Pre-trial detention and its overuse

Catherine Heard, director of the World Prison Research Programme, at the Institute for Crime & 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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Ireland’s Mother and Baby Homes in Law and Literature

Professor Adam Gearey from Birkbeck’s School of Law writes about the horrific scandal of Ireland’s Mother and Baby Homes, and how its representation in literature may play an important role in the recently opened Commission of Investigation.

A conference this weekend in Dublin City University is dedicated to ‘law and literature’ in Ireland. What is law and literature; and how can this kind of scholarship shed light on matters of public concern? Literature compels us to think about matters that are left unresolved when courts have ruled. In particular, the poet Annemarie Ní Churreáin’s book Bloodroot asks its readers to think about the lives ruined by the abusive regime of the Mother and Baby Homes. Mother and Baby Homes operated throughout Ireland from the early 1900s to more or less the present day. They were institutions run by the Catholic Church for women “who became pregnant.” Women who survived Mother and Baby Homes describe them differently—there are many stories of duplicity, exploitation abuse and forced separations. As Emer O’Toole has written: “women were incarcerated in state-funded, church-run institutions called mother and baby homes or Magdalene asylums, where they worked to atone for their sins.” Mother and Baby Homes were thus part of a system of institutions that served to discipline women and girls; enforcing codes of sexual morality and social conformity. Although not unique to Ireland, recent events have forced a confrontation with the traumatic legacy of Mother and Baby Homes- themes that animate Ní Churreáin’s poems.

Survivors of Mother and Baby Homes have long maintained that church and state presided over the systematic abuse of mothers and babies. However, only recently have Mother and Baby Homes become the subject of a Commission of Investigation. In 2014 Cathleen Corless published research suggesting that there was a mass grave in the grounds of the Bon Secours Mother and Baby Home in Taum containing the remains of over 800 babies and young children. A Commission of Investigation was charged with gathering evidence on conditions in Mother and Baby Homes, mortality rates and adoption practices. Excavations carried out by the Commission established that there had indeed been a mass burial of human remains in a sewage tanks in the grounds of the Bon Secours Mother and Baby Home.

Although the Commission is yet to publish its final report, the “hospital empire” has been denounced in the Dáil, and Taoiseach Enda Kenny came under pressure to make a public apology. The Commission is seen as an important way of establishing the truth. But it is only a partial victory for survivors. The Commission has no power to consider those mothers and adopted children who were subject to forced adoptions. As Tanya Gold, has put it: the possibility of ‘restorative justice’ seems remote to those whose histories have been effectively erased, and who remain outside the scope of the commission.

The poet Annemarie Ní Churreáin’s addresses the lived realities of this history. She has described herself as a “daughter” of the Mother and Baby Homes. Her grandmother gave birth to her father in Castlepollard Mother and Baby Home in the early 1950s. As a single mother, she had to give the baby up for adoption.

How can the horror, the systematic ruin of so many families and so many lives be understood? As an introduction to Bloodroot, Ní Churreáin’s has written:

“If I remain wary today of State care systems and policies, it’s because they disappeared from my life, without explanation or proper support, many of the people I have loved. It is at least in part the State that has taught me what I know in my poetry about space, power structures and the unsaid.”

Ni Churreáin talks of her ‘wariness’ towards the state. ‘Wariness’ stems from words that mean being attentive, heedful or watchful. As a poet, Ní Churreáin is invoking an attentive heeding of those who have disappeared. Heedfulness is linked to an old Irish word which describes weeping and lamentation. Bloodroot is an elegy, a lamentation for loved ones and for what remains ‘unsaid’. The power of law and the state may be able to silence, and to compel speech, but Ní Churreáin remains attentive to those who cannot speak. When the Commission publishes its final report, Bloodroot will be read as its essential supplement. If the Commission cannot recover evidence relating to the trauma of survivors, then perhaps poetry can remain heedful. If the suffering of many survivors is absent from official record,  Bloodroot affirms: “[w]hat comes from desire cannot be erased”.

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A strange irony: How the EU withdrawal process ended up saving the Human Rights Act

Dr Frederick Cowell, Lecturer in Law, argues that the UK’s exiting the EU may have saved the Human Rights Act and secured Britain’s long term future as party to the European Convention on Human Rights (ECHR).

The Brexit process has, in short, pushed the UK government away from what was, until recently, a clearly stated policy – to repeal the Human Rights Act 1998 (HRA), replace it with a British Bill of Rights and eventually withdraw from the ECHR. Both a referendum on Britain’s membership of the EU and HRA repeal, were in the Conservative Manifesto for the 2015 General Election. Repeal of the HRA, which brings the ECHR into UK law and requires UK judges to take the decisions of the European Court of Human Rights into account, has been a stated aim of the Conservative Party since 2006. In fact, its position on the HRA was clearer in its 2010 manifesto than its commitment to EU withdrawal. Coalition with the Liberal Democrats and the creation of the Commission on a British Bill of Rights appeared to kill the idea but, in 2014, the Conservative Party Published its proposals for a British Bill of Rights to replace the HRA.

Entitled Protecting Human Rights in the UK, it proposed breaking the link between UK courts and the European Court of Human Rights, and withdrawing from the ECHR if that was not possible. If implemented, this would have left the UK the only nation in continental Europe (apart from Belarus) that was outside the ECHR. It would likely have been incompatible with the Treaty on the European Union, which commits EU member states to respecting human rights, as defined by the ECHR, as a core EU value. However, as the 2014 policy document went onto note, ‘our relationship with the EU will be renegotiated in the next parliament’ and if there were any problems with the UK’s new bespoke human rights agreement this would be addressed ‘as part of the renegotiation.’ Linking leaving the EU with ECHR withdrawal made sense in terms of political framing. Although being outside the EU has no bearing on ECHR membership – Norway and Switzerland are not EU member states but have been party to the ECHR for almost half a century – the European Court of Human Rights was considered another ‘foreign court’ in the newspapers and political circles that would go onto become the most enthusiastic Brexit supporters.

There is no evidence that renegotiating EU values so as to allow the UK to withdraw from the ECHR but remain in the EU was ever seriously discussed during David Cameron’s attempted renegotiation of EU membership in late 2015. Given that both the EU Justice Commissioner and the President of the European Commission had indicated a few years earlier that any member state attempting to withdraw from the ECHR would raise concerns ‘as regards the effective protection of fundamental rights’, it is highly unlikely that Cameron would have been successful even if he had tried. After winning the 2015 General Election the entire project appeared to slow down; the then Justice Secretary Michael Gove promised proposals on a British Bill of Rights to repeal the HRA within months but, by the end of 2015, nothing had been published. By then academics and legal commentators had started to highlight the constitutional difficulties of HRA repeal, especially in relation to devolution, but the government continued to signal they were fully committed to HRA repeal.

In June 2016, when Theresa May became Prime Minister, she was expected to continue with the policy – she was a long-time opponent of the HRA from her days as Home Secretary, when she infamously and incorrectly claimed that HRA had blocked her from deporting someone because of their pet cat. But, in December 2016, the Attorney-General Jeremy Wright announced that HRA repeal was delayed until after the conclusion of Brexit. In the 2017 Conservative General Election Manifesto HRA repeal and ECHR withdrawal was effectively cancelled for the duration of the next parliament. This was far from popular among the Conservative Brexit supporters but the numbers in the 2015-2017 parliament made repeal difficult (a problem which worsened after the 2017 election). Also, with all of the constitutional difficulties over Brexit, there was little appetite to create an additional set of constitutional problems.

Since the autumn of 2017, the European Parliament has been clear that an important component of a future EU-UK relationship would be the UK’s continued ECHR membership. In the summer of 2018, the European commission draft report on future security cooperation again made membership of the ECHR an essential condition. Theorists of international relations and international law have argued that one of the core reasons for states joining the ECHR was to create a form of democratic lock-in, where the rights contained in it and the frameworks designed to protect them would be locked in place, in part because it would be hard for states to leave the Convention. Although it is superficially easy for a country to leave the ECHR, an exit mechanism is contained in Article 58 of the Convention and there are no direct economic consequences to a state for doing so, the ECHR’s interconnection with other European institutions creates a layer of political restraints constraining exit. The prospect of an exit agreement was clearly used as a lever by the European Parliament in their March 2018 resolution, which required any future trade agreement to be in “strict accordance” with EU values, effectively keeping the UK in the ECHR.

This could be important for securing the HRA’s future because there remains a significant political appetite for its repeal. Human Rights campaigners in the UK are often reassured by polling showing that HRA repeal is not a high public priority. But polling taken over a number of years in response to controversial or high profile decisions from the European Court of Human Rights has identified a significant degree of sympathy for the arguments advanced by the ECHR’s critics. Many of the arguments ranged against both the EU and the ECHR deploy what Fiona de Londras calls the ‘new sovereigntism’ argument – the idea that states should only engage and comply with international courts as and when they want to. Dominic Cummings, the leading political strategist for the Vote Leave campaign, announced earlier this year that he wants a referendum on the ECHR, noting that many leave voters would be ‘mad’ when they realise the UK was still party to it. Given this context, the external economic and political forces locking the UK into being a party to the ECHR as part of the Brexit process have probably secured the HRA’s future – for now.

This piece was first published on LSE’s blog

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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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