Poverty and detention: Are legal frameworks adequate?

Pre-trial detention contributes significantly to prison overcrowding and causes a range of harms to individuals, their familes, and society. But what is driving its use? In this blog, Madhurima Dhanuka from the Commonwealth Human Rights Initiative presents the findings of a recent report and explores the disproportionate impact of pre-trial detention on poor and marginalised communities.

“Am I in prison because of a crime,
Or is it because I have no dime?
Where is the justice that I seek,
Is it for money that my future is so bleak!”

There are 25.3% more people in prison today than there were in 2000. This increase in the global prison population has led to severe overcrowding of prisons around the world with prison systems in at least 15 countries operating at more than 250% occupancy, and 120 countries with occupancy rates exceeding 100%. Thus, one wonders if imprisonment is the default choice for justice administrators and not a last resort?

Discriminatory laws, punitive drug policies, extreme sentences, underuse of alternatives, and the aftermath of the COVID-19 pandemic are some of the likely drivers of imprisonment. In many countries, poor and marginalised sections of the society are overrepresented in prisons as a result of laws that criminalise poverty, despite extensive community-led movements to decriminalise petty offences. Another major concern is the duration of trials and, in the meantime, lengthy detention of accused persons in prisons.

Many spend years in detention only to be found innocent

About a third of the 11.5 million people incarcerated across the world are pre-trial, i.e. their trials are not yet complete. This means that their guilt is yet to be proven – and under due process rights, they are presumed innocent until proven guilty. Many such people often spend more time inside prison than the actual sentence period that would apply if convicted. Many spend years in detention only to be found innocent. This can have a harmful impact on individual lives, families, communities as well as the rule of law as it disrupts the economic prospects of detained individuals, while also pushing their families into poverty, damaging the educational prospects of their children and other essentials necessary for leading a life of dignity.

States have an obligation to ensure justice, preserve public safety and hold offenders accountable while fully respecting human rights in the process. Yet, one must question whether indeed the criminal justice systems of the world respect the rights of those accused of offences (and of victims too)? The answer to this, unfortunately, is not a positive one. A recent enquiry by the Commonwealth Human Rights Initiative into the criminal laws of 54 countries of the Commonwealth highlights numerous gaps in existing criminal legal provisions which lead to rights violations for those detained pre-trial.

The report ‘Guilty till Proven Innocent?’ enumerates several gaps, including:

1. Inadequate provisions for timely and frequent review of arrests;
2. Non-existence of complementary laws to ensure constitutional guarantees of legal representation;
3. Lack of robust definition of illegal arrests and absence of remedies;
4. Non-existence of time limits on investigation, trial and detention;
5. Inadequate provisions for access to state-funded legal aid for those unable to afford lawyers;
6. Non-articulation of consequences in law where an accused remains unrepresented during trial;
7. Limited availability of alternatives to detention at the pre-trial stage; and
8. Limited use of provisions of bail at the pre-trial stage, where they exist.

The report highlights several good legislative provisions identified throughout the study – such as Australia’s Police Powers and Responsibilities Act, 2000 (Queensland), Cyprus’s Rights of Suspects, Arrested Person and Persons in Custody Law, 2005, Lesotho’s Speedy Court Trials Act 2002 etc. – which provide specific language that aims at safeguarding rights of persons coming in contact with the criminal justice system. However, there were few jurisdictions where the basic minimum safeguards that could effectively protect the rights of those accused of offences at all stages of the criminal proceedings, were available.

Unnecessary and prolonged detention can lead to irreparable harm

It would not be wrong to assume that in the absence of robust safeguards, those who are poor or belong to marginalised communities are disproportionately affected and their rights frequently neglected or violated. Unnecessary and prolonged detention can lead to irreparable harm to not just the person detained, but their family, their community and the society at large.

Prolonged periods of detention pre-trial do not benefit the victim either, delaying and weakening their sense of justice. It is also an unnecessary burden on the state exchequer, as the costs incurred are unjustified and arguably could have been better utilised if spent on the welfare of communities and in keeping people away from a world of crime.

Experts have often termed pre-trial detention as a waste of human potential, and yet there continues to be an increasing reliance on it world over. This is despite the recognition of the need to reduce the proportion of unsentenced detainees under the Sustainable Development Goals 2030 (Indicator 16.3.2), as a measure of progress towards the attainment of Goal 16 on promoting peaceful and inclusive societies.

One hopes that States will consider the ills of pre-trial detention and review their policy and legal frameworks to address the phenomenon of the use of pre-trial detention and overcrowding in their prisons as a priority. One also hopes that civil society too will come together with much more fervour and enthusiasm to work collaboratively on this issue and push governments for affirmative action.

Penal Reform International is a member of the Campaign to Decriminalise Poverty and Status, a coalition of organisations from across the world that advocate for the repeal of laws that target or disproportionately affect people who are poor or homeless, informal traders, migrants, the LGBTQ+ community, people who use drugs, and racial and ethnic minorities. These laws are used to arrest and imprison marginalised populations – often for lengthy periods of time while they wait for their trial and sentence. Find out more.