Barry J. Weiner. USALI's Work to Push Bail Reform in China. JNET

May 26, 2014

Recently I hosted a group of high-level Chinese officials whom I helped train several months ago while in Chengdu and Xian, China. These officials wanted to better understand the way we make pretrial bail and detention decisions and how the courts and prosecutors’ offices are structured, including how staff make budget and personnel decisions and how individual judges, prosecutors, and police are held accountable for their actions.

Sponsored by NYU Law School’s U.S. Asia Law Institute, this visit followed workshops that I conducted in China along with U.S. District Judge John Gleeson (New York Eastern), U.S. Magistrate Judge Steven Gold (New York Eastern), and Peter Kiers (NYC Criminal Justice Agency). This endeavor focused on—

Practices regarding bail and pretrial detention review.
The history of bail reform in the United States.
Decision making for determining bail in the United States.
Risk assessment and the use of evidence-based practices by pretrial services officers in the United States.

The group visited the federal and state courts, a federal detention center, local police departments, and other agencies. They also met with pretrial services officers, judges, prosecutors, defense lawyers, and others involved in the United States criminal justice system. After my retirement from our system on May 30, I will travel to China to participate in additional workshops in Beijing, Chongqing, and Guangzhou.

Historically, in the Chinese criminal process, a single government authority dominates each stage of a case. Police carry out investigations without any oversight, prosecutors control the charging phase, and the courts supervise the trial phase. All government authorities are subject to oversight by the Chinese Communist Party. Because the courts are not involved until the trial begins, they have no role in overseeing detention or other investigative measures.

Police may lawfully detain individuals for up to 37 days before formally deciding to make an “arrest.” During this time, suspects do not have the right to have an attorney present during interrogation, the right to remain silent, or the presumption of innocence.

Several well-known wrongful convictions highlight China’s current problematic system, which incorporates extraordinary police power during initial investigations. In two cases of renown, men were wrongly convicted of murder and sentenced to death. In one case, the alleged victim (the man’s wife) returned very much alive, and in the other, another individual ultimately came forward as the killer.

As recent revisions to criminal procedural law provide for alternatives to pretrial detention, procedures have to be established for such applications to be heard. However, limited judicial independence in China’s courts complicates matters. While Communist Party officials do not generally interfere in the management of typical criminal cases, there are mechanisms in place for the party to influence outcomes when it chooses to do so. Further, adjudication committees and chief judges have the authority to direct specific outcomes in a case, even without hearing the evidence.

Increasingly, Chinese officials agree that it is unnecessary and unduly expensive to incarcerate virtually all criminal suspects. The workshops scheduled for June will provide our Chinese partners with a better and more comprehensive understanding of how the bail system operates in the United States and offers a model upon which they can draw as they advance their own practices.

Barry Weiner, Chief Probation and Pretrial Services Officer, is a frequent participant in USALI’s Criminal Procedure Law workshops in China. The article was oringally published on JNET on Monday, May 26, 2014.