Presumed guilty: the quiet human-rights scandal of pre-trial detention

Around the world, millions are effectively punished before they are tried and many are subjected to violence and even torture—at great social cost and although alternatives are available.

Martin Schӧnteich
18 October 2014

Sorting the poor: the Tombs detention complex in Manhattan. Swire / Flickr. Some rights reserved.

The right to be presumed innocent until proven guilty is universal but a third of the world’s prisoners—some three million people—are behind bars, awaiting trial. No right is so broadly accepted in theory but so commonly violated in practice. The global overuse of pre-trial detention is one of the most overlooked human-rights crises of our time.

In some countries, pre-trial detention for months and even years is not unusual. Among the 47 Council of Europe countries, the average period is almost half a year. In Nigeria, according to official government data, it is in excess of three years. The current global cohort of detainees will collectively spend an estimated 640m days in pre-trial detention—a terrible waste of human potential which comes at considerable cost to states, taxpayers, families and communities.

Not all pre-trial detention is irrational or unlawful. Persons who present a genuine risk of flight or of endangering witnesses or the community should be detained before trial, in the absence of reasonable alternatives. Applied properly and sparingly, pre-trial detention plays an important role in a balanced criminal-justice system.

Many of the world’s pre-trial detainees should not be in detention, however. They are held on charges linked to minor, non-violent offences. As a result, many defendants spend more time behind bars awaiting trial than the maximum sentence they would receive if eventually convicted. In Chile, between 2005 and 2010, less than a quarter of pre-trial detain­ees ended up being convicted and receiving a custodial sentence. In England and Wales, where pre-trial detention is used relatively sparingly, half of all pre-trial detainees are ultimately acquitted or receive a non-custodial sentence.

The three Bs

The vast majority of the world’s pre-trial detainees are poor. The indigent are more likely to come into conflict with the law, more likely to be detained pending trial and less able to afford the three B’s crucial for pre-trial release: bail, barrister or bribe. The disproportionate detention of the poor and otherwise marginalised and the fact that many are charged with minor offences, culminating in non-custodial sentences, or are acquitted is indicative of the excessive and arbitrary use of pre-trial detention in many countries.

Moreover, some pre-trial detainees are convicted not because they are guilty but because of abuse they have experienced. Violence, torture and related physical and psychological abuses of prisoners are concentrated in the pre-trial stage—especially during the first few days of detention, with a view to extracting confessions.

To the extent that pre-trial detainees are confined separately from convicted prisoners—as mandated by international law and standards—conditions for the former are generally worse. Pre-trial detention centres tend to be particularly overcrowded and detainees typically have little or no access to educational, vocational or related work opportunities. Unsurprisingly, compared with sentenced prisoners, pre-trial detainees in most places are significantly more prone to self-harm and suicide.

In some jurisdictions, however, pre-trial detainees are not confined separately, living cheek-by-jowl with hardened convicted criminals. This heightens the risk of abuse, especially where juveniles are mixed with adults or women with men. And it perversely fosters criminal behaviour: pre-trial detainees, many of whom are innocent or should not be in detention, are vulnerable to being forced or socialised into prison-based criminal gangs or learning about the supposed gains from criminal conduct. Many are thus at heightened risk of engaging in crime and related antisocial behaviour upon their release.

Social consequences

This “criminogenic” effect of pre-trial detention is but one example of how excessive use can have far-reaching social consequences. There are more.

First, prisons act as vectors of communicable diseases and aggravate existing health problems, with effects on public health as released prisoners spread disease to the general population. For example, the average tuberculosis incidence in prisons worldwide is estimated at more than 20 times the ambient level.

As inadequate as health services may be for convicted prisoners, they are frequently even more lacking in remand facilities. There is often a reluctance to start treatment for infectious diseases that requires sustained therapy. Officials may be less concerned about continuity of care for pre-trial detainees whose custody is seen as temporary—however long its duration may be. And the greater overcrowding, torture and abuse exacerbate health risks.

Secondly, corruption flourishes in the pre-trial phase because it receives less scrutiny and is subject to more discretion, and often involves the lower-paid and most junior actors in the criminal-justice system. Unchecked by accountability, police, prosecutors and judges are able to arrest, detain, and release individuals based on their ability to pay bribes.

The indigent are more likely to come into conflict with the law, more likely to be detained pending trial and less able to afford the three B’s crucial for pre-trial release: bail, barrister or bribe.

The system’s credibility suffers when the innocent are detained because they cannot pay a bribe while the guilty go free because they can. And by corrupting the administration of justice and undermining the rule of law, irrational and excessive use of pre-trial detention weakens governance overall.

Thirdly, pre-trial detention critically undermines socio-economic development and is especially harmful to the poor. For individuals, its excessive use means lost income and reduced employment opportunities; for their families, it means hardship and poorer educational outcomes; and for the state, it means increased costs, reduced revenue and fewer resources for social-service programmes.

Detainees’ families must also wrestle with legal fees and other expenses. When an income-earner is detained, family members must adjust not only to the loss of that income but also to the costs of supporting the detainee, including travel for visits, food and personal items and often low-level bribes to guards. The impact is especially severe in poor countries, where the state does not provide reliable financial assistance to the indigent and where it is not unusual for one breadwinner to support an extended family network.

Interrelated causes

The many causes of this problem are often interrelated. Where pre-trial detention is excessive it is also frequently arbitrary: persons are detained capriciously and rarely convicted or convicted of relatively minor offences. Badly drafted laws can both impede effective collaboration between criminal-justice agencies and foster corruption. Corruption, in turn, often leads to arbitrary detention and siphons away scarce public resources which could provide legal assistance to the indigent.

A near-universal reason for excessive use of pre-trial detention is lack of coherence over how the presumption of innocence should be balanced against public protection. Too often more a principle than a reality even in more sophisticated jurisdictions, the presumption of innocence is often subject to little clarity conceptually or as to how it should be applied. This is aggravated in many places by imprecise and restrictive laws for which populist politicians are often responsible, while lack of political will may undermine policy initiatives which could restrict resort to detention.

International norms and standards and most modern bail statutes allow of many criteria for pre-trial detention, and this makes for complexity in bail decision-making. Yet judicial officers who make such decisions—usually under considerable time constraints in busy, often chaotic, courts—tend to be junior magistrates or judges with little courtroom experience.

Given these constraints, little consideration is given to alternatives to pre-trial detention and to a defendant’s personal circumstances, such as character, mental state and financial situation. In many jurisdictions, once a decision to detain is made there is no adequate review—even where such reviews are automatic, they are often routine bureaucratic processes.

Moreover, excessive or arbitrary use of pre-trial detention can often be for mundane reasons. For instance, lack of co-ordination between criminal-justice agencies or inadequate resources for criminal-justice systems can result, among other things, in police services lacking the human and technical means to investigate crimes forensically and expeditiously.

Possible reforms

Yet positive reforms are possible. In Finland and Singapore, proactive and coherent polices have brought about significant declines over the last decades in unnecessary use of pre-trial detention. In New Zealand and South Africa, diversionary and community-based conflict-resolution mechanisms have limited the number of defendants—juveniles in particular—ensnared by the formal criminal-justice system, where they are at risk of being remanded to pre-trial detention.

In Malawi and Sierra Leone—among the poorest countries in the world—paralegal interventions have demonstrated how pre-trial detainees can be released expeditiously, even in places with few lawyers. In Nigeria and the United Kingdom, duty solicitors are securing the release of defendants pre-trial at police stations.

In Australia and Mexico, pre-trial evaluation services—where the chances of defendants absconding and posing a risk to public safety are assessed—have reduced pre-trial detention. In Chile and Germany, new laws, effectively applied, have increased the use of alternatives. In Liberia and India, “camp courts” —prison-based courts which hear bail applications—are fast-tracking the release of defendants who have been remanded to detention by their countries’ overburdened regular courts.

Positive changes in law, policy and practice can make a difference. Governments need to focus adequate resources and efforts on the early stages of the criminal-justice process. Investments during the pre-trial stage—and even earlier, through support for diversion and community-based dispute-resolution—can generate savings over the long term by reducing prison overcrowding and concomitantly improving the rehabilitative prospects of imprisoned, convicted offenders.

Such resources should not only ensure that there are sufficient judges, prosecutors, police investigators, lawyers and courtrooms for pre-trial proceedings and trials to be finalised expeditiously. They should also provide for credible alternatives to pre-trial detention.

The recent Open Society report by the author on pre-trial detention, with an executive summary in several languages, can be downloaded, and an animation is available. 

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