Pre-trial detention and its overuse

Catherine Heard, director of the World Prison Research Programme, at the Institute for Crime & Justice Policy Research at Birkbeck discusses pre-trial imprisonment.

Justice for Kalief Browder rally, New York, 2015. Credit: Felton Davis

Today, around 3 million people are in pre-trial (or ‘remand’) detention, awaiting trial or final sentence: roughly a third of the world’s prisoners. Some will see their cases dropped before trial. Some will be acquitted and released. Others, although convicted, won’t receive a custodial sentence. Whatever the outcome, the experience could have life-changing consequences, such as loss of employment, family and community ties; homelessness; and deterioration in physical or mental health.

Many pre-trial prisoners are held for months or years, their cases languishing in congested court lists. Kalief Browder spent three years in Rikers Island jail in New York, but was never tried or sentenced. Aged 17 when his detention began, he endured appalling abuse and spent hundreds of days in solitary confinement.  Accused of stealing a backpack, he insisted on his innocence, resisting pressure to plead guilty in exchange for his release. At the many court hearings during his detention, the judge rubber-stamped repeated prosecution requests for more time. Eventually, the case was dropped due to lack of evidence. Kalief was released but tragically, two years later, he committed suicide.

Kalief’s case shows the casual disregard that criminal justice systems so often have for the lives, rights and freedoms of those caught up in their machinery. It’s not just an American problem. All over the world, people unable to pay bail or afford a good lawyer are being consigned to months or years in pre-trial detention, while those with money or social status find it easier to avoid prison.

Why it matters: The misuse of pre-trial imprisonment is a major, but preventable cause of prison overcrowding; and a severe infringement of fundamental rights. It causes economic and social harm, puts pressure on prison conditions and increases the risk of crime. Pre-trial detention statistics held on ICPR’s World Prison Brief database show that, since 2000, pre-trial prison populations have grown substantially across much of the world. This is despite increased availability of cheaper, less restrictive measures like electronic monitoring.

Research in ten countries: Our new report, Pre-trial detention: evidence of its use and over-use in ten countries, looks at pre-trial detention in ten jurisdictions: Kenya, South Africa, Brazil, the USA, India, Thailand, England & Wales, Hungary, the Netherlands and Australia. All but one of these (the Netherlands) currently run their prison systems over-capacity. The rate of pre-trial detainees per 100,000 of the national population varies significantly among these countries. Several of them have seen very substantial rises in their pre-trial imprisonment rates, as shown in the figure below.

Change in pre-trial detention rate (number of people held pre-trial per 100,000 of the population) since 1970*

*Figures are from earliest date for which reliable data are available to most recent data as of September 2019.

Causes of pre-trial injustice: Our research included analysis of national legal systems followed by interviews with 60 experienced criminal defence lawyers across the ten countries. We found a gulf between law and practice: although legal systems (in line with international standards) refer to pre-trial detention as an exceptional measure it is, in practice, more often the norm. The problem is rarely the law itself, but wider socio-economic and systemic factors that influence its (mis)application.

People from backgrounds of disadvantage are more likely to be arrested, often don’t have money to pay bail, are less likely to have good legal representation – and for these reasons are more likely to be detained pre-trial.  Aspects of the wider criminal justice ‘machinery’ are also part of the picture: under-resourced police and prosecution services that can’t investigate quickly and effectively; inadequate legal aid; lack of judges and court staff; unmodernised court infrastructure and technology; too few alternatives to custody. All these factors lead to misuse and prolongation of pre-trial imprisonment.

Judicial culture and practice were also identified as problematic, with judges described as being too ready to make unsupported assumptions about risk; too quick to dismiss defence arguments about weak evidence or ways to mitigate risk; overly influenced by fear of media (and social media) criticism; and disinclined to give concrete, evidence-based reasons for their decisions to remand in custody.

Our recommendations for tackling misuse of pre-trial detention are concrete and grounded on the research findings. We’ll be presenting them to policy-makers, practitioners and civil society bodies over the coming months.

More information

Read the full report by ICPR’s Catherine Heard and Helen Fair: https://prisonstudies.org/sites/default/files/resources/downloads/pre-trial_detention_final.pdf

Read the brief: https://prisonstudies.org/sites/default/files/resources/downloads/pre-trial_detention_briefing_final.pdf

See the latest data on prison populations worldwide, at ICPR’s World Prison Brief database: https://prisonstudies.org/world-prison-brief-data

About ICPR’s World Prison Research Programme: https://www.icpr.org.uk/theme/prisons-and-use-imprisonment

Institute for Crime & Justice Policy Research, School of Law, Birkbeck: https://www.icpr.org.uk/

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Crime and global justice: the dynamics of international punishment

Daniele Archibugi, Professor of Innovation, Governance and Public Policy at Birkbeck, and Alice Pease, a researcher working on a modern slavery campaign, discuss a new system of global criminal justice which has emerged over the last quarter of a century, and which they have written about further in their new book.

The Hague, International Criminal Court

International criminal justice is still sailing in uncharted waters. At the end of 2017, after 24 years of activity, the International Criminal Tribunal for the former Yugoslavia (ICTY) closed its doors after handing Ratko Mladić a life sentence and the spectacular live suicide of Slobodan Praljak. In 2018 we will celebrate – with little enthusiasm – the twentieth anniversary of the International Criminal Court. The great hopes that impunity of governors would have been contrasted by an emerging global justice have faded away. Where are we at? Our book tries to outline the strengths and weaknesses of the new international criminal justice system which emerged at the end of the Cold War, to identify its connection with the post-World War II tribunals established at Nuremberg and Tokyo and to explore how it could further help to protect human rights in the changing political contours of the twenty-first century.

Is international criminal justice an effective tool to prevent atrocities and to hold powerful politicians accountable? An assessment of what has, so far, been delivered by international criminal justice is highly unsatisfactory. Those indicted at the bar often appear to be mere scapegoats and seldom have the trials effectively contributed to reconciliation in areas devastated by civil wars. More seriously, some of these trials have been shows of power used by wars’ winners to discipline their opponents.

Is this motive enough to abandon altogether the idea of a supranational system of criminal justice? This is the core question addressed in our new book, Crime and Global Justice. Even if, so far, it has been highly selective, all the defendants judged by international trials have committed atrocious crimes. It is certainly true that many authors of international crimes are still at large, and far too many have not been targeted at all by any investigation. But the fact that the international judicial system is not able to incriminate all culprits is no justification for letting them all off the hook.

Saddam Hussein, who was hanged in 2006 after being convicted of crimes against humanity.

While much of the existing literature has addressed the issue by exploring the potentials of the judicial devices available, we have approached it from a different perspective, namely to look at a few spectacular trials with very different outcomes. We have tried to show that the incrimination of Augusto Pinochet by a Spanish judge helped Chilean society to face up to its own past. Judging Slobodan Milošević while ignoring the war crimes committed by NATO in its war versus Serbia showed instead how biased international justice could be. The conviction of Radovan Karadžić gave at least some solace to the victims of the civil war in the Balkans. The hanging of Saddam Hussein led to an explosion of sectarian violence in Iraq as well as in neighbouring countries and almost succeeded in transforming one of the most brutal dictators of the twentieth century into a martyr. The fact that Sudanese President Omar al-Bashir, after two warrants of arrests were issued in 2009 and 2010, is still firmly in control of Sudan has seriously discredited international justice.

We argue that so long as international criminal tribunals continue to operate in an inter-governmental logic, it will hardly be able to deliver its promises. Governments are providing the budget, selecting the judges, even providing the prisons for the few convicted and this seriously hampers the independence of the judicial power. The hope of a genuinely impartial judiciary will, therefore, rest on the ability of civil society around the world to pressure the official institutions through opinion tribunals, independent investigations, and by carefully watching the proceedings of the International Criminal Court.

The book makes ample reference to films and novels that have been inspired by controversies associated with the global criminal justice system. We hope very much that this wealth of non-academic sources will motivate students to engage with the question of global criminal accountability.

Crime and Global Justice: The Dynamics of International Punishment is available from Polity. 

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