Unclear fates behind bars

CH. Pre-trial detainees can be at different stages of the legal process, as discussed in our report:
(1) the “pre-court” stage when investigations are in progress or a court hearing is awaited;
(2) the “court” stage when the process is ongoing to determine guilt and/or the sentence;
(3) the “convicted un-sentenced” stage (the person has been convicted but not yet sentenced);
(4) the “awaiting final sentence” stage, when a provisional sentence is given but is subject to appeal¹.

The purpose of pre-trial detention - in principle - is to ensure that the person doesn’t escape the justice process, interfere with witnesses or with evidence, or commit offences. Pre-trial detention is meant to be exceptional and used as a last resort, as other measures can usually achieve similar aims. However, our research shows that courts’ decisions to remand are often based on general assumptions rather than taking a case-specific approach based on actual risk. And in cases where it must be used, the duration of pre-trial detention is supposed to be limited to the minimum required to achieve the necessary purpose, although research shows that its average length varies greatly.

The average duration is 167 days in the United States of America. In Brazil, it ranges from state to state: the national average is 368 days, but it’s as long as 900 days in some states. In some countries, prisoners are often held longer pre-trial than the usual sentence for the crime they have been accused of.

The consequences of misusing pre-trial detention are serious. Even for short periods of detention, family ties, the right to privacy, access to money and to work can be disrupted, with lasting consequences. This can potentially have long-term and life-changing impacts for individuals. We know that conditions for pre-trial detainees are often worse than for sentenced prisoners: in much of the world, they live in unsanitary, violent and overcrowded prisons. They usually cannot access education, rehabilitation programmes or work. Their imprisonment also affects their right to a fair trial: it is harder to prepare one’s defence while in custody, to consult lawyers, and prepare for hearings. Pre-trial prisoners are more subject to pressure to confess or accept plea deals. Our study also shows that in some countries judges are more likely to impose a custodial sentence to a person who has been awaiting trial behind bars than someone who was bailed.

CH. The pre-trial prisoner population is growing worldwide. In the United States of America, there are almost half a million pre-trial prisoners. In India, over 300,000. In Brazil, over 250,000. There are also striking examples of countries with large proportions of pre-trial detainees among their prison population: in Libya, 90 % of the overall prison population is constituted of pre-trial detainees; in Bangladesh, it is over 80% and in Paraguay, over 70%.

Since 2000, the overall number of pre-trial detainees has increased by 30%. This is 5% more than the growth in the prison population total worldwide.

By region, there are even more striking signs of growth: in Asia, the rise has been of 72%, mostly driven by Cambodia, Indonesia and the Philippines. In the Americas, the total pre-trial population increased by 60%. Since 2000, numbers have more than doubled in Brazil, Paraguay, El Salvador and Venezuela. In Europe, on the other hand, we have seen a significant drop in pre-trial detention figures. This is mainly due to falls of detainee figures in Russia. The total dramatically increased in Oceania, more so than in any other continent, by an overall 200%.

These figures contrast with the notable fall in levels of crime in many countries, along with increasingly available alternative measures such as electronic monitoring which should reduce the need for judges to use pre-trial detention.

Instead of keeping people safer and reducing crime, pre-trial detention often has unintended opposite effects.

For some people, pre-trial detention can have a criminogenic effect, for several possible reasons: losing the benefit of protective factors that support desistance from crime (family relationships, work and home); greater risk of forming associations that could lead to future criminal activity; or being forced into debt due to drug use or because they need to borrow money from other inmates to pay for essentials like phone credit or medicine. These factors can raise the risk of future offending, making pre-trial detention largely counter-productive.

CH. If a prison is already struggling to cope with high numbers of prisoners, the overuse of pre-trial detention places additional pressure on staff, prison space and available resources. Overcrowding affects prison systems in around 60% of countries world-wide. This makes it harder to provide for the safety and care of sentenced prisoners. Rehabilitation in such a context is harder to achieve.

Addressing over-use of pre-trial detention has become all the more crucial, now that COVID-19 is a reality in prisons across the world. As we have seen in America, outside communities are in close interaction with prison populations. This means that when a contagious disease spreads, as is happening with the current pandemic, the contagion spreads very quickly and takes hold of the prison. High numbers of individuals from the outside community, including families of staff and inmates, are then affected. Both sentenced and pre-trial detainees face greater risks to safety when prisons are overcrowded. This also includes added risks to staff who work in prisons and their families. This has already been observed with many other infectious diseases: the diseases do not stop at prison walls, nor do the consequences.

The misuse of pre-trial detention has other impacts over and above worse detention conditions: It places extra burdens on family members. It weakens people’s trust in the fairness of criminal justice systems.

Lowering the rates of pre-trial detainees could be achieved by limiting the number of people arrested in the first place. It is possible to seek alternative approaches outside justice systems. For example, conflicts with the law are often driven by unmet mental health needs, poverty and addiction. Social, community and health-based interventions in these areas, in place of policing and punishment, can radically reduce the number of people entering the justice system. Finally, for cases where some form of monitoring is necessary to ensure a suspect or defendant attends hearings, measures instead of detention should be put in place. If money bail is used, it must be made affordable otherwise the vast majority of people coming into contact with the law won’t benefit. Other measures such as home detention, curfews or regular reporting at police stations should be used, wherever possible.