Why global action is needed on pre-trial detention

In many nations of the world, prisons are used in large part for what was their original purpose – not as a punishment or correctional measure but to hold suspects and defendants until they can be tried in court.

In more than fifty countries, the majority of people in prison on any one day are such pre trial detainees. Perhaps understandably the problem is gravest in post conflict and low income states where the justice system may function sporadically if at all. Here more than seven out of ten prisoners may be awaiting trial. Even in rich countries such as the Netherlands and Canada however, almost two in every five people locked up in prison are on remand. Excessive use of pre-trial detention is a global problem

Official figures are likely to underestimate the numbers involved since in many countries detainees are held in police detention, escaping the prison statistics but not the fact of detention. Remands of course represent a much greater proportion of those received into prison each year than they do of the prison population on any one day. So while international law stipulates that penitentiary systems should comprise “treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”, in practice much of the work of prisons continues to be in fulfilling a jailing function .

Unnecessary use of pre trial detention is problematic for three main reasons. First it breaches norms which require that detention should be a last resort and for the shortest possible time for those presumed innocent until proven guilty. Second it damages the  well being of the suspects, some of whom will eventually be acquitted and of their families who are almost always entirely without blame. Third, locking people up before trial is costly, contributes greatly to overcrowding and has a disproportionate impact on the day to day operations in prisons.

The demands of holding and processing detainees and of transporting them to court ties up resources and imposes opportunity costs on what prisons can do to rehabilitate and reintegrate convicts. Pre trial detainees are often held in conditions ranging from basic to life-threatening with no system of classifying any risks they pose or needs they experience. There is generally little or nothing to occupy them in the way of education, employment or recreation.  The dangers of acquiring infectious disease, of being tortured or being subject to corrupt practices by staff all seem to be greater among remand prisoners than among prisoners as a whole. There is growing evidence of the negative socio-economic impact of excessive pre trial detention.

In coping with the problem of remand prisoners, prison administrators may often feel that they are simply passive recipients of decisions made further up the criminal justice chain by police, prosecutors and courts. There is much that they can do however to assist the effective functioning of the process. They can for example host paralegal services run by civil society organisations which can help to expedite hearings or even invite magistrates to hold court sittings within the prisons to avoid the need for escorts to court. Important too is the task of collecting, and sharing with other criminal justice agencies, data about the length of remand periods, in particular numbers of detainees prisoners charged with minor offences, whose period on remand exceeds the maximum or likely sentence.

There are of course some fundamental reasons for the unnecessary use and length of pre- trial detention, including the inability of most defendants to obtain legal advice and assistance. Without it people have no help in applying for bail, preparing their case or speeding up the trial process. The longer the time spent in prison without trial, the more the chance of a fair trial fades. Evidence goes stale, witnesses move or disappear, and the pressure on people to plead guilty increases as people wish to put an end to the uncertainty over their future.

Recently adopted UN Principles and Guidelines say that anyone arrested, detained, suspected or charged with an offence that is punishable with imprisonment should be entitled to legal aid at all stages of the criminal justice process. This should prompt governments to address shortfalls in funding and capacity but considerable investment will be needed to meet the demanding standards required by the UN.

While legal and paralegal assistance is a key part of the answer there are others too. There may be scope for diverting certain kinds of cases out of the criminal justice system altogether so that they are dealt with through restorative processes. Where prosecutions are brought, affordable bail terms and community based alternatives to incarceration are needed in low risk cases. Systems are needed not only to assess the likelihood that a defendant will  fail to attend court , interfere with witnesses or commit further crimes but also to reduce those risks. Supervised places to stay and electronic monitoring may have a role to play.

Developing these alternatives is more likely if there are stricter legislative limitations on the use and length of pre trial detention. Innovative bail information schemes are being developed by the probation service in Kenya, whose constitution now prohibits courts from remanding to prison person charged with an offence whose maximum penalty is less than 6 months.

The Global Campaign on Pre Trial Justice has been established by the Open Society Justice Initiative to reduce the unnecessary use of pre trial detention by piloting innovative practices, creating a forum to exchange lessons about what works best and to build expertise and momentum for change.  An alliance of civil society organisations are working with the campaign to promote reform and investment by governments and donors around the world. The work is beginning to pay off. As well as pressing for the UN Principles and Guidelines on Legal Aid, the Campaign has helped persuade the African Commission on Human and Peoples’ Rights to adopt a resolution on the need to develop guidelines on conditions in police custody and pre-trial detention. The problem may be finally getting the attention it needs if prisons are to play their proper role as part of a rational and humane approach to criminal justice.

Rob Allen is co-Director of Justice and Prisons (www.justiceandprisons.org) and an Associate of PRI.

More about the Open Society Justice Initiative’s campaign for pre-trial justice.

The article is based on a paper given at the 14th ICPA Conference in Mexico City on November 1st 2012.