Comparative Criminal Law and Enforcement: China

There is a tension between the demand for order and stability and the demand for reform and liberalization. This tension has created a dual criminal justice system in China. On the one hand, there is the routine and institutionalized criminal process, in which legal bureaucrats process criminal cases within their perspective institutions according to legal procedures, institutional position, and personal interests. This routine system, despite the drawbacks and abuses, is characterized by increasing professionalism and relative institutional autonomy.

On the other hand, there is the arbitrary criminal system, which is periodically superimposed by the CCP on the routine criminal process. When that occurs, the criminal justice institutions lose their institutional autonomy, and the institutional mandate gives way to the political imperative. There is a sudden political takeover of the criminal justice system. This arbitrary system is characterized by periodic campaigns against crime, commonly referred to as hard strikes ( yanda).

Common crimes and the public's fear of them have been perceived as threats to the party's political order and a challenge to the party's legitimacy. To restore public confidence, the party resorted to yanda. In July 1983, the former paramount leader Deng Xiaoping ordered the police to launch several mass campaigns against violent crimes and to solve the crime problem within three years. Under political pressure, the police rendered swift and brutal justice to ensure political stability. It was expected that the legitimacy deficit could be compensated for by effective crime control. Yanda did not stop in 1986; it continued and has become a permanent feature of China's criminal justice system.

Over the last decade, yanda has become more aggressive. The term campaign has been replaced by war or battle. The soldiers and armed police have become more visible in the operation. The period of the operation is prolonged to a campaign with different battlefields and well-planned phases. It took three years to accomplish the national war on theft. The war expands; there are different battles on different crimes organized by different levels of government, often carried out simultaneously. Rights of the accused and legal procedural requirements are routinely bypassed and ignored by the police during yanda. Police, prosecution, and judges are required to work in a streamlined fashion in order to expedite the process. Criminal defense is virtually suspended and capital punishment is encouraged. Justice is rendered as speedily and as severely as possible. Those who committed violent crimes are regarded as the enemy of the state and treated as such.

While the yanda approach to crime can temporarily suppress the impetus of crime and reassure the public, the police have paid a high price for this problematic method of crime control. The military style of policing results in high casualties among the officers, prolonged work hours for the front-line officers, and degeneration of public relations, and, more importantly, has subverted routine law enforcement. The success in controlling crime is highly exaggerated. Each yanda creates a wave of arrests and convictions. But when it is over, another crime wave is soon recorded, causing another yanda. The periodic crackdown on crime created a vicious circle of crime and policing in post-Mao China.

Each yanda leads to a detection of a great number of crimes and the arrest of a great number of suspects. It demonstrates the seriousness of crime, the urgent need for a solution and the indispensable position of the police. The criminal justice institutions have strategically used crime statistics to bargain for more powers and resources, and at the same time to prove their effectiveness in combating crime. Streets are safer immediately after a terror of yanda, and the public feel more satisfied with social order. Yanda thus becomes the self-fulfilling prophecy that the police are indispensable to the legitimacy of the CCP and the security of the state.

By the late 1980s, it became abundantly clear to the police that yanda was not the solution to the problem of crime and public disorder. Without yanda, society becomes ungovernable, but yanda relies on destructive internal warfare to maintain order. China is addicted to this type of crime control, and it appears to be very difficult to break the habit.