Monday, October 10, 2011

Increased Use of Bail a Double-Edged Sword

China’s detention centers are bursting at the seams. Overuse of pre-trial detention is a big part of the problem, and researchers have been seeking new ways to reduce unnecessary confinement. Now, following on the heels of a major study conducted by the Supreme People’s Procuratorate (SPP), a proposed amendment to the Criminal Procedure Law (CPL) raises the use of bail* as a means to reduce excessive detention—but the cost may be stronger public surveillance.

Status Quo

Originally built to hold 160 detainees, the Fei County Detention Center in Shandong Province held 348 criminal suspects and defendants in April 2011. Such overcrowding, however, is neither an isolated occurrence nor necessarily symptomatic of high rates of serious crime. In this largely rural county of just under one million, more than 65 percent of detainees are likely to be given suspended or otherwise non-custodial sentences (indicating relatively minor offenses), while in many places, around 60 percent of criminal-court verdicts result in light sentences of three years’ imprisonment or less, including non-custodial punishments.

Despite this, SPP data for the last 10 years indicate that, on average, arrest is approved for more than 85 percent of criminal suspects, and the vast majority remain behind bars through trial.

Police reading conditions of bail to a detainee in Guiyang. Photo credit:

There are complex reasons behind China’s tendency to detain suspects for the entire pre-trial period. First, as Hunan National People’s Congress (NPC) Deputy Qin Xiyan has noted, China’s criminal investigators tend to use incarceration as a substitute for investigation, a practice that both derives from and reinforces the emphasis given to obtaining confessions. Such reliance on incarceration and confession not only promotes torture, but hinders the development of better investigatory methods and limits the development of a more professionalized investigatory force.

Second, police performance is partially measured by the rate at which arrests are approved, meaning, as explained by Dan Wei, a researcher at the SPP’s Institute for Procuratorial Theory, that there is a tendency to seek arrest solely on the basis of whether there is evidence of a crime and ignore other legally mandated criteria like the prospect of a fixed-term sentence and the necessity of arrest. Even though the CPL gives suspects, their family members, and their legal representatives the right to request pre-trial release on bail or into residential surveillance, these requests are handled by the same institutions that make the initial decisions to arrest, without independent review, and are not subject to appeal. (Rough, anecdotal data suggest that about 15-20 percent of suspects were released on bail in 2010 and that the figure will increase by only a few percentage points in 2011.)

Finally, sensational and politicized notions of crime-fighting and stability put pressure on authorities to keep criminal suspects in custody, even when alleged offenses are relatively minor. Thus the fear of a public outcry or the possibility of escape or additional offense, no matter how unlikely, promote the overuse of pre-trial detention and ultimately drain scarce resources that could be used to improve social services or, often cited for poor sanitation and torture, detention centers.

Pilots, Prospects …

Given current abuse of pre-trial detention, there is reason to be cautiously optimistic about a new provision that has been added to the draft CPL revision announced by the NPC in late August. The provision would explicitly empower the procuratorate to review the necessity of continued detention of individuals who have been formally arrested and to recommend release via other measures when the criteria for further incarceration are no longer met.

This provision stems from a three-year study conducted by the Supreme People’s Procuratorate that explored ways of reducing high rates of pre-trial detention. Led by SPP researcher Dan Wei, the investigation involved visits to more than 200 detention centers, interviews with more than 5,000 criminal suspects, and a pilot study involving detention centers in 20 locales nationwide. In a March interview with Legal Daily, Dan noted that procuratorates already have the authority to monitor detention centers but that this authority has rarely been accompanied by specific mechanisms that enable implementation sufficient to safeguard detainee rights. He thus developed an 11-point scheme as part of the study to help procuratorate officers normally resident in detention centers evaluate the necessity of continuing to hold arrested suspects.

The pilot project appears to have yielded some positive results. In the abovementioned Fei County, 183 detainees were evaluated between October 2009 and April 2011.The procuratorate found that 46 of these individuals met the requirements for release, and, of these, the public security organ released 37. During the same period, 433 detainees were evaluated in 10 detention centers in the city of Yichang, Hubei Province. All of the 35 individuals found to be unnecessarily detained were released, with no negative impact on the legal process reported in any of the cases.

… and Politics

These results are promising, if somewhat limited. Given that these measures do nothing to lower high rates of arrest, reducing reliance on pre-trial detention means expanding use of non-custodial measures, including bail and “residential surveillance,” that may have negative consequences, especially in political cases.

Bail has generally been granted infrequently for political prisoners, though there has been an increase in its use over the past year. A case in point is the release on bail of Ai Weiwei in June, following 81 days of secret detention in a case ostensibly about tax evasion. Several others detained this year for alleged offenses connected with the so-called Jasmine Revolution were also later released on bailmany on the condition that they not speak publicly about their detentions.

Left: Beijing legal lecturer and activist Xu Zhiyong was arrested for "tax evasion" on July 29, 2009. He received bail on August 23, 2009. Nearly one year later, on August 21, 2010, the charge against him was dropped. Photo credit: Beijing lawyer Peng Jian

Right: Artist and activist Ai Weiwei was arrested for "tax evasion" on April 3, 2011. On June 22, 2011, it was announced that Ai had been released on bail. The investigation is still pending. Photo credit: Reuters

Professor Jerome Cohen of the US-Asia Law Institute at New York University has noted the way in which release on bail has frequently been used as a “face-saving” measure whereby detainees in sensitive cases may be released without authorities having to acknowledge wrongdoing or lack of evidence. In many of these recent cases, bail also appears to be a way of using legal means to wrap up detentions that were intended as punishment or intimidation, rather than as part of an investigation intended for further prosecution.

Similarly, rights activists, lawyers, and the media have raised serious concerns about provisions in the draft CPL revision for another non-custodial measure—residential surveillance. As with bail, expansion of the use of residential surveillance could significantly help to decrease the rate of pre-trial detention in China. But the proposal would also authorize placing an individual suspected of endangering state security (ESS), terrorist activity, or serious cases of bribery under “residence surveillance” in a designated location other than the suspect’s residence without requiring that a family member be notified, if it were felt that notification had the potential to impede investigation. If enacted, this would effectively legitimize the kind of long-term, enforced disappearance that has been increasingly used against dissidents and activists—most notably Nobel laureate Liu Xiaobo—who are often charged with ESS crimes like inciting subversion.

In other words, expanding the use of non-custodial measures is potentially double-edged. Procuratorial oversight is welcome as a means to reduce excessive rates of detention and better protect suspects’ legal rights. But suspects’ rights must also be protected outside of detention centers. Further guarantees are necessary to ensure that the expansion of bail and residential surveillance does not facilitate the intimidation and punishment of critical voices through legal formalities lacking proper legal process.

Note: *When discussing the Chinese system, “bail” refers to 取保候审 (qubao houshen), which we translate as “obtaining a guarantee pending further investigation or trial.” The Criminal Procedure Law allows for the imposition of this procedure at any stage of a criminal investigation or prosecution. Professor Jerome Cohen of the US-Asia Law Institute explains that, pursuant to qubao houshen, investigations can go on for up to one year, during which suspects are generally restricted to their city of residence.