Notes on “Release on Guarantee”

China’s top law enforcement and justice sector bodies have released new rules for the use of “release on guarantee”, a pretrial release mechanism often equated with bail. Under the measure, those accused of crimes may avoid pretrial detention by finding a guarantor or posting a guarantee deposit. While U.S. bail is a qualified right, however, release on guarantee is viewed as one of a series of “compulsory measures” which vary in the extent to which they restrict physical liberty and may be applied to criminal suspects at the discretion of the police, prosecution, and courts.

Pretrial release rates in criminal rates are believed to have drastically increased over the last 20 years. At the turn of the century, the pretrial detention rate was thought to be about 91%, and it has now dropped to somewhere around a third of all cases during the Covid years where detention may have been discouraged for health reasons as well. The drop has been attributed to general policies discouraging over-reliance on detention, increased use of technological measures like electronic ankle bracelets to monitor those releases and ensure their return, and increased use of the ‘plea leniency system’ that encourages confessions early in the process and reduces pre-trial time generally.

It is not entirely clear how these “pre-trial detention” numbers should be interpreted in the Chinese system. Some have suggested that they might reflect a reduction in the use of formal arrest, a measure that allows extended detention with the approval of the prosecution, or an increase in the use of non-custodial compulsory measures following an initial period of detention. While this would still mean there has been a drastic change in pretrial conditions, it could mean that even those receiving pre-trial release had already been held for a significant period of detention during the police investigation.

Conditions for Release on Guarantee

Under article 67 the Criminal Procedure Law, release on guarantee may be applied in a number of situations. These include use for those who are likely to receive mild penalties including up to six months detention, those likely to receive harsher sentences but will not pose a threat to the public if released, those with special physical conditions (illness, pregnancy, inability to care for themselves, etc.) where release will not pose a threat to the public, or where police have already used their full period of detention but have not yet finished the investigation.

The new rules reduce discretion in the application of release on guarantee by saying that it SHALL be employed in eligible cases where the threat to society can be prevented, not just that it MAY be applied.

The rules also clarify that the standards for recognizing illnesses and disabilities that qualify for release on guarantee are equivalent to those for medical parole of prisoners serving a sentence.

Place of enforcement

                Release on guarantee is usually implemented at either the person’s place of household registry or their habitual residence. They are not restricted to their homes, but are required to seek approval before leaving the city or county where the release is being enforced. A habitual residence refers to a place where the person has lived continuously for a full year after leaving their place of household registration.

The new rules now allow that enforcement may also take place at the persons’ temporary residence. This is defined as a stable residence that has not been established as a habitual residence (<1yr residing there) where the person has left their place of household registration for at least a year.

The new rules also recognize the greater mobility in society by allowing that simplified approval procedures may be used for those who regularly travel outside their city or county for work, study, medical care, etc.

Interdepartmental Coordination

                Release on guarantee can be imposed by police, prosecutors, courts, or state security organs within the scope of their duties and jurisdictions, but is enforced by public security organs or state security organs. The new rules spend considerable time detailing the methods by which the specific police responsible for enforcement will be identified, and crafting clear procedures for sharing information and coordinating action between different departments.