed antagonistic contradictions. Revolutionary campaigns functioned as a principal venue whereby punishment served as a tool to restore social order and maintain the Party’s political legitimacy. The transfer of power from Mao Zedong to Deng Xiaoping in the late 1970s had a limited impact on the rupture of Maoist penal ideals and practices in China’s economically driven society. During the reform era, penal severity had retained its stature. The Party’s prioritized objective of guaranteeing economic success and increasing concern over social insecurity had legitimized the continuous reliance of the government upon the zero-tolerance strategy for combatting crime and addressing social issues. Despite legislative efforts to formalize the criminal justice and penal system in the last two decades of the twentieth century, the Party’s over-emphasis upon the repressive approach to social disorder, characterized by the launch of a series of ‘Strike Hard’ campaigns, was indicative of the state’s inheritance of revolutionary justice in both discourse and form. However, the post-reform era starting in the early 2000s has begun to witness a decline in penal punitiveness, concurrent with the introduction of a new criminal justice policy of ‘Combining Leniency and Severity’ during the mid-2000s. Perceived as a prerequisite to the realization of a ‘Harmonious Society’ posited by the Hu Jintao administration (Nesossi and Trevaskes, 2016), this penal policy has become a driving force for a reduced extent of harshness in most aspects of penality over the past decade. The Xi Jinping’s appeal to the ‘Rule of Law with Chinese Characteristics’ has reinforced the nuanced application of punishment and fuelled policy and legislative reforms on shifting the Chinese paradigm of penality towards a more rational and lenient culture of justice. The removal of offences punishable by the death penalty, the decrease of immediate execution, the abolition of Re-education through Labour (RTL) and the promotion of non-custodial penalties are among the exemplars of the state’s attempts to advance penal moderation and to downplay the adverse effects harsh justice had at once exerted on legal legitimacy and social stability. Accompanying the rise of moderate penality is a range of existing and new penal measures geared towards a managerialist form of control in the post-reform era. Rather than conveying the messages of repression or retribution, a managerial approach of punishment is founded on an ideal of regulating the risks individuals represent to prevent future offending through risk management and restrictive policing. With the escalation of social conflicts and unrest in the recent decade, a host of administrative custodial measures and community-based penal measures have been endowed with new functions of incapacitation and intervention, utilized more regularly as a means of control and pre-emption as opposed to a reactive response to crime and delinquency.

To introduce these arguments, similar to Foucault’s analytic work on the birth of the prison, I examine an extensive range of criminal justice and penal practices to understand the broader genealogical evolution of punishment in China. Trends in penal policies and representative penal measures are analysed to disclose how characteristic social factors have impacted their formation and route in a culturally divergent fashion. Shifts in punishment, sentencing, policing, social control, penal policy, law reform, crime prevention and treatment of victims are grasped as interconnected elements in a structured field of penal and crime control system. In particular, I thoroughly and critically investigate the rationale and practice of the ‘Strike Hard’ campaigns, administrative detention, community-based sanctions, the death penalty, and some other relevant criminal justice measures to comprehend their historical connotations and socio-cultural factors. Special emphasis is placed on a set of new criminal justice policies and penalties mostly adopted in the post-reform period – e.g. discretionary and conditional non-prosecution, community corrections and criminal reconciliation – to explore their implications for a transformed legal and penal culture that is aligned with the CCP’s new political concerns of social order and stability in the 2000s. Without a discussion on the latest penal changes, we will not have a full picture of the conditions that allow new penal ideas to be influential in China’s era of pursuing a ‘prosperous and orderly’ state ruled according to law with ‘Chinese characteristics’.

The sociology of punishment in the West and China

Since the end of World War II, the penal culture in modern Western societies has experienced several paradigmatic changes. While the post-war decades experienced the continuous growth of penal welfarism centring on measures promoting reformation, rehabilitation and treatment of offenders within the framework of the criminal justice system (Garland, 1990), from the 1970s onwards the beliefs that had allowed penal welfare to thrive have fallen apart and the ideological climate of punishment has shifted towards a punitive end emphasizing expressive justice and harsh sanctions (Garland, 1990; Wacquant, 2009; Lacey, 2013). Starting from the late twentieth century, a substantial body of theoretical and analytical studies have been undertaken to explore the social forces that have driven the penal turns in Western liberal democracies. Criminologists such as Feeley and Simon (1992, 1994), Garland (1990, 2001), Pratt (2007), Wacquant (2009), Lacey (2013), Hinton (2016) and Pifferi (2016) have seen punishment as a social institution which reflects social changes, values and processes, in addition to its role as an instrumental means to pursue penological aims. (Garland, 1990; Simon, 2007; Wacquant, 2009). As Garland (1990: 249) argues,

The sources of penal change and the determinants of penal form are to be located not just in penological reasoning, but also influenced by economic interest, strategies of power, and more importantly “culture” which contains the configurations of value, meaning and emotion.

The sociological interpretation of punishment has attributed the changes of contemporary penal policies and practices in the Anglo-American countries to a variety of socio-cultural forces. The dramatic transformations that have occurred in Western societies as a response to crime during the late-modern era have played crucial roles in shaping penal strategies and practices in the liberal democracies (Garland, 2001). The contemporary penal arrangements in the US and UK, for example, have been shaped by two underlying social forces – the distinctive social organization of late modernity, and the free market, socially conservative politics that came to dominate these two countries in the 1980s (Garland, 2001). As a result, a new crime control culture that underlies draconian penalties and vengeful justice has emerged and supplanted the conception of welfarism that was once championed as the cornerstone of penal practices in the US and the UK (Wacquant, 2009).

One manifestation of this penal trend is the sky-rocketing imprisonment rates (referred to as ‘prisonfare’) by the US government to handle rising crimes following the advent of neoliberalism (Wacquant, 2009). The intensification of penal punitiveness, as contended by Wacquant (2009), is the state’s response to the risks posed by the emergence of a population of urban poor – namely, people who are economically and socially disadvantaged (mostly African Americans) due to the restructuring of the economic framework in the late 1970s. The same neoliberal shifts have also given rise to new practices in punishment aimed at classifying and managing offender groups identified by levels of dangerousness (Feeley and Simon, 1992). The late modern shift towards neoliberalism and consumerism has appeared to lead to new ways of controlling crime and punishing people, which was underpinned by a new concern for risk and methods of managing it. In comparison with the previous forms of penology where responsibility, fault, moral sensibility, diagnosis and treatment of the individual offender were emphasized, the new approach has sought to sort and classify, to separate the less from the more dangerous, to regulate groups as part of a strategy of managing danger and to deploy control strategies rationally for serving ‘actuarial justice’ (Feeley and Simon, 1994: 173).

Studies that outline and discuss penal transformations in the period of economic liberalization are characterized by Lacey (2013) as the ‘neoliberal penality theses’. Despite the lack of a clear conceptual interpretation of ‘neoliberalism’ and ‘neoliberal politics’, this theory refers to the contention that the rise of neoliberalism has promoted a shift in punishment away from the rehabilitation ideal, driven by welfare-oriented policies, and towards punitiveness with draconian laws and managerialism aiming at incapacitation. More specifically, from the neoliberal penality thesis perspective, the reversal of penal rationale and practice coincides with market liberalization and political pragmatism that began to take shape in Western countries in the late 1970s. Overall, the advent of neoliberalism results in penal intensification in the US and other liberal states, characterized by over-reliance upon prisonization and justified as a ‘healthy necessity’ for a society ‘threatened by the gangrene of criminality’ (Wacquant, 2009: 8).

This changing nature of punishment in Western societies can also be attributable to a populist ethos of penality. It is argued that the penal turn towards punitiveness and managerialism is largely a result of politicians’ attempts to boost their own popularity by adopting a populist punitive approach to represent the general public’s attitude to crime (Pratt, 2007). While populism is not necessarily linked to the intensification of penal punitiveness (Hogg, 2013), political elites have appeared to be ‘tough on crime’ to align particular criminal justice and penal policy with the populist demand of harsh justice in a bid to win votes. As such, the increasing punitiveness of punishment over the recent decades in the West seems to be justified by politicians’ effort to assuage the public indignation of social disorder caused by the process of economic deregulation. This populist form of punishment, which is a reflection of ‘a diverse range of shifts in social process and cultural value that have occurred since the advent of neoliberalism’ (Pratt, 2007: 36), has taken shape as a political instrument to promote electoral advantage rather than a penal strategy to reduce crime or to promote justice (Roberts et al., 2003: 5).

While the penological systems in Western societies have gone through rapid and far-reaching changes following the rise of neoliberalism, the penal theories and practices in China have also been evolving in the aftermath of the state’s economic modernization beginning in the 1980s, showing a clear contrast with these developed in the Maoist period. Indeed, modern penality in contemporary China has its early origin in the ancient times. The cultural explanations of current penal forms and manifestations can be traced back to the early feudal periods where the birth of a set of influential schools of thought have shaped and informed the philosophy and discourse of punishment in China.

The legal or penal system of imperial China developed from two dominant schools of thought: Confucianism and Legalism. Drawing on ‘Three Rules and Five Virtues (三纲五常)’, Confucius philosophy regards law and punishment as an auxiliary role in shaping human behaviours, secondary to the concepts of morality and ritualism. It is in part because during the pre-Confucianism times (the Xia and Shang Dynasty) the state was ruled on the basis of ‘the mandate of heaven’, so law and punishment, if any, served as the means to pursue a cosmological system of justice in the form of emperors’ orders and rules (Zhang et al., 2017). More crucially, Confucian scholars believed that people are inherently good and kind, and nature endowed them with five fundamental virtues – benevolence, righteousness, propriety, wisdom and fidelity. Originated in the Spring and Autumn Period (approximately 771–476 bc), these five pillars of the Confucius ideal, together with the three cardinal rules (rulers guide ministers, fat...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Preface
• Acknowledgements
• List of abbreviations
• Index of legislation, administrative regulations, rules, normative documents, party policies
• 1 Introduction: punishment and society in China
• 2 Economic modernization and punishment: ‘Strike Hard’ campaigns, administrative detention and the underclass population
• 3 Populism and punishment: populist penality with Chinese characteristics
• 4 The emergence of lenient justice: new penal culture in post-reform China
• 5 Community justice in urban China: civic participation, rehabilitative ethos and social stability
• 6 Community corrections and crime prevention: restorativeness vs managerialism
• 7 Conclusion
• References
• Index