China: A Powerhouse and Resistor of Restorative Justice

Abstract

China has the largest and most diverse restorative justice (RJ) programs in the world. They are a neglected "elephant in the room" for the social movement for RJ. This thesis contributes to unveiling the puzzle of this RJ project of challenging scale. It investigates the restorative programs universally implemented in the Chinese criminal justice system (people's mediation, public order mediation and criminal reconciliation) and one significant example of Indigenous mediation (De Gu mediation) particularly practiced by the Yi people in southwest China to represent this aspect of Chinese diversity. De Gu sitting with police or judges during criminal trials to help mediate cases is just one important example from this research that reveals the Chinese RJ elephant to be an even bigger and more complex elephant than could have been imagined before the research began. My narrative seeks to grasp De Gu work as a dance with domination that finds Yi vernaculars for pathways to justice that heal and help.

To narrate the universality and particularity of RJ in China, a multi-layered analytic architecture is utilized to depict how particular mechanisms and modes have operated at various levels in China. At the macro and meso level, thick historical narratives are explored to capture the dynamics and continuities of ideologies, institutions and policies to answer the broad question of why the Chinese government promoted variegated restorative reforms in 2010 and 2012. Based on interview and observational data, as well as other materials that help triangulate findings, the thesis then probes the micro-implementation of programs viewed through three theoretical lenses: 1) Street-level bureaucracy: the interplay between front-line police officers and mediation programs as a reflection of the party line of the Chinese Communist Party (CCP) in driving RJ reforms; 2) Motivational postures: the different social distance that Chinese police, prosecutors and judges place between mediation programs and themselves; 3) Legal pluralism: mutual constitution of state law and De Gu mediation.

Based on this multi-level analysis, the thesis argues that top-down RJ reforms through mediation programs in China were driven by a political rationale that prioritizes social stability and harmony. The Chinese government wants RJ to function as a crucial mechanism that parallels the punitive "Strike-Hard" ideology to decriminalize minor offenders and resolve social conflicts at the grassroots level. However, the actual implementation of RJ in China is confronted with a conjunction of political ideology, huge daily workloads, performance metric mindsets of legal professionals and the Party, and cultural resistance from Indigenous communities. RJ essentials, such as voluntariness and stakeholders' needs, are found to be widely ignored and sacrificed. The thesis diagnoses state-sponsored RJ reforms in China as a generally thin version of RJ due to the weak integration of restorative Confucianism with roots in ancient Chinese society and the lack of a "bottom-up" RJ movement supporting excellence and critique impelled by civil society advocacy. The research reveals that while there is a lot of civil society engagement, such as through De Gu and a million civil society trained mediators, what is lacking is independent civil society critique and advocacy of a social movement for restorative justice. Civil society activism of a kind there might be, but all subject to Party veto and shut-down at the flick of the state's finger. In this sense, RJ in China is still a marginalized part of a state Titanic that resists genuinely overturning embedded "Strike-Hard" ideology, resists embracing authentic RJ values, and resists tempering party-state domination. This thesis offers a more complex understanding of the institutionalization of RJ in mainstream justice systems and variegation in the character of RJ penetration in civil society.