Criminal Reconciliation in Contemporary China: An Empirical and Analytical Enquiry, by Jue Jiang. Cheltenham, UK, and Northampton, US: Edward Elgar Publishing, 2016. v+292 pp. £85.00 (cloth).
This impressive book, based on Jue Jiang’s PhD thesis, examines the operation of a new marginal institution in China’s criminal justice system: criminal reconciliation between the victim of a minor crime and its perpetrator. The program allows minor offenders, especially juveniles, to escape prosecution or a sentence under certain conditions. A criminal reconciliation agreement is reached if 1) an offender who has committed a minor offence admits his or her guilt, makes an apology, and offers monetary compensation; and 2) the victim of the offence accepts the apology and compensation and expresses foregiveness to the offender. The process is initiated and supervised by a prosecutor or judge and can be facilitated by lawyers or “significant others” such as school principals or community leaders.
Diversion programs abound in mature legal systems, including police cautions. Examples include the Police Superintendent’s Discretion Scheme (PSDS) in Hong Kong; various forms of restorative justice in Australia and New Zealand; and Victim-Offender-Reconciliation (VOR) in North America. The underlying conceptualization is the same: the normal processes for trying and punishing crimes has a potential to reinforce a criminal identity and should be avoided if possible. China follows that international trend, and as Jue Jiang notes, China also has a long tradition of community-based policing, correction and dispute resolution.
Much of the book is dedicated to tracing the genesis of the system in China, the academic and policy debates surrounding its introduction, the formal procedures and conditions, the unique Chinese features in comparison with counterparts elsewhere, and most importantly, criminal reconciliation’s operation on the ground, the nitty-gritty of the bargaining between the parties, and their frustrations. Not surprisingly, Jue Jiang finds a wide gap between the formal rules and procedures of criminal reconciliation and its operation in practice: rules are routinely disregarded; parties are coerced into participation; and compensation replaces other noble goals such as harmony in society and education of offenders and becomes the principal and sometimes the only consideration. Surprisingly the actual criminal reconciliation operations are sometimes more time-consuming and costly than the formal process.
It surprises no one that formal legal rules are not a controlling element in the operation of China’s criminal justice system. The real contribution of the book is its attempt to use the criminal reconciliation system as a case study to explore the functions of hidden informal rules in the decision-making process and the incentive structure that the prosecutors and judges perceive. Declaratory and prohibitory rules abound and are important, but they do not apply on a regular basis. What really matters for the operation of an institution are the rules that affect the performance assessments, incomes, and promotions of legal actors and that make their work easier or harder. As it happens, those rules are often informal, ad hoc, highly localized, and often contradict legal rules.
The book highlights two such rules that apply to the operation of criminal reconciliation. First are quota controls, which are a particular Chinese responsibility system that requires prosecutors and judges to complete a number of criminal reconciliation cases each year to satisfy their job requirements. So like it or not, following procedures or not, some victims must give in and be persuaded to forgive the perpetrators. Although this sometimes is a time-consuming process, an enterprising prosecutor can achieve the goal without much hassle. Second, money talks. As Jiang points out, the best and often the only way to persuade a victim to forgive an offender is through monetary compensation. Criminal reconciliation offers a legitimate platform for money to change hands. As a result, an offender pays to have his or her sentence exempted or reduced; and a victim, in exchange for forgiveness, receives a payment that he or she would otherwise not receive under the legal system. The main task for the prosecutor or judge is to identify suitable cases for criminal reconciliation and then facilitate the bargain. Once the amount of money is agreed upon, the matter concludes, happily or not.
Jiang takes a critical view of restorative justice as it operates in China, as often being arbitrary and involuntary. But in criticizing the flexibility of diversion and the vast discretionary power of prosecutors and judges, Jiang may have inadvertently marginalized the harshness of the formal system, which criminal reconciliation aims to spare some juvenile offenders from. Occasionally, too, Jiang may overemphasize the importance of formal procedures and legal rights in dealing with juvenile offenders. Given the conditions of criminal justice in China, and elsewhere for that matter, any alternative to prosecution and prisons is a good thing. For young offenders who have committed minor offences, informal practices and discretionary power are important to soften the harshness and rigidity of formal institutions.
One issue that requires further study is the relevance of the police. What are the positions of the police in relation to criminal reconciliation in China, and why, unlike police elsewhere, do they decide to opt out? Police are the first port of call in the criminal process and they have the best opportunities to intervene. They are also embedded in communities and are best placed to deal with matters like criminal reconciliation. It is ironic that prosecutors and judges have to manage matters that the police can often handle better and more cost-effectively. China has a lengthy and harsh system of police detention during investigations, and once these are finally done, the prosecutors and judges are able to conduct criminal reconciliation that undoes whatever the police may have prepared for the prosecutors.