I am grateful to Xinyi Xu and Dorothy Bracey for their comments. In addition I have drawn upon the following sources in my observations about Chinese criminal justice: R. Troyer and D. Rojek "Introduction;" "A. Turk "Political Deviance and Popular- Justice in China: Lessons for the West;" "D. Bracey "Policing the People's Republic;" M. Klein "Professing the Uncertain: Problems of Lecturing on Chinese Social Control;" R. Troyer, "Conclusion," all in R. Troyer, J.P. Clark and D. Rojek (ed.) 1989, Social Control in the People's-Republic of China; H. Fu "Police Reform and Its Implications for Chinese Social Control;" International Journal of Comparative and Applied Criminal Justice, Spring 1990; H. Fu, "Police Accountability: The Case of the People's Republic of China," Police Studies, Fall 1991
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Gary T. Marx
What is the relevance of a book on American covert police investigations to China today? There are a number of reasons why this book may be of interest to Chinese scholars, law and criminal justice practitioners and the general reader concerned with how a society balances liberty and order and how this changes with modernization.
First the book says something about American society. What are undercover practices doing in the United States with its hallowed democratic traditions? After all, the United States had a revolution in 1776 against autocratic government and sought to avoid the despotic police traditions associated with Europe. Ironically the answer may partly lie in the strength of those very democratic traditions.
In the United States, police face pronounced formal limitations on their right to search, use coercion and force, arrest, and interrogate citizens. These come from both outside the police (the executive, legislative and judicial branches of government) and in the form of bureaucratic rules within the police. One consequence of restricting the police use of coercion and rigidly controlling police behavior after arrest, is the increased use of deception and of sophisticated technology that can transcend the unaided senses. These "soft" means are generally subject to fewer legal controls. There is something of a tradeoff. In restricting the use of coercion by police they have increased their use of deception. While there has been some spread of U.S. style-undercover practices to Europe; they are much less common there, where police have greater power to intervene in citizen's lives in other ways.
The 1990s saw the end of the cold war and the expansion of Western democratic practices and ideas of political liberty. Human rights questions have become a global concern. These directly involve issues of police surveillance, the topic of this book.
Certainly there are instances of police abuse of civil liberties in the United states. International human rights organizations such as Amnesty International and groups such as the American civil Liberties union occasionally bring-violations involving secret police to public attention. English expressions such as the "pot calling the kettle black" and "let he who is without sin throw the first stone" remind us that no person or complex society (or organization for that matter) ever completely lives up to its own ideal image. Yet it may be of interest to a Chinese audience to see how a society that prides itself on being democratic and operating under law, nevertheless sometimes makes use of secret and intrusive police tactics for gaining evidence regarding traditional crimes (rather than political crimes.) In the best of circumstances, this is carefully controlled and subjected to judicial review. .
As a society moves from one that is rural, relatively homogeneous, static and immobile, to one that is urban, heterogeneous, and mobile, the emphasis on traditional community is weakened and individuals are increasingly strangers to each other. Residents of the modern city cannot "watch" each other or maintain order in the same way as was the case in the village or the static neighborhood. As society becomes more fragmented, diverse and changing, social control becomes more formalized and the rights of the individual are given greater attention. The police practices described in this book are those of a modern urban society.
But beyond these general social changes, this book is relevant to China in light of changes since 1982 involving the police and law. In response to the cultural revolution, formal means of control have taken on increased significance. There is less emphasis on the masses in participating in security work and greater reliance on professional organizations.
There has been reorganization, expansion and differentiation of police agencies (e.g., new ministries of Justice and Supervision and internal security, border and municipal police and special units concerned with corruption and white collar crime.) There is a new code of law. As police become more formally organized and professionalized and as police behavior is more subject to the rule and review of law, more of the forms of social control found in Western countries are being adopted in China.
Chinese police officials attend training seminars and conferences abroad, and argue for the need to improve training, adopt modern management practices and make use of the latest technologies. Contact with police forces outside of China is clearly increasing. This will likely mean not only the exchange of ideas about policing, but cooperative endeavors.
As China makes increased use of formal legal institutions questions about individual rights and the quality of evidence and how it was gathered become much more important. The 1982 Chinese constitution requires approval of a people's procuratorate before an arrest is made; prohibits unlawful detention and searches of persons and homes, absent the needs of state security and the investigation of crimes. There are new efforts to train lawyers and judges.
Undercover means, when appropriately done, can offer very persuasive evidence. A videotape of a criminal transaction can demonstrate whether or not police stayed within the bounds of policy and law and respected individual rights and it can helpful in determining the truth, beyond the traditional competing claims of witnesses' testimony in a court after the fact.
As this control becomes more formal and more removed from local citizen involvement, the question of "who guards the guards?" takes on new meaning. Formalism increases the separation of the police from the people and policing can come to be seen as something imposed upon a people--rather than something growing organically from them. Amid recent concerns in China over police and party members abuses of power, undercover methods offer a double-edged sword. They can be a means by which those in authority abuse their power and illegally and immorally advance their own private or organizational ends. Even if the tactic is not used in the pursuit of corrupt end the sincerity and commitment of authorities to use this powerful tool to fight corruption within their own ranks is by no means assured. English expressions such as "you scratch my back and I will scratch yours" and "one hand washes the other," capture this reciprocity and imply the reluctance of those in authority to aggressively control violations within their own ranks.
But ironically this need not be the case. The tactic can be used internally by government (or different branches of it) against itself. Various agencies may watch each other and their own members. In an article (G.T. Marx, "When the Guards Guard Themselves: Undercover Tactics Turned Inward" Policing and Society vol. 2, 1992) written after the publication of this book, I describe how undercover tactics have been legally used in the United States by the government against itself, in an effort to fight corruption. The question of just who can use the tactic, under what conditions, against whom is of the utmost importance.
The rise of the practices described in this book is also related to modern economic systems and the increased opportunities they offer for white collar crime and corruption. China is certainly no exception to this. "Guanxi" --using friendship and connections and offering gifts to get things done, was not dependent on a modern economy. Yet its costs to the society may increase in the contemporary age. With modernization and contemporary economic changes, new forms of crime are appearing and old forms may become more costly. New forms of criminalization appear, partly as a response to the passage of new rules required to guide a complex economy. There are many new opportunities for, and new types of, violation.
White collar crime is very different from stealing a bicycle. It is likely to be more hidden, consensual (there may be no easily identified victim or "smoking gun,") and specialized, and it may go across local and international jurisdictions. Even if there are potential witnesses, they may be intimidated about reporting to authorities and testifying. The detection of complex white collar crime can not rest on neighborhood security defense committees. Well organized, low visibility violations seem to call forth low visibility organized means of discovery. Infiltration, contrived crimes and electronic surveillance can also be powerful tools for ferreting out organized corruption in government and gangs engaging in narcotics, prostitution, extortion, racketeering and smuggling. These activities appear to be increasing with a market economy.
But paradoxically, the concomitant growth of an educated middle class is likely to exert popular pressure for apolitically and socially (not only economically) more open country. In the long-run economic growth may foster a more open and democratic society, as the cases of Taiwan and South Korea suggest. Maximizing economic growth requires efficiency. Widespread corruption (e.g., the demand for payoffs by local officials) undermines this. Sophisticated undercover operations directed against white collar violations within a system of democratic laws may aid the economy and can enhance public support.
The increased involvement of China with foreign businesses and in joint economic ventures means that they will bring with them social control technologies such as those described in this book. Entrepreneurs seeking to sell control technologies and training will not be far behind. They will promise electronic and scientific salvation based on the latest high-tech police methods. It is important that these be understood and that their short and long-run consequences be known. In the United States for example the polygraph (lie-detector) is prohibited by law in most contexts because it is seen to be too unreliable. But there are no laws against exporting it.
With an international economy and the ease of travel and communication, cross-border crime and cross border social control are increasing. Since the mid-1980s China has belonged to the international police organization called Interpol. Cooperative law enforcement actions will become more common.
Beyond these contemporary social and economic changes that make it likely that western style discovery practices will become more prevalent in China, traditional Confucian ideas would seem to be supportive of, or at least consistent with, covert practices.
The optimistic belief that humans can be changed for the better supports an emphasis on prevention and early intervention (apart from clear evidence of wrongdoing). Thus, rather than a criminal justice investigation as a means of finding out if a violation has occurred for purposes of retribution or restoration after the fact, Chinese culture seems to put much greater emphasis on early intervention to avoid an undesirable outcome at the start. One type of undercover operation (preventive) seeks to stop harm from occurring. This book describes many examples of preventive or anticipatory investigations. To a greater extent than in the United States, the goal of criminal justice is not only to secure justice, but to help the potential offender. This may make covert investigations attractive, since they can offer an early warning system. This is not used very extensively in the West because of requirements that police have some prior reason to suspect a person before setting up an investigation. To have this usually requires that the harm has already been done.
In China there is an emphasis on moral instruction and setting good examples. The belief that humans learn through imitation and proper models of behavior might support contrived undercover operations in which (unbeknownst to the general public) cooperating subjects are "tested" with an attractive temptation, which they then reject. This would then receive widespread publicity as ideal behavior.
But reverse models may also prove to be attractive. The Chinese police emphasize legal education. This too can be supportive of undercover investigations as public demonstrations intended to send a message that 1) any corrupt opportunity might really be a police trick (in English a "sting") 2) inform people of what actions are illegal and 3) deter or scare people who might be prone to break the law, by giving them examples of what happens to those who do. This latter factor may be particularly important in China, given the importance of saving face. It may serve as a more powerful deterrent than in the West, where the need to avoid the shame and ostracism that can flow from "being caught in the act" seems weaker.
The respect for tradition and hierarchy and the related lack of a tradition of privacy in China, at least as it is understood in the West, also create a receptive environment for surveillance and interventions by the masses and the state. The greater priority given to the needs of the community rather than to the needs (and rights) of the individual makes it easier to justify invading personal space and crossing boundaries that in the West can be crossed only with strong justification, and often prior approval by an independent judge.
The use of such tactics is also supported in China by the greater subordination of private to public interests and the idea that government should play a very active role in enforcing morality and "correct" behavior and ideas. This can lead to zealous moral crusades, a blurring of the lines between morality and law, and the idea that the moral superiority of the ends sought makes the morality of the means used irrelevant. In a complex and diverse world there is of course often more than one right way. Means have a moral quality, just as ends do. Indeed attention to this moral quality is an important factor differentiating criminal justice from the merely criminal.
The book offers cautionary tales of what can go wrong and what is at stake, if greater use is to be made of these tactics. These tactics can be very powerful. Yet as with any very strong medicine there are great risks as well. This book describes and analyzes many of these practices and the costs that accompany them. It offers a way to think about what is it stake when the state grants formal power to itself to intrude into the lives of its citizens. The book deals both with the empirical (what is) and offers a way to think about the (ideal)---what ought to be.
I hope the book can encourage discussion of the meaning of the public and the private in an age of electronic surveillance and changing relations between the state and its citizens. The potential dangers of undercover policing the book describes can increase the reader's awareness of what individual privacy is and of what happens when the state, or even private individuals, can secretly cross boundaries that protect the integrity of the self and the social group and that are necessary for the exercise of basic human rights.
Finally I hope the book can encourage debate about the proper role (and limits upon) the awesome power and technology that modern states have at their disposal. Reasonable persons may disagree about the proper role of government, the relation of the criminal justice system to the party in power, and where the lines between the public and the private, liberty and order, and the state and society are best drawn. But it is vital that these issues be discussed and resolved in a democratic fashion. If this book can contribute to that discussion in some small way I will be very pleased.
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