Studying Laojiao in China from Criminological Perspectives

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.