Rehumanising pretrial justice

It is no surprise that better defence lawyering, earlier in the process, can have a huge impact. After all, defence lawyers are the system-insiders that exist to advocate for the defendant. Research on defence representation in bail hearings in New York has shown a 20% to 30% reduction in pretrial detention where representation is provided. And if defendants have a lawyer even earlier it can disrupt the criminal legal machinery before it is got started. A study of First Defense (a community-led initiative in Chicago) has shown that its work to increase access to a lawyer in police custody significantly reduces jail time.

Positive lessons can also be learned from holistic defence. This client-centred, interdisciplinary approach enables lawyers to better understand their clients and their needs which, research has shown, increases the likelihood of pretrial release by nearly 9%.

Participatory defence can also enrich lawyers’ understanding of their clients as three-dimensional human beings by organising defendants’ families and communities to assist and challenge lawyers. But even without ground-breaking approaches like these, there is much that can be done to improve defence advocacy for pretrial release. Our own research has shown that defence lawyers often fail to turn up to detention hearings (usually poorly paid and seen as less “prestigious” than trials) and that their advocacy is frequently passive or non-existent when they do.

Zealous defence is perhaps the best way to challenge ubiquitous judicial and prosecutorial cultures that seem so pre-programmed to detain. Elected progressive prosecutors are championing pretrial justice reform in the United States, but this is hard to translate to legal systems that have career judges and prosecutors. In these systems, rigidly protected principles of judicial independence and impartiality can make it almost impossible to even discuss ingrained and deeply problematic cultures that can pre-determine how judges and prosecutors do their jobs.

In many countries, efficiency-driven court schedules are now moulded around indifference to the massive human cost of pretrial detention. A study of decision-making in England and Wales, for example, showed that courts were making detention decisions in less than five minutes in almost every case. ICPR’s report on pretrial detention found that in India “magistrates are so overwhelmed they cannot engage with the facts or the person before them and barely look up to see who the accused person is”; and that in South Africa “[the court] does not have the time to apply the law … they want to shuffle through cases as quickly as possible“.
We also need to examine how extraneous factors affect judges’ willingness to order a person’s release, like “tough on crime” press coverage or judges being expected to make numerous back-to-back decisions without a break. A study in Israel famously showed that judges are more likely to rule in favour of defendants who appear straight after a meal break.

Pretrial detention reform is often approached through the prism of legal (rather than cultural or system) change, often in the form of extrajudicial oversight or limiting justifications for detention. Although important, these reforms do not get to the crux of the issue.

Extra hearings can just become another process where judges rubber-stamp pre-determined detention decisions. Narrowly defined grounds for detention can translate into new template language to justify detention, when the unofficial reason remains the same – “they probably did it anyway” or “I am too scared to release people like this”. These mindsets cannot be dislodged by legal reforms when decision-makers are blind to the human costs of pretrial detention.

Regressive global trends in criminal justice are making it even harder to humanise pretrial detention decisions. In response to the inequity of money bail, for example, many jurisdictions in the United States introduced risk assessment tools, which are effectively mathematical recipes to group people into risk categories. Although designed to provide a more scientific basis for decision-making, they are now widely considered to deepen racial injustice because they rely on criminal justice data that reflects structural racism and institutional inequity.
I fear that, if we fail to share the lessons learned in the United States, algorithmic risk assessments will be marketed in other parts of the world as a technological “solution” to pretrial detention.

The COVID-19 pandemic has presented new challenges for pretrial justice. Despite the efforts of NGOs like Fair Trials¹, pretrial detainees have rarely benefited from prisoner release schemes to ease overcrowding and reduce risk of infection. Indeed, the numbers seem to be rising. In England & Wales, for example, almost a third of pretrial detainees at the end of 2020 had been held for longer than the legal time limit.

Pretrial detention hearings have increasingly happened via telephone and videolink, which threatens to become the norm given the hunger for technological solutions that offer increased efficiency.

How much harder is it to see the defendant as a real human being if they are on Zoom rather than present in the flesh? There is a reason these hearings derive from the ancient legal safeguard of “Habeas corpus” (literally, “have the body” [of the detainee brought before us]). Studies in United Kingdom² have shown that remote hearings can interfere with defendants’ right to access effective legal assistance and to participate effectively in their hearings; and that they can disproportionately result in custodial sentences.

Our legal systems need to approach pretrial detention through a human rights lens – front and centre must be the human beings whose futures and freedoms are being decided. As with so much in the field of criminal justice reform, the answers are not simple and, ultimately, they point to the need to right-size the justice system so that it has the time and resources to actually do justice. This should be the focus of legal reform efforts - remove detention as an option for offences punishable with a short prison sentence or, better still, keep people out of the system altogether (see the African campaign to decriminalise petty offences).
If we fail re-humanise pretrial justice, our legal systems will continue to demean, detain and discriminate against millions of people who don’t need to be in prison at all.