Keywords: us and china cjs, us criminal justice, china criminal justice
The two criminal justice systems that shall be discussed in this paper are those of the United States and that of the People’s Republic of China. When comparing and contrasting these two systems one should start with the premise that both are instituted in their countries in the attempt to curb the proliferation of crime, apprehend offenders and deter potential offenders. Both the U.S.’ and China’s criminal justice systems make use of a court system, police enforcement organizations and detention/correctional facilities. However this is as much as similarities go as the two systems are radically different since they are based on ideologically opposing government structures.
The U.S government is based on a free market capitalist economy supported by a representative democracy. On the other hand that of China is founded on a social communist ideology. As for demographic figures, the U.S. has roughly 355 million citizens while China has well over one billion, which makes up one fourth of the world population. Klaus Mühlhahn (2009), in his book “Criminal Justice in China”, states that People’s Republic of China (P.R.C.) was founded in 1949 under a socialist rulership. From that point onwards a push was made to establish basic legislation with regards the administration of the criminal justice and enforced nationwide.
The U.S. government is hierarchally based on a unified organization where power is shared between the federal and state governments. Therefore this means that the political system secures autonomy of each state in the U.S. but at the same time adopting a centralized government (Gaines and Miller, 2006). The U.S. justice system is derived from the British common law tradition. Common law is the law that is agreed upon by the common people and exists in two forms, Lex Scripta (written law) and Lex non Scripta (unwritten law).
On the other hand Mühlhahn (2009), says that the Chinese justice system is quite difficult to put under one unitary system. This is due to the fact that the Chinese criminal justice system was repeatedly reorganized in the wake of political changes and internal party disputes since 1949, when the communist party took over. Mühlhahn (2009) also notes that the Chinese justice system under socialism is not an independent administrative system but was integrated into a network of social control and political mobilization. The Chinese Criminal Law is based on the ideological precepts of Marxism, Leninism and Mao Zedong. Its tasks are to use punishments to resist against all revolutionary or criminal behaviour, for the sake of protecting the Chinese autocracy.
Gaines and Miller (2006) explain that the police forces of the United States are the successors of Militias originally instituted in the early colonies to protect the population and control the Native Americans. The different forming States developed their own security forces and these operated autonomously. Major cities instituted their own police forces, which function under the control of a city government (Gaines and Miller, 2006).
According to Gaines and Miller (2006) Currently the U.S. police forces are structured on local/city/county and federal/state levels, thus having a federal system. All local policing duties are shared between local municipalities and rural localities. Cities, towns and villages are able to institute their own police forces, while others, usually rural localities, rely on a county Sheriff’s department for the task of enforcement and policing. Usually the size of police forces in the U.S. is directly proportional to the population of the area being controlled. The 50 States forming the U.S. also have their own police forces that are ascribed to different regions and often patrol undeveloped rural areas. The job of such agencies include investigating crimes against the state such as alcohol licensing violations or welfare fraud, fish and game violations, and highway traffic infractions (Gaines and Miller, 2006).
According to a statistic of the U.S. Department of Justice (2008), on average the ratio of police to population in the U.S. is about 2.3 officers per thousand residents, however larger cities generate grater ratios. This police force ratio has stayed fixed around 2.21-2.34 police officers per 1000 civilian population for nearly 30 years.
Next up on the U.S. hierarchal police system is the Federal Government’s police force that subdivided into various other agencies (Gaines and Miller, 2006). There is the Federal Bureau of Investigation, which is independent of any administration. The F.B.I. intervenes when federal laws are infringed, an interstate crime is committed, or if national security is threatened. However the last case scenario has been taken over by the Department of Homeland Security established after the attacks of September 11th 2001. The U.S. has about 20 federal law enforcement agencies, which also include the Internal Revenue Service Criminal Investigation, U.S. Secret Service, Postal Inspection Service and U.S. Marshal’s Service. Further more there exist the Drug Enforcement Agency, the Treasury Department, the Alcohol, Tobacco, and Firearm Agency and the Immigration and Naturalization Services handle illegal immigrants while the U.S. Customs officials deal with border infringements. However this specialization of the different policing agencies has its drawbacks. Problems can arise due to jurisdictional issues, when what one should really take care of is the upholding and maintenance of the law (Gaines and Miller, 2006).
According to Mühlhahn (2009) the P.R.C. employs around 2 million police officers, of which most work is small offices that serve communities of roughly 10,000 citizens. The main policing agency in the P.R.C. is the People’s Armed Police (PAP), which includes about 700,000 officers. This agency was instituted in 1983 and was formed by incorporating disbanded units of the People’s Liberation Army (PLA) on domestic defence duty and armed frontier defence and fire fighting. The rise of the PAP shows how Chinese leadership is more concerned with domestic security than it is with foreign threats (Mühlhahn, 2009). The PAP’s main task is to deal with domestic disturbances, by acting as riot police, guarding government compounds and also foreign embassies. It usually handles border defence but in some cases it is requested to back up local police. Recently it has been employed to suppress anti-government protests.
The Public Security Service (PSB) is both a local police and the Chinese equivalent of the Secret Service in the U.S. The P.R.C. justice system also employs paramilitary armed police and more than 1 million security guards. Quasi-police force known as “cheng guan” also operates in China (Mühlhahn, 2009). These carry out tasks deemed unpopular by the citizens, such as collecting fines and tax money, often these are just thugs hired by the official police to carry out such tasks. The Chinese government introduced a new special unit in December 2008, to counter gun-related crimes and organized crime such as gambling rackets, organized prostitution, drug production and trafficking. By 2009 China’s public security budget was increased by nearly a third, to $4.2 billion partly to tackle internal stresses related to the unrest in Tibet and western China. Also this increment in the public security budget came about as a result to unrest brought about by unemployed workers and other problems related to the global economic crisis (Mühlhahn, 2009).
In the past, police forces in the U.S. have been accused of corruption and the ‘Good-Old Boy’ network of hiring practices. Also in recent years charges of racism, racial profiling, and use of excessive force have been reported by citizens and related organizations (Gaines and Miller, 2006). In China family members of victims of crime have often been criticised police for their incompetence and reluctance to make sensible effort towards solving cases that affect them. Another criticism directed to Chinese police forces is that these have a reputation for being corrupt and connected to smuggling. Also citizens, particularly in rural areas, regard these with suspicion. Chinese police have traditionally been more involved in maintaining government control than solving crimes, and this is directly related with China’s political ideology. (Mühlhahn, 2009).
As for the US court system, this is a dual judiciary system, of which the two constituent parts (federal and state) function independent of each other. The federal judiciary system includes district courts, circuit courts of appeals, and the United States Supreme Court. The state system includes trial courts at the local and state levels, intermediate courts of appeal, and state Supreme Court (Gaines and Miller, 2006). The primary agents working along each other are the judge, prosecutor, and defence lawyers in the U.S. system.
The U.S. law is derived from four main sources, which are constitutional law, statutory law, administrative regulations, and the common law (Gaines and Miller, 2006). The most important source of law is the United States Constitution, under which all other laws fall. No law can contradict the U.S. Constitution. As already stated the U.S. follows the principles of Common law that were inherited from English jurisprudence. This tradition holds that a decision taken in court is always made on the principle of precedent. This means that each case previously resolved serves as reference and guide for new cases. New aspects of law may be determined or discovered and thus a precedent arises. The U.S. justice system allows for presumption of innocence until proven guilty, plea-bargaining, trial by jury, and the right to a quick trial (Gaines and Miller, 2006). These features compose the U.S. justice system which is flexible and according to Gaines and Miller (2006) caters for the citizen’s needs in a batter way.
Chinese Law is based on the Constitution, of which Article 28 declares: “The State maintains public order and suppresses treasonable and other counter-revolutionary activities; it penalizes acts that endanger public security and disrupt the socialist economy and other criminal activities, and punishes and reforms criminals.” According to an article by Jeffrey Hays (2008), the main task of the Chinese justice system has fundamentally always been to protect the interests of the state rather than the individual and to keep the population under control. There is no independent judiciary in China and courts are regarded as weak and subordinate to the Communist Party and the National People’s Congress.
The court system of the P.R.C. is divided into two types, Courts of General Jurisdiction and Courts of Special Jurisdiction. The first type consists of the Supreme People’s Court and the local people’s courts. The second type includes courts of the first instance, intermediate courts that handle important local cases for the first instance and hear appeal cases from the basic courts and the high people’s court responsible for issues of provincial level. As for Courts of Special Jurisdiction there exist the Military Court of China, Railway Transport Court of China and Maritime Court of China (Hays, 2008),
According to Hays (2008) Unlike in their U.S. counterparts, in Chinese courts unlawfully obtained evidence is not excluded in court and an accused person has no right to remain silent but has the duty towards the state to speak, often after administration of corporal punishment. According to Amnesty International, when the Criminal Procedure Law was revised and promulgated in 1996, commentators pointed to various articles, which although did not explicitly state that suspects were to be presumed innocent, when taken in unison the presumption of innocence could be inferred.
The penal system of the U.S., like the judicial system, branches into federal, state and local levels. The prison system is supported by governmental funds, in the form of tax revenue from federal (corporate income), state (sales) and local (taxes) revenues. Is also receives funding through Inter-governmental transfer, in the form of federal grants and state grants. Gaines and Miller (2006) sentencing within the US judiciary system are considerably lengthier than those of other western countries and many states have endorsed a three strikes system which forces the judiciary to sentence a suspect to a life term in the case of a third offence (Gaines and Miller, 2006). The US’s penal system has a huge problem because of overpopulation of convicts and thus in order to counter this many states have resorted to the privatisation of prisons. Other problems include the imprisonment of the criminally insane, increase of sexual offenders, dangerous offenders, gangs and drug smuggling in the prisons.
The aim of the penal system in China is to reform criminals, however this is carried out by means which in the west one might deem unacceptable. The US’s penal system on the other hand is instituted to punish the criminal and protect the public. Both systems endorse capital punishment as their most extreme sanction and such actions have roused many heated debates within modern human rights exponents.