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The Evolution of Pretrial Detention Law: a Comparative Study Compiled and Translated by Ira Belkin, Chi Yin, Allen Clayton- Greene, N. Elias Blood-Patterson 1 Acknowledgments This book is the product of a multi-year project undertaken by the U.S.-Asia Law Institute at New York University School of Law to work with Chinese and international experts on criminal justice reform in China. This volume focuses on the topic of pretrial detention and release. During 2013 and 2014, we convened a series of workshops in several locations in China and invited experts from the United States and Taiwan to share their experiences with Chinese counterparts. The discussions stimulated by the workshops were valuable and important and we thought that it would be useful to share the information we learned with a broader audience. To that end, we gathered the materials in this book, translated the Chinese articles into English and the English materials into Chinese so that scholars and practitioners literate in either language could access the materials. We could not have convened the workshops and completed this book without help from scores of partners who shared their time and their expertise with us. Space does not permit us to name all those who participated in our workshops and contributed their ideas to this project. However, we would be remiss if we did not express special thanks to the following experts who participated in our workshops and contributed to this book: Hon. Joan M. Azrack, United States District Court, Eastern District of New York; Hon. John Gleeson, United District Court (Ret.), Eastern District of New York; Hon. Steven M. Gold, United States Magistrate Judge, Eastern District of New York; Peter Kiers, Director for Operations of New York City Criminal Justice Agency (ret.); Lan Xiangdong, Chief Procurator of the Eastern District of Beijing, China; Dan Wei, Senior Researcher of the Research Institute of Prosecutorial Theories of The Supreme People’s Procuratorate of People’s Republic of China; Barry Weiner, Chief Federal Probation Officer, United States District Court, District of Rhode Island (ret.); Professor Song Yinghui, Vice Dean of the Criminal Law Science Research Institute of Beijing Normal University,Professor Bi Cheng, Dean,Police College of Northwest University of Political Science and Law; Professor Bi Xiqian, Vice Dean,Investigation College of People’s Public Security University of China; Professor Bian Jianlin, DirectorProcedural Law Institute of China University of Political Science and Law; Professor Chen Guangzhong, dean emeritus China University of Political Science and Law; Professor Chen Weidong, Renmin University of China; Professor Fan Chongyi, director emeritus of the of the Procedural Law Institute of China University of Political Science and Law; Professor Feng Xue, Police College of Northwest University of Political Science and Law; Professor Gao Mingxuan,dean emeritus,Criminal Law Science Research Institute of Beijing Normal University; Professor Gu Yongzhong, Vice Dean,Procedural Law Institute of China University of Political Science and Law; Professor Jia Yu, President,Northwest University of Political Science and Law; Professor Li Ming, Vice Dean, Guangzhou University School of Law; Professor Liu Fangquan, Fujian Normal University Law School; Professor Wang Xiumei, Criminal Law Science Research 2 Institute of Beijing Normal University; Ms. Katherine Wilhelm, the Ford Foundation,; Professor Wu Hongyao, Procedural Law Institute of China University of Political Science and Law; Mr. Xie Pengcheng, Vice Director and Researcher of the Research Institute of Prosecutorial Theory of The Supreme People’s Procuratorate of People’s Republic of China; Professor Zhao Bingzhi, Dean of the Criminal Law Science Research Institute of Beijing Normal University; Professor Zuo Weimin, professor of Sichuan University Law School; Professor Yang Yujuan, Public Security University. We would not have been able to do successfully complete this project this without the leadership, support and active participation of Professor Jerome Cohen, the founder and faculty director at USALI. The research scholars at the USALI have done tremendous work in putting the program together and we are grateful for their contributions: Dr. Chen Yu-Jie, Ms. Heather Han, Dr. Li Ling, Ms. Liu Chao, Ms. Yin Chi, Ms. Gao Yuan, Mr. Allen Clayton-Greene worked tirelessly to provide an excellent and accurate translation of all of the articles in this book. We also wish to thank out support staff, including our program managers, Trinh Eng and Eli Blood-Patterson, our program assistants Melissa Lefkowitz and Alexis Sanborn, and our interns, Lin Shuying, Zhang Yifan, Esther Choi, Luo Lan, and Zhao Jing. 3 Preface Jerome A. Cohen Like its already-published companion volume on police interrogation of criminal suspects, this innovative two-language analysis of the different ways the People’s Republic of China (PRC), Taiwan and the United States have sought to cope with the dilemmas of pre-trial criminal detention focuses on some of the most fundamental problems of individual freedom. How to protect detained persons against the arbitrary exercise of government power without unduly limiting the capacity of the state to protect society against antisocial behavior is a universal challenge. In every political system the power to detain is the power to destroy human life. Of course, the criminal process is not the only way that states exercise their detention powers. As a substitute for or evasion of criminal procedures, states often resort to administrative detention to enforce the law in fields as diverse as mental illness, immigration, drug addiction and minor misconduct. Certain civil proceedings can also result in coercive confinement. As infamous Chinese, Taiwanese and American experiences have illustrated, even in the modern era, insecure governments sometimes extend military detentions to those who are ordinarily not within military jurisdiction. Yet the formal criminal process is understandably the cynosure of attention amid every country’s concern for civil liberty. This volume demonstrates the critical importance of pre-trial detention in that process. It explains not only the many difficulties that pre-trial detention policies and practices have encountered in striking the right balance between individual rights and the broader interests of society and government, but also the progress that has been made in the pre-trial detention arrangements of the jurisdictions that are the main subject of discussion. I confess to a personal interest in the national stories presented here. As a prosecutor in Washington, D.C. early in my career, it was my task to interview police and the suspects they brought in every morning in order to decide whether to recommend arrest and, if so, whether to suggest bail or detention. Later, as a teacher of comparative criminal law and procedure, I followed with great interest how the development of democracy in Taiwan resulted in shifting from the prosecution to the courts the power to approve criminal detention. I still recall, though it was years ago, attending a judicial hearing in Taiwan in which a prosecutor, a defense lawyer and a detained suspect all debated before the judge the wisdom of continuing the suspect’s detention during the remainder of his trial. And, of course, as a scholar specializing in the PRC’s criminal justice system, I shared my colleague Ira Belkin’s excitement when we learned that the 2012 amendments to the PRC’s Criminal Procedure Law (“CPL”) would introduce a provision authorizing prosecutors to review the necessity of continuing the detention of newly-arrested suspects. To be sure, as made clear by Professor Belkin’s splendid introduction, Professor Dan Wei’s interesting preface and the thoughtful contributions to this volume of the other respected Chinese experts, much still remains to be done in both legislation and practice to bring China’s pre-trial detention procedures up to international standards. Presumably this is one of the factors that has 4 delayed PRC ratification of the International Covenant on Civil and Political Rights, which it signed almost two decades ago. The many decisions concerning China of the United Nations Working Group on Arbitrary Detention (“WGAD”) also provide an ample basis for relevant law reform. My particular hope is that China’s National People’s Congress (NPC), in its next amendments to the CPL, will enable criminal suspects to challenge pre-trial detentions in court, especially those that rest upon erroneous interpretations of national legislation. Perhaps the most blatant distortion of legislative intent is the long-standing police practice of giving themselves the power to detain all suspects for up to thirty days before requesting procuracy approval of a formal arrest warrant. I am confident that this book’s groundbreaking research, comprehensive commentary and imaginative proposals will stimulate further law enforcement progress in China, Taiwan and the United States. NYU Law School’s US-Asia Law Institute is pleased to sponsor its publication. November 3, 2017 5 Contributing Authors I. CHINESE AUTHORS BIAN Jianlin BIAN Jianlin is the Dean of the Procedural Law Research Institute of China University of Political Science and Law (CUPL), and the supervisor for doctoral students of procedural law at CUPL. He holds a J.S.D. in procedural law obtained from CUPL. In previous years, he has also headed the Institute of Government by Law and was the Vice Dean of Graduate Affairs for CUPL. His published books include The Criminal Justice System: Theory and Practice (刑事起诉制度的理 论与实践) and Modern Criminal Prosecution (刑事诉讼的现代化), among others. CHEN Yu-Jie CHEN Yu-Jie is a Taiwanese lawyer and a current visiting scholar at Columbia University’s Weatherhead East Asian Institute. She received her J.S.D. and LL.M. degrees from New York University School of Law. She also holds an LL.M. and LL.B. from National Chengchi University in Taiwan. Yu-Jie has had extensive experience as a research scholar for the U.S.-Asia Law Institute of NYU School of Law, where she focused on criminal justice and human rights developments in Taiwan and China.

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