Re-education through labor (RETL) is a form of administrative detention employed in China that is conducted outside of the formal criminal justice system and is designed to rehabilitate the behavior of societal "agitators." It has been utilized more in recent years than in the past because flexibility in the formal criminal justice system has been diminishing with the modernization process. While Chinese officials have maintained that RETL is a necessary and effective device for sustaining societal harmony, mounting pressure prompted Beijing leaders in February 2003 to endorse new prohibitions on RETL administrators to improve the image of these centers.

For the past four years, Falun Gong members have been the target of aggressive Chinese government crackdown and caught the attention of human rights group worldwide. The group was banned after being marked an "evil cult" on July 22, 1999. Some say the banning and crackdown occurred because of the fear that such a collective and solidified group could pose to the Chinese Communist Party (CCP) governance, while others maintain such measures were necessary to protect societal stability and public order from the harms that could emerge through diffusion of the group's message and actions. The Chinese government has taken Falun Gong's mobilization and expansion efforts very seriously. Human rights groups have been critical of China's use of RETL and its treatment of Falun Gong members. In fact, Falun Gong filed a lawsuit in U.S. federal court that was supported in an amicus curiae brief by more than three dozen members of Congress, against former Chinese leader Jiang Zemin for acts of genocide on Falun Gong members. While this lawsuit was dismissed by the U.S. District Court in September 2003 pursuant to the doctrine of sovereign immunity, the dismissal likely did not spell the end of the controversy.

This article describes, from a cultural and historical perspective, why the vast majority of detained Falun Gong members, perhaps 99% of the approximately twenty thousand who have been confined, have been commonly subject to RETL rather than to the criminal justice process. The supposition herein is that Falun Gong has been caught between China's gradually closing door of flexibility in the law, brought about by a government desire to improve the formal criminal justice system; and the gradually opening door of improved individual rights protections vis-?vis collectivist interests. Consequently, applying RETL to Falun Gong practitioners maintains the traditional cultural approaches of behavioral modification for individuals/groups that fall too far outside the parameter of what the government deems is acceptable societal conduct. Finding justice in this situation becomes more enigmatic because it is unfolding within a dramatically changing and volatile society still under the administration of the CCP and under the microscope of the global community. Falun Gong has arguably posed the most significant challenge to the criminal justice reform process and to CCP power in the past decade.

This article examines the positions of both Falun Gong and the Chinese government and endeavors to achieve resolution within the framework of human rights law and respect for state sovereignty. Section II considers the Chinese government's response to Falun Gong's emergence, while section III addresses global human rights standards and how tradition and culture have influenced the Chinese government's criminal justice modernization process and its response to Falun Gong members who have apparently violated Chinese law. Section IV appraises the risk that a consolidated collective group could have on the current state of legal and economic modernization in China and balances the threat of instability against human rights protections for Falun Gong members.