In China, COVID-19 Had an Unlikely Side Effect: Bail Reform
One of the most longstanding features of China’s pretrial criminal process is the de facto rule that “detention is the principle and bail the exception.” A 2012 study based on publicly available judicial data found that, between 1990 and 2009, the national average pretrial detention rate was almost 95%, compared to the 10% to 40% typical in developed countries. In other words, the majority of China’s accused criminals were held in custody — usually in a dedicated institution or a facility for convicted criminals about to finish their sentence — for their entire pretrial process.
This disproportionately high rate of pretrial detention reflects the country’s harsh approach to criminal justice. In China, it is prosecutors, not the courts, who decide whether to arrest suspects and whether the suspects are then detained before trial. The country’s Criminal Procedure Law does set several restrictions on pretrial detentions, including specifying that detention only be used when non-custodial methods such as bail pending trial are insufficient to prevent a suspect from endangering society. But prosecutors have historically ignored these provisions, instead using arrests and pretrial detentions as tools for obtaining confessions.
Legal scholars have criticized these practices since at least the 1990s. Opponents have argued that pretrial detention rates of more than 90% violate the principle of presumption of innocence, and that procedures such as bail should be applied to protect the personal liberty of suspects who have not been convicted of a crime — provided there is no indication that they are dangerous or potential flight risks. Meanwhile, the public has also grown increasingly skeptical about the detention process after repeated incidents in which suspects suffered injury or even death in detention centers.
In response to growing calls for reform, China amended its Criminal Procedure Law in 2012. The revisions expanded eligibility for bail pending trial and added a review system for determining the necessity of detention, among other measures. To understand how these steps have influenced the criminal detention process, I calculated the pretrial detention rate based on annual data released by the Supreme People’s Procuratorate (SPP) — the nation’s highest prosecutorial body. My findings were encouraging: Between 2012 and 2019, China’s pretrial detention rate fell steadily, eventually reaching 66% in 2019.
This gradual trend was dwarfed by a sudden downward spike in 2020. According to data from this year’s SPP annual report — the first to include full official pretrial detention figures — China’s pretrial detention rate fell to approximately 53% last year. While it is difficult to directly compare my earlier unofficial estimates with the new SPP data, the new number suggests a one-year decline almost as large as the accumulated progress I had measured over the previous six years combined. Suddenly, China’s pretrial detention rate is hovering near 50%, meaning that, for the first time, the goal of making bail the principle and detention the exception is within reach.
While increasing concern over basic rights infringements has undoubtedly contributed to the decline in detention rates, such a significant drop in such a short period of time cannot be readily explained by this factor alone. Instead, the main reason for the dramatic decline in pretrial detention has been the COVID-19 pandemic.
After an outbreak of COVID-19 was first identified in the central city of Wuhan in early 2020, China instituted strict controls on cross-regional transit as well as lockdowns and social distancing mandates. In the early months of the outbreak, however, prisons repeatedly proved a weak point in the country’s otherwise impressive prevention and control efforts: On Feb. 20, 2020, the eastern Zhejiang province reported 28 confirmed cases of COVID-19, 27 of which came from a single prison; on the same day, the northern Shandong province reported 202 new cases, 200 of originated from the same prison. These two outbreaks were seen as major lapses and directly led to the firing of the responsible prison wardens and public officials.
The sackings were a wake-up call for the national criminal justice system. Detention centers, like prisons, were recognized as posing an increased risk for COVID-19 outbreaks. These centers are densely populated, with small cells of a dozen square meters often occupied by as many as a dozen suspects. Social isolation under such conditions is impossible, to say nothing of the centers’ severe lack of ventilation and disinfection equipment. Once one person was infected with the coronavirus, it would quickly spread throughout the cell and potentially to all corners of the facility, causing mass outbreaks. And because the length of custody in a detention center is usually just a few months, the rate of turnover is higher than in prisons, increasing the danger of infection.
To head off the risk of outbreaks — and protect their own jobs — Chinese case officers opted to reduce the number of detainees in detention centers by letting more suspects out on pretrial bail. The bail application process changed from lawyer-initiated to public security organ-initiated, meaning that defendants’ lawyers were no longer required to fill out paperwork to apply for pretrial release; instead, public security case officers took the initiative to process bail for suspects. In addition to boosting bail as an alternative to detention, the pandemic and related fears of an economic slowdown have also led prosecutors to accept more lenient deals in exchange for guilty pleas in cases involving economic crimes, as well as convincing some to hold off on authorizing arrests until they were fully prepared to prosecute.
Although there is a chance that the fall in pretrial detentions will be reversed after the pandemic, there are also some positive signs that China is trying to make its current, lower pretrial detention rates the new norm. For example, in April, the governing Communist Party included “fewer arrests and prudent prosecution” and the promotion of non-custodial measures on its influential list of “rule of law” priorities for the year. And in October, the Supreme People’s Procuratorate held a seminar on how to reduce arrests and prosecute more carefully, in which it reiterated the need to “change the long-standing judicial inertia of detention and prosecution.”
National policymakers can look to the local level for inspiration. Between 2010 and 2017, the eastern city of Suzhou reduced its pretrial detention rate from 73% to 38%. While explaining the motivation for this shift, an official with the local prosecutor’s office declared that, for minor offenders, detention centers could become petri dishes for crime and anti-social hostility.
But even Suzhou’s pretrial detention rate is still higher than the average of many developed countries. If China is ever going to reach the point where “bail is the principle and detention the exception,” it will take more than just recognizing the potential risks of pretrial detention; authorities need to recognize and embrace the presumption of innocence until proven guilty for all suspects.
Translator: Matt Turner; editors: Cai Yineng and Kilian O’Donnell.
(Header image: Prison guards patrol a detention center in Shenyang, Liaoning province, April 2021. People Visual)