Vietnamese legal thought with regard to the treatment of criminals is the result of three major influences: classic Confucianism, the Napoleonic Code, and Marxism-Leninism. The relevant Confucian concept is that society is to be governed not by law but by moral men and that crime is symptomatic of an absence of virtue that engenders conflict and disharmony. Most important, the Confucian ethic provides no principle of judicial administration. In imperial China, justice was an interpretation of the moment by the emperor and his mandarins, meaning that in every instance imperial will was superior to the law. The spirit of the law the French brought to Vietnam was that guilt should be determined by fair and impartial means and should be assigned appropriate punishment. However, French colonialism inculcated a view of the law as something to be manipulated and the courts as institutions to be bribed or subverted. The result was a general lack of respect for the judicial process. Marxism-Leninism added to this attitude the perspective that crime is a reflection of environmental factors that victimize the individual by turning him into a criminal. The proper remedy for this condition is to eliminate the causal factors while rehabilitating the criminal. The combination of the three legacies has produced in Vietnamese society a legal philosophy that is inquisitional rather than adversarial, seeking reform rather than punishment. The system imposes on the individual and the state the responsibility of bringing all members of society to a condition of self-imposed moral rectitude in which behavior is defined in terms of collective, rather than individual, good. In contrast to the West, where law is the guarantee of rights that all may claim, in Vietnam the law concerns duties that all must fulfill.

Vietnamese law seeks to give the prisoner the right to reformation. In theory, at least, there are very few incorrigibles. It also permits a relativist approach in fixing sentences, much more so than do the precedent-based systems of the West. Mitigating circumstances, such as whether the accused acted out of passion or premeditation, loom large as a factor in sentencing. Murder by stabbing is treated more leniently than murder by poison, for example, because the latter is perceived to require a greater degree of premeditation than the former. The personal circumstances of the accused are also a factor in determining punishment. In the administration of criminal justice in Vietnam, an effort is made to understand the criminal, his crime, and his reasons and the notion of permanent or extended incarceration is rejected in favor of an effort to determine whether or not and, if so, how the criminal can be rehabilitated and restored to society.

Political crimes are treated less liberally, however. In such cases, the administration of justice can be arbitrary and harsh. Politics clearly plays a role in the arrest, trial, and sentencing procedures. The rationale for this policy, which is openly acknowledged, is that the revolution must be protected and that the individual may be sacrificed, perhap 2000 ps even unjustly, for the common cause. The courts alsÍÍÍÍÍÍÍo take a more jaundiced view of the rehabilitation of political prisoners than of common criminals.

The court system was reorganized in 1981 into four basic levels: the Supreme People's Court the provincial municipal courts reporting to Hanoi the local courts, chiefly at the district precinct levels, reporting respectively to provincial or municipal governments and military courts. In addition, a number of specialized courts were created. In judicial procedure the courts still owed much to the French example, particularly with respect to the role of the procurator, who had much broader responsibilities than the prosecutor or district attorney under the Anglo-Saxon system.

On January 1, 1986, a new Penal Code officially went into effect after nearly five years of preparation. It contained 280 articles divided into 12 chapters or sections. Unlike earlier laws, the new code included detailed sections on juvenile and military offenders. The first eight chapters defined jurisdiction and judicial procedures distinguished among infractions, misdemeanors, and felonies and outlined sentencing procedures. The last section, consisting of four chapters, defined specific crimes and fixed penalties. The code identified seven categories of legal punishment: warning, fine, reform without detention, house arrest, imprisonment, life imprisonment, and death. There was no parole, but remission of punishment was possible and the conditions for it appeared to be lenient (eligibility for remission of a life-imprisonment sentence began after seven years). In general, definitions of crime were broad, vague, and could be interpreted so that virtually any antisocial word or deed was indictable. Penalties were stern and included capital punishment for a lengthy list of crimes. In 1986 Minister of Justice Phan Hien defended in writings and interviews the new code's long list of capital crimes, arguing that in general the code was liberal. He cited as evidence that polygamy was a crime, whereas adultery was not. Most serious crimes (all drawing the death penalty) were crimes endangering the national security, i.e., treason, "taking action to overthrow the people's government," espionage, rebellion, sabotage, terrorism, "undermining unity," spreading "antisocialist" propaganda, "disrupting security," obstructing or inciting to obstruct state agencies' activities, hijacking, destroying important national security projects and property, and "crimes against humanity."

Upon arrest, an individual was taken first to a Ministry of Interior records office where he was fingerprinted and interrogated, and where his record was checked. He was then remanded to a detention cell to be held until his trial. Posting bail to obtain temporary release was not practiced, although in some instances release on one's own recognizance was permitted.

Trials themselves were brief, businesslike, and conducted in an informal, somewhat nonjudicial atmosphere. All participants were expected to seek justice rather than simply to observe the letter of the law. The defense was supposed to proceed in an objective manner, meaning it was expected to pursue the truth and not to engage in courtroom tactics "that distort the truth or conceal the guilty person's faults." The defendant was expected to confine his efforts to presenting facts that proved his innocence or that supported his plea to the tribunal for reduction of the gravity of the charge. In most trials, defense strategy was not directed toward exoneration but toward a sentence of reform without detention.

Sentences for nonpolitical crimes, and particularly for less serious felonies, tended to fall into three categories: reform without detention, reform with detention, and detention (i.e., an ordinary prison sentence). Perhaps half of the sentences imposed for these crimes were of the first category, and the remaining half was divided more or less equally between the other two categories. The system rested on the assumption that most criminals could be rehabilitated, but the procedure required that the individual petition the court for rehabilitation. The court might also sentence a person to loss of civil rights, an auxiliary penalty that deprived the individual of certain rights for a specific period of time (see Social Control , this ch.). Formal incarceration that resulted from judicial proceedings might be either in a prison or a work-reform camp (detention with labor). Vietnamese prisons imposed confinement in a manner more or less like prisons anywhere in the world. Work reform camps incarcerated prisoners as well, but also required them to perform outside physical labor, constructing roads, clearing brush, and similar tasks on contract for the state. Beyond confinement arising from judicial proceedings, there was also administrative detention that did not involve the courts and was usually the result of action by party officials. Eligible for this type of incarceration was a host of offenders that included juvenile delinquents, foreigners (chiefly Laotians), northerners who had defected to the South during the war, and "enemies of the people" (those judged to be dangerous to society by virtue of their social, political, economic, or family background). The largest and best known facilities for administrative detention were the re-education camps and social- labor camps. Both were "educative" in purpose and both were designed for "social negatives." The difference between the two, insofar as there was any, was that the re-education camp was for those whose attitudes, ideas, and beliefs required correction, while the social-labor camps were for those of "backward behavior," such as draft dodgers, tax evaders, and persons who "spread social negativism."

In official Hanoi thinking, there was a sharp difference between confinement as a result of judicial proceedings and administrative detention. Those who were incarcerated in a prison or a work-reform camp as the result of a court sentence were considered incorrigible or without social value. Prisoners confined under administrative detention were those for whom there was some hope of rehabilitation. While the individual inmate caught up in the system might find the distinction meaningless, it was important for an observer of the Vietnamese judicial and internal security system to bear in mind the distinction between the two institutions.

Detailed information on Vietnam's prison system--the number and location of its prisons and the size of its prison population--has always been extraordinarily difficult to obtain, and much of the information available in 1987 was questionable. Hanoi had not published anything of consequence on the subject. Credible available data tended to combine statistics on prison, work-reform camps, and administrative detention facilities. Each of the forty Vietnamese provinces had at least one prison with a capacity ranging from about 1,000 to 5,000 inmates. Some provinces also had what were called model prisons, which resembled new economic zones in that, in the spirit of modern penology, they offered the prisoners financial incentives to engage in agricultural production. Most of the district capitals had small prisons or detention centers, and the PPSF (or PSS) operated detention cells in most villages and some hamlets. In addition, there were perhaps a dozen central (or national) prisons that could hold as many as 40,000 inmates. The largest of these were the Hoa Lo prison in Hanoi (with a branch in Haiphong) and the Chi Hoa prison outside Ho Chi Minh City. The major cities also had detention centers (Hanoi had 18, which could hold 500 prisoners each) where individuals were held awaiting trial.

Life in a Vietnamese prison, as reported by ex-prisoners, was harsh. There were work details for those in prisons, as well as in the work-reform camps, that chiefly involved agricultural production for prison use. Rehabilitation lectures were held daily, and prisoners spent much time describing past behavior an d thod thoughts in detail in their dossiers. Visitors were permitted only infrequently in most prisons. Discipline was strict, and prisons in particular were well guarded usually there was 1 guard for every 250 prisoners. In general, the use of torture, corporal punishment, and what might be termed police brutality were no longer legal but were still condoned by officials and even accepted by the general public.

Data as of December 1987