How COVID-19 has exacerbated problems created by excessive use of pre-trial detention

In this expert blog, the President of the Inter-American Commission for Human Rights, Joel Hernández, writes about alternatives to pre-trial detention in the Americas where the number of people held in remand are excessively high. Commissioner Hernández calls for the use of alternatives as an urgent measure to protect human rights – during the COVID-19 crisis and longer-term.

This is the first expert blog in a new series where leaders, practitioners and academics will share their expertise to delve into trends and analysis from Global Prison Trends 2020.

COVID-19 has come to expose one of the great delays in the procurement of criminal ​​justice: prison overcrowding.

For years, international human rights organizations have been recommending measures to reduce prison overcrowding. Civil society has repeatedly pointed out the state of prisons around the world. The pandemic found prisons with inadequate spaces, insufficient medical services facilities, lack of reintegration services, and above all, a notable overcrowding in general.

With the arrival of the COVID-19 pandemic, the situation in prisons has been extrapolated. The overcrowding and unhealthy conditions of prisons have made them a focus of high risk of contagion.

To contain the pandemic in prisons, the first measure is decongestion. In those cases where it is not possible, the adoption of sanitary measures is required to preserve the health of persons deprived of liberty but also of prison staff.

A number of countries have begun to adopt legislative or administrative measures to decongest prisons. It is a step to be commended. However, the pandemic should be an opportunity to review the use of the prison as an instrument of citizen security policies.

An additional problem that occurs in Latin America is the high number of people in pretrial detention. It is calculated that 60% of the people deprived of liberty in the region are in this legal situation.

If the pre-trial prison does not comply with international standards, in justified cases and as a measure of last resort, it becomes effectively an ‘early sanction’.

Why alternatives to pre-trial detention are not used?

In its Report on the Use of Pretrial Detention in the Americas of 2013, the Inter-American Commission on Human Rights (IACHR) urged States to apply alternative measures rationally, mindful of their purpose and efficacy and the characteristics of each case, and observing the principles of legality, necessity, proportionality and reasonableness.

Considering the fundamental standards regarding the use of pre-trial detention, alternatives to it should only be applied so long as the danger of flight or of thwarting the investigation cannot be reasonably avoided. The judicial authority should opt to apply the least cumbersome measure, always considering a gender perspective or, as the case may be, the paramount interest of the child or the impairment that could be caused to other persons belonging to groups at special risk. The judicial authority has the obligation to determine such measures without delay.

There is no empirical evidence that shows that policies based on greater restrictions on the right to personal liberty have a real impact on reducing crime and violence, or resolve more broadly the problems of citizen security.

The implementation of criminal justice policies and legal reforms that call for more incarceration as the solution to citizen insecurity problems is one of the main factors contributing to the non-exceptional use of pretrial detention. There is no empirical evidence that shows that policies based on greater restrictions on the right to personal liberty have a real impact on reducing crime and violence, or resolve more broadly the problems of citizen security.

In general, the Commission observes that in recent years challenges have arisen to implementing electronic surveillance mechanisms (also known as electronic monitoring), such as

• limited application of electronic surveillance;
• delays in implementing the measure; and
• obstacles to accessing this measure by persons living in poverty or with low incomes.

The IACHR has also received information that indicates that such mechanisms may stigmatize the beneficiaries because of the notable visibility of such devices; accordingly, it calls on the States to guarantee the necessary technological development with respect to their use so that they not stigmatize the beneficiaries.

Alternative sanctions to pre-trial detention and why the use of these should increase, particularly as a result of COVID-19

In particular, the use of measures other than pre-trial detention was one of the main recommendations made by the IACHR in its 2013 report on pre-trial detention – to reduce the use of pre-trial detention – and consequently to address overcrowding.

In this regard, and to ensure the appearance of the accused and avoid any thwarting of the investigation, the IACHR recommended that the States consider applying the following alternative measures

1. the promise of the accused to submit to the procedure and not obstruct the investigation;
2. the obligation to submit to the care or surveillance of a given person or institution, in the conditions that are set for that purpose;
3. the obligation to appear periodically before the judge or the authority he or she may designate;
4. the prohibition on leaving a given geographic area without prior authorization;
5. withholding travel documents;
6. immediate abandonment of the domicile, in the case of domestic violence where the victim and the accused live together;
7. posting, by oneself or by a third person, of a bond in a sufficient amount;
8. surveillance of the accused by some electronic device for tracking or determining his or her physical location; and
9. house arrest, in one’s own home or in the home of another person, without surveillance or with such surveillance as ordered by the judge.

COVID-19 has exacerbated problems created by excessive use of pre-trial detention

If there are a large number of people in pre-trial prisons in overcrowded prisons, now is the time to act to adjust detention to cases that comply with the principles of legality, necessity, proportionality and reasonableness.

With the pandemic present in a large part of the world, it is high time to reflect on the use of pre-trial detention.

If there are a large number of people in pre-trial prisons in overcrowded prisons, now is the time to act to adjust detention to cases that comply with the principles of legality, necessity, proportionality and reasonableness. Firstly, to start by de-congesting prisons in order to avoid outbreaks of coronavirus. More importantly, to start a new stage of sound criminal justice policy that uses prison only as rational.

Photo credit: Prison in Honduras, credit to _CIDH on Instagram