A review of the new provisions for sanctioning mentally disordered offenders in China, in a broader historical context

Reforms of the criminal justice system in China in recent years have included the 2012 Code of Criminal Procedure (CCP), which resulted in new disposals for mentally disordered offenders. From a Western perspective, changes in Chinese criminal law are sometimes clichéd as toothless window dressing, but they may represent a genuine step forward in safeguarding human rights. Taking a historical perspective, this paper reveals that in the East, as much as in the West, there is a 'moral tradition' of not punishing mentally disordered offenders who are not considered responsible for their acts. There are clear differences in disposal for those acquitted having been found 'not guilty by reason of insanity'. Whereas Western jurisdictions have offered (criminal) courts the opportunity for commitment in (forensic) mental hospitals from the early 19th Century, in China, disposal has remained, until the recent changes, the responsibility of the administration (mainly the police) or the family of the offender. A few high profile cases brought to light the inadequacy of these arrangements and the general disregard of obvious mental health issues when sentencing offenders. There was lack of clarity regarding who would take responsibility for treatment and issues of future public protection arising from a mental disorder. The 2012 CCP introduces the power of mental health commitment by the judiciary for those found non-responsible for an offense because of a mental disorder. Similar to provisions in Western jurisdictions there remain human rights concerns regarding aspects of 2012 CCP and the role of 'preventive detention' for mentally disordered offenders on indeterminate secure mental health detention. Nevertheless, the shift to judicial decision making in such cases and the possibility of mental health commitment are welcome steps in improving the human rights of this vulnerable population.