Reducing the Excessive Use of Pretrial Detention

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A publication of the Open Society Justice Initiative, Spring 2008 Contents

Foreword Mark Shaw 1 Pretrial Detention

Overview Grand Ambitions, Modest Scale 4 In 2006, an estimated 7.4 million people around Todd Foglesong the world were held in detention while awaiting The Scale and Consequences of Pretrial Detention around the World 11 trial—a practice that violates international norms, Martin Schönteich wastes public resources, undermines the rule of

Case Studies law, and endangers public health. This issue of Boomerang: Seeking to Reform 44 looks at the global over-reliance Pretrial Detention Practices in Chile Justice Initiatives Verónica Venegas and Luis Vial on pretrial detention and examines the challenges Catalyst for Change: 57 of reducing and reforming its use. The Effect of Prison Visits on Pretrial Detention in India R.K. Saxena On the Front Lines: Insights from 70 FOREWORD Malawi’s Paralegal Advisory Service Clifford Msiska Building and Sustaining Change: 86 Reducing the Excessive Pretrial Detention Reform in Nigeria Anthony Nwapa Use of Pretrial Detention Ebb Tide: The Russian Reforms 103 Mark Shaw of 2001 and Their Reversal Olga Schwartz The broad international consensus favors reducing the use of Frustrated Potential: The Short 121 pretrial detention and, whenever possible, encouraging the and Long Term Impact of Pretrial use of alternative measures, such as release on bail or person- Services in South Africa al recognizance. The aversion to pretrial detention is based Louise Ehlers on a cornerstone of the international human rights regime: Pathway to Justice: 141 the presumption of innocence afforded to persons accused Juvenile Detention Reform of committing a crime.1 International treaties and standards in the United States require policymakers to limit the use of pretrial detention. D. Alan Henry Studies in Reform: Pretrial 152 According to the Universal Declaration of Human Rights, Detention Investments in “everyone charged with a penal offense has the right to be Mexico, Ukraine, and Latvia presumed innocent until proven guilty according to law in a Benjamin Naimark-Rowse, public trial at which he has had all the guarantees necessary Martin Schönteich, for his defense.” Mykola Sorochinsky, and Denise Tomasini-Joshi International standards permit detention before trial under certain limited circumstances only. Thus, the Eighth United Reflection Nations Congress on the Prevention of Crime and Treatment Mixing Politics, Data, and 172 Detention: Reflections on of Offenders established the following principle: Reform Efforts Robert O. Varenik Pre-trial detention may be ordered only if there are reasonable grounds to believe that the persons concerned have been involved in the commission of the alleged offenses and there is a danger of Pretrial Detention

their absconding or committing further According to the United Nations serious offenses, or a danger that the Human Rights Committee, detention course of justice will be seriously inter- before trial should be used only where 2 fered with if they are let free. it is lawful, reasonable, and necessary. Detention may be necessary “to pre- One of the major achievements vent flight, interference with evidence of the Eighth UN Congress was or the recurrence of crime,” or “where the adoption, by consensus, of the the person concerned constitutes a UN Standard Minimum Rules for clear and serious threat to society Non-custodial Measures (the “Tokyo which cannot be contained in any other manner.”4 Pretrial detainees are disproportionately It is important however to high- likely to be poor, unable to afford the light that gaps exist between many states’ de jure and de facto compliance services of a lawyer, and without the with international standards in this resources to deposit financial bail. area. Many states that continue the excessive use of pretrial detention have enacted national legislation Rules”).3 These stipulate that govern- that closely mirrors international ments should make every reasonable presumptions against its use and effort to avoid pretrial detention. in favor of the use of alternative meas- In particular, these rules provide the ures. There is thus much work to be following: done not only in reforming legal frameworks but in achieving effective g Pretrial detention shall be used as implementation of those laws already a means of last resort in criminal in place. proceedings, with due regard for the At any given moment, an estimated investigation of the alleged offense and for the protection of society and three million people worldwide are the victim. in pretrial detention. Pretrial detainees are disproportionately likely to be g Alternatives to pretrial detention poor, unable to afford the services of shall be employed at as early a stage a lawyer, and without the resources to as possible. Pretrial detention shall deposit financial bail to facilitate their last no longer than necessary and release should this option be available shall be administered humanely to them. When poor defendants are and with respect for the inherent more likely to be detained, it can dignity of human beings. no longer be said that the criminal jus-

g The offender shall have the right tice system is fair and equitable. to appeal to a judicial or other Moreover, in some countries a signifi- competent independent authority cant number of pretrial detainees will in cases where pretrial detention eventually be acquitted of the charges is employed. against them or released without

2 Open Society

Foreword

having stood trial. Others will be tice systems, have sought to reform convicted of minor crimes that do not pretrial detention practices in often carry a prison sentence. innovative ways. With varying degrees Congested pretrial detention cen- of success each of these countries ters are often chaotic, abusive, and developed unique interventions to unruly places where few inmates are reduce the excessive use of pretrial given the supervision they require. detention. It is essential reading Policies and practices resulting in the for criminal justice policymakers and excessive use of pretrial detention practitioners, particularly those working in developing countries who are contribute to prison overcrowding seeking to reform their justice systems. and, ultimately, to heightened expenditure of scarce public resources for This volume will contribute to the construction and operation of developing and sharing new experien- tial knowledge about the reform of detention facilities. Moreover, as fur- pretrial detention around the world. ther described in this volume, in many By focusing attention on the emerging countries the excessive use of pretrial routines of reform—that is, the self- detention has very real negative conse- conscious habits, methods, and tech- quences for public health, family sta- niques being used to detect problems bility, social cohesion, and the rule of and introduce solutions—the articles law. Poor pretrial detention practices that follow permit us to understand not in compliance with international better which reforms have worked standards consequently endanger per- and which have not, and why. This sons and communities far removed book should be a significant resource from those actually detained. for criminal justice policymakers and This edition of Justice Initiatives reformers and should play an impor- contains accounts of how a number tant role in initiating an international of countries from across the globe, debate on developing rights-based with varying levels of economic devel- solutions to the excessive and opment and a variety of criminal jus- inequitable use of pretrial detention.

Notes

Mark Shaw is the inter-regional advisor, Human Security Branch of the United Nations Office on Drugs and Crime. 1. Universal Declaration of Human Rights, Article 11(1) (New York: United Nations, General Assembly, Resolution 217A[III], December 10, 1948). 2. Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, August 27 –September 7, 1990. 3. United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules), Rule 6, adopted by the General Assembly December 14, 1990. 4. Human Rights and Pre-Trial Detention. A Handbook of International Standards relating to Pre-Trial Detention, Professional Training Series No. 3 (New York: United Nations, 1994), 14–15.

Justice Initiative 3

Pretrial Detention

OVERVIEW Grand Ambitions, Modest Scale

Efforts to reform and reduce the expedite trials. A fifth deals with the use of pretrial detention take many wholesale transformation of a system forms. Todd Foglesong identifies com- of justice in Chile, with new adversar- mon elements among the projects ial hearings and clear restrictions on described in this volume—and finds the use of detention. A sixth explains reason for optimism. the introduction of a new code of crim- You are about to read eight reports on inal procedure in Russia and the coun- varied efforts around the world to terreform of rules about detention. reduce the excessive use of pretrial A seventh report is about the use detention and improve justice sys- of strategic planning to encourage tems’ decision making about the lives local officials to make broader use of of people accused of crimes. The expe- noncustodial measures of restraint riences straddle different continents and punishment for juvenile defen- and legal traditions, and the reports dants in the United States. An eighth depict projects with diverse goals, examines investments by the Justice strategies, and outcomes. Yet they Initiative in reform efforts in Mexico, have in common the desire to reduce Ukraine, and Latvia. Additional chap- the harm done by unnecessary pretrial ters examine the global scale and detention to individuals, families, and consequences of pretrial detention communities. and delve into the roles politics and One report examines the introduc- data play in reform efforts. tion of paralegals in Malawi prisons to For all their diversity, these reports expedite trials and, where possible, capture only a part of the range of secure the release of defendants from efforts underway around the world custody before trial. Another report is today to improve pretrial detention. about the deployment of duty solici- Other international organizations, tors in police stations in Nigeria to such as Penal Reform International, help prevent unwarranted detention the International Centre for Prison and also to release defendants from Studies, the European Union, the further custody. A third describes a Council of Europe, and the United pilot bail information scheme in Nations all disseminate guides and South Africa that sought to diminish working papers and in some cases the frequency of detention and remove catalogues that depict the array of from jail defendants who could efforts around the world to make not afford to pay money bail. A fourth detention less harmful, more humane, analyzes a prison visitors program and and fairer.1 The experiences described rights monitoring campaign in India in these reports are a small and not that tried to discourage detention and necessarily representative sample of

4 Open Society Overview

what is happening or what is possible Working within the confines of to accomplish. But they convey a sense imperfect systems of justice is new. of the excitement and opportunity In the postwar, postcolonial, and underlying what appears to be a immediately post-Soviet periods of the new approach to detention reform— 20th century, the scale of efforts to one that emphasizes pragmatism, reform criminal justice around the empiricism, and collaboration. world was immodest—grand projects of reengineering that involved, typically, new constitutions, new justice insti- 1. Pragmatism in Detention Reform tutions, and entirely new legal sys- The real problems with detention tems. Participation in the remaking today, these reports suggest, are not of justice systems, moreover, was lim- 2 with the norms but with practices. ited to those with legal expertise. Almost all of the reform projects described here took place in the shadow of existing law: no revisions to basic rules of procedure were required Almost all of the reform projects took in order to intervene or achieve impor- place in the shadow of existing law: tant changes in Malawi, India, Nigeria, South Africa, and the United States. no revisions to basic rules were required In fact, most of the projects involved in order to achieve important changes. modest adjustments to existing routines and institutions—the expansion of an existing service in Nigeria (legal aid lawyers), the creation of an auxiliary service in Malawi (a mobile fleet Justice was a realm almost exclusively for lawyers and judges and academics. of paralegals), the policing of time- Today, by contrast, we are witnessing lines for decisions in the United States not so much the creation of new foun- (volunteer, interagency review com- dational rules and fundamental insti- mittees), organized pressure for com- tutions such as civilian police forces pliance with rules about the duration or public defender offices, but rather of detention in India (structured the strengthening of flawed justice prison visits), and the provision of systems, the better management of verified information about the risk of operations, and the establishment releasing defendants in South Africa of adjunct or auxiliary organizations (bail information reports). These and that can support, adjust, and extend other promising solutions consist of the services of the state. The ambitions practical modifications to existing may remain grand, but the scale of operations. “The seeds of reformation projects is modest. And the barriers and improvement in the administra- to participation are lower, because the tion of justice,” writes R.K. Saxena, required skill sets can be developed “lie dormant in the existing law itself.” outside of law school.

Justice Initiative 5 Pretrial Detention

2. Empiricism and the measures that had political meaning Wheels of Measurement as well as analytical value had to be In each case described here, public invented on the spot. officials and project managers had to These reports also show that even manufacture new measures of pretrial rudimentary measures can be power- detention. The information needed to ful. In Malawi, the paralegal services detect and diagnose problems with pre- prepared simple lists of people in trial detention, and the data needed to detention so that officials could count simulate solutions or drive indicators individuals, recognize cases, prioritize of progress and deterioration, simply hearings, and sometimes send people did not exist. Because government home. Without prison visits and para- agencies collect information to perpet- legals, that information did not exist uate routines, not change them, and in a reliable form. In India, prison visitors also produced new counts of inmates in different places according Because problems with pretrial detention to the stages of their custody. Their lists also helped officials sort and vary so greatly around the world, the prioritize cases. wheels of measurement in justice reform must be reinvented each time. 3. New Forms of Collaboration and Co-governance All of the accounts in this volume because the character of problems describe with gusto the benefits of with pretrial detention varies so great- good governance in pretrial detention. ly around the world, the wheels of Much of this governance is being measurement in justice reform must shared across the institutions of gov- be reinvented each time. ernment as well as between state and In Chile, the public defender’s civil society. Indeed, so much of office had to collect new information the work of pretrial detention reform about the frequency of applications for in these accounts involves collabora- detention in order to debunk claims tion and co-governance that it sounds that prosecutors were too lenient on strange to call the civil society organi- offenders. In Russia, the legislature zations nongovernmental. surveyed people’s experiences with Each report describes the invention justice, through conversations and or invigoration of better management polls at regional meetings of officials, and interagency cooperation and clos- to create measures of the impact of er scrutiny of detention practices. reforms that balanced the complaints These include venues for reviewing of individual agencies and thus helped activities within one justice institu- manage the temptation to withdraw tion, such as automatic review com- the reforms. In both cases, the sources mittees in the courts and new of information were new, and the management mechanisms in the jails,

6 Open Society Overview

and also interagency forums such as Supporting New Trends court-user committees and national in Detention Reform monitoring commissions and still The new focus on practices instead other mechanisms for sharing infor- of norms, the emerging art of collabo- mation across departments, profes- ration and cooperation, and the insis- sions, and agencies. These and other tence on sound systems of measure- interstitial and intermediate opera- ment may be signs of a promising and tions help preserve general govern- more participatory approach to justice reform. The skills needed by these ment responsibility for dealing with practitioners of justice reform seem to detention while also sustaining come from economics and engineer- relationships between nongovern- ing, politics and social science as mental activists and their colleagues much as from law and human rights. in the state. The character of the collaborations also may hold a clue about how to sus- The new focus on practices instead of tain change over time. Most projects norms represents a promising and more built relationships with several different government agencies, not just one participatory approach to justice reform. official or institutional partner. Those projects that hitched their fortunes to one leader or were dependent on one Justice reform in this generation, institution fared worse than those that to pinch a phrase from a young prose- built a wide platform of friends and cutor in Chile, is as much about poet- colleagues. This strategy of diversifica- ry as it is about plumbing. But the tion, also, was as much a conscious curricula in law schools and human means of managing project risks as it rights training programs today was a reflection of the great peculiarity emphasize theory over practice, poetry of pretrial detention: no single govern- over plumbing, and the schools and ment agency controls detention and instructors that can firm up the skills sets for this new generation have yet no one department acting alone to be created. So while these accounts can solve its problems. By forging of reform inspire optimism about the unconventional alliances across range of people who can participate, government institutions and with they also illustrate the need to support officials at many levels of authority, the acquisition of skills for under-the- project leaders helped ensure a longer sink justice reform. shelf life to innovation. And by Most of the projects described documenting and memorializing the here would have benefited from experiences in a public manner, they more scientific and internationally also prepared the seeds for future comparative measures and informa- rounds of collaborations. tion. In Malawi, India, and Nigeria,

Justice Initiative 7 Pretrial Detention

for example, evaluations of progress lems complying with the conditions depended on simple before-and-after of liberty? What is the net contribution measures of the proportion of unsen- to public safety of placing people tenced inmates in prison, even though in jail? What kind of drain on public a whole range of forces and factors investments in schools and roads wholly unrelated to the intervention comes from expenditures on jails can affect this measure. In Russia and prisons? and Chile, the fragility of measures of International norms and guidance detention placed reform legislation in on pretrial detention are becoming jeopardy, especially by allowing claims more precise today, but handy answers that higher crime rates and increased to these kinds of questions are still pretrial release were related. lacking. There also is no database yet on what constitutes “a reasonable time” to trial or what “restricting To convince skeptical observers that detention as far as possible” might investments in reform make sense, mean in practice. An investment in practitioners need indicators that the measurement of these variables and other basic operations—such matter to the public as a whole. as the number of days between arrest and sentence in prosecutions for theft or assault—in a few exemplary juris- To convince skeptical observers dictions would help innovators around that investments in reform make the world locate their own practice sense, practitioners need globally rele- in global context.3 When reformers in vant measures of local justice as well Malawi can show not only how their as indicators that matter to the public practices accord with international as a whole. They need to compare standards but how they compare to practices across countries and to routines in Botswana, Brazil, and measure detention in ways that have Belgium they will command greater meaning for public officials and citi- attention from public officials.4 zens who are typically not concerned with jails and justice. Of course, the Project leaders around the world stable of questions that matter to will need not only access to such infor- the public will vary by country and mation; they will need training in context, but we know enough already the development, management, and to list a few questions that capture interpretation of the data. There is common concerns: no need for new universities or degree What type and proportion of vic- programs. Methods camps and sum- tims receive timely or full restitution mer schools organized and taught when offenders are placed in deten- by project managers and NGO leaders tion? How frequently do defendants would be adequate means of circulat- who are not in detention have prob- ing knowledge about the arts of collaboration and measurement.

8 Open Society Overview

The new nature of collaborations justice, endorsing their proposals and with government agencies today, jointly exploring new ideas. If the finally, creates additional training chal- degree of constructive engagement lenges for the leaders of nongovern- between state and non-state actors in mental organizations and the officials matters of pretrial detention is a sign with whom they work. Not all organi- of progress, then there have been zations or donors are prepared for and major advances around the globe. comfortable with such extensive Also remarkable is that many of the collaboration, especially with govern- projects achieved or contributed to ments that are unstable, unpre- very positive results. In India, in dictable, or responsible for great abus- the states in which the prison visitors es. At a workshop for the discussion program operates, the proportion of of these reports, one author asked, “awaiting trial persons” is much lower “When is a collaboration ‘collabora- than in states in which it does not tion’?” Privately, public officials in the operate. In Malawi, not only did the justice sector sometimes admit skepti- proportion of inmates in detention fall cism about their partners, not know- during the period of the operation ing the backgrounds, or how long they of the paralegal advisory scheme; so can count on their support. There are did their absolute number. In Nigeria, ethical questions to be managed on too, the proportion of all inmates both sides. awaiting trial in states where duty solicitors were active decreased, and a Optimism and Realism large number of detainees were also The mere existence of all this activity sent home before trial. And in Chile, to reform pretrial detention is remark- the United States, and initially in able. Around the world today, NGOs Russia and South Africa, other innova- are intervening in traditional operations helped suppress the number of tions of the state, operations in which people put in detention. public officials may lack the informa- These are two very hopeful signs of tion and resources necessary to be a more humane approach to pretrial sure about the equity and efficiency of detention, and yet the accounts here their decisions. Justice officials have are not uniformly uplifting. Far from good reasons to be wary of alliances it. The reports show not only that gov- in civil society, as well as powerful ernments routinely place in detention incentives to resist efforts to reduce people who need not be there but also detention. And yet in most cases, that it is difficult to sustain innova- the interventions described here took tions and collaborations over time and place not just with the indulgence of assure continued restraint in the use governments but with their active col- of detention. In South Africa today, laboration. Governments today, these there is an active pretrial services reports show, are working closely with program in only one province, and nongovernmental organizations in there are large numbers of people in the most sensitive spheres of criminal detention solely because they cannot

Justice Initiative 9

Pretrial Detention

afford bail. In both Russia and Chile, Progress in pretrial detention is legislators quickly revised reforms, not a triumphant trend but rather demonstrating the fragility of progres- an occasionally rewarded impulse. Not sive laws and practices on detention. all projects take off, and even when In the United States, especially in poor good ideas are implemented, the minority communities, juveniles are returns can be marginal and diminish always at risk of detention, despite quickly. But this observation need not greater awareness of the long-term be discouraging. In fact, the diligent harm it can cause and a wider array inventiveness of reformers around of proven alternatives for managing the world should be inspiring, for it reminds us that good outcomes delinquent youth. Around the world in criminal justice are a human arti- today, far too many people remain in fact—imperfect, inconsistent, and jails, usually in conditions that are as much a matter of trial and error, dangerous for inmates, guards, and as it were, as of legal science and con- the communities to which they even- stitutional engineering. The pursuit tually return. of justice, these reports suggest, What, then, are we to make of this consists of the gradual development field? What is the value of investing of slightly better but usually temporary in reform if detention remains a prob- solutions to wretched human problem in so many parts of the world? lems. That there is no end to that What can we expect from the field in pursuit should not be a cause for the future? resignation, but reinvestment.

Notes

Todd Foglesong is a senior research fellow at the Kennedy School of Government and coordinator of the Justice Systems Workshop at the Program in Criminal Justice Policy and Management.

1. See, for example, Adam Stapleton, Good Practices in Reducing Pre-Trial Detention (London: Penal Reform International [PRI], undated), www.penalreform.org/english/frset_theme_en.htm; Dealing with Prison Overcrowding, Guidance Note 4 (London: International Centre for Prison Studies [ICPS], 2004), www.kcl.ac.uk/depsta/rel/icps/gn4-prison-overcrowding.pdf; Pre-Trial Detention, Guidance Note 5 (ICPS, www.kcl.ac.uk/depsta/rel/icps/gn5-pre-trial-detention.pdf).

2. Even in post-conflict countries where legal systems are being reconstructed, sometimes from scratch, there is a new attentiveness to the tasks of making routine new norms and measuring practices. See, for example, the recent Request for Proposals (RFP) (No. 936) from the United Nations on building a “rule of law index” for post-conflict settings.

3. The European Union recently recommended an investment along these lines. See the “Discussion Paper: Meeting of Experts on Minimum Standards in Pretrial Detention Procedures” (Brussels: European Commission, Directorate General, Justice, Freedom and Security, June 9, 2006), 6–7.

4. An international nongovernmental organization, such as PRI, or a research center, such as ICPS, might be able to host a database on these and other issues jointly with multilateral institutions such as the UN, the European Union, or the World Bank.

10 Open Society

Overview

The Scale and Consequences of Pretrial Detention around the World

Martin Schönteich takes the global once convicted, given a noncustodial measure of the over-use of pretrial sentence. detention and its costs in both human We are only beginning to under- and financial terms. stand the scale and consequences of Outside of a small group of penal pretrial detention around the world. reformers, human rights advocates, There is considerable room in this and prison administrators, few people field for better understanding of the have given a great deal of thought to global meaning of detention. Our pretrial detention and its resulting measures may still be rudimentary, for problems. Not many people under- until now little research has been stand that excessive pretrial detention undertaken to explore how pretrial affects, in one way or another, all members of society. This paper seeks Not many people understand to catalogue and describe the pervasive impact of pretrial detention on that excessive pretrial detention detainees, their families, the larger affects, in one way or another, community, public safety, governance, and the rule of law. all members of society. On any particular day around the world, about three million people are detention affects people and institu- held in pretrial detention. During the tions beyond the individual detainees course of an average year, 10 million and their places of detention.1 people are admitted into pretrial detention. Some of these people are The papers in this volume give detained for a few days or weeks, but definitions and measures of detention many will spend long periods of in specific countries. This essay sets time in custody. In some countries, those papers in a global context, detainees will live in jail for months drawing together the present state of and even years. knowledge on the extent and consequences of pretrial detention. It shows In many parts of the world pretrial that pretrial detention reform is of detainees live in worse conditions than vital importance to anyone interested convicted prisoners. In some countries in fostering public policies that do pretrial detainees are assaulted and more good than harm and that serve mistreated by police officers or guards. to support broader political, economic, In almost all countries, a significant and social goals in any given society. number of detainees are acquitted or,

Justice Initiative 11

Pretrial Detention

It is worth stating at the outset that awaiting trial. Prisoners whose trials this paper does not advocate an aboli- are underway or who have been tion of the mechanism of pretrial convicted but not yet sentenced are detention. Unlike, for example, cruel also usually classified as pretrial and unusual punishment or torture, detainees.6 pretrial detention does not, per se, con- Persons popularly understood to be stitute a human rights violation.2 pretrial detainees fall into one of four International human rights norms categories. In chronological order, recognize the need for pretrial deten- according to the flow of the criminal tion provided it is applied fairly, ration- justice process, the categories are the ally, and sparingly. In certain specific following: (i) detainees who have been cases, pretrial detention serves an formally charged and are awaiting the important function: namely, to ensure commencement of their trial; (ii) that defendants who pose a risk of detainees whose trial has begun but absconding stand trial; that defen- has yet to come to a conclusion where- dants who present a violent danger to by the court makes a finding of guilt or the community do not commit serious innocence; (iii) detainees who have crimes pending trial; and that been convicted but not sentenced; and unscrupulous defendants do not (iv) detainees who have been sen- intimidate witnesses or otherwise tenced by a court of first instance but interfere with the lawful collection of who have appealed against their sen- incriminating evidence. tence or are within the statutory time limit for doing so.7 In most countries the vast majority of detainees fall into Defining Pretrial Detention the first two categories. What is pretrial detention? In the Generally not included in the defi- English-language world alone, people nition of pretrial detention is the sta- in detention are referred to variously tus of arrested persons or suspects as “remand prisoners,” “remandees,” who have not yet appeared in front of “awaiting trial detainees,” “untried a judicial officer for a determination 3 prisoners,” and “unsentenced prison- whether they should be released or ers.” In countries with other lan- detained awaiting trial (i.e., remanded guages and different legal traditions in custody).8 Also excluded from most and cultures, the terms for detention countries’ count of the pretrial deten- vary, too. Indeed, one can get lost in tion population are asylum seekers, the numerous ways of classifying undocumented migrants, and others 4 inmates. But all criminal justice sys- held administratively. While these cat- tems differentiate between sentenced egories of people are usually not con- and unsentenced prisoners, and most sidered to be pretrial detainees, the afford individuals in the latter category problems they face as a result of their 5 a different legal status. detention and the impact on wider Unsentenced prisoners are, of society is very similar to that of pretri- course, not only persons who are al detainees generally.

12 Open Society Overview

Figure 1: Number of pretrial detainees as a proportion of the total prison population, by region, 2006

Europe 20.5

Oceania 21.9

Americas 25.2

World 33.1

Africa 35.2

Asia 47.8

0% 10% 20% 30% 40% 50%

Source: World Prison Population List, International Centre for Prison Studies.

The Extent of Pretrial pretrial detention between countries Detention in the World 9 with different size populations. Globally, as of late 2006, almost every Measured as a rate per 100,000 of third incarcerated person was in the general population, almost 44 pretrial detention.10 But this propor- per 100,000 people were in detention tion varies considerably by region. worldwide at the end of 2006. The As Figure 1 shows, the region with region with the highest pretrial deten- the highest proportion of pretrial tion rate—at more than twice the glob- detainees is Asia (47.8 percent), al average—is the Americas (89.6 per followed by Africa (35.2 percent). 100,000), followed by Europe (46.2), In Europe about 20 percent of all pris- Asia, Africa, and Oceania (Figure 2). oners were pretrial detainees in 2006. This rate of pretrial detention Another measure of the extent varies not only between regions of of pretrial detention is the number the world but also within individual of pretrial detainees as a proportion of regions. For example, the pretrial the general population. This pretrial detention rate in Eastern Europe (91 detention rate is unaffected by per 100,000) is more than six times changes in the actual number of the rate in the Nordic countries of sentenced prisoners and thus may be Europe (14 per 100,000). In 2006, a better guide to assessing the scale North America’s pretrial detention of detention around the world.11 It also rate was 137 per 100,000 (in large makes it easy to compare the use of part due to the high level of both

Justice Initiative 13 Pretrial Detention

Figure 2: Number of pretrial detainees per 100,000 of the general population, by region, 2006

Oceania 26.6

Africa 37.7

Asia 40.6

World 43.6

Europe 46.2

Americas 89.6

0 10 20 30 40 50 60 70 80 90 100

Per 100,000 of the population

Source: World Prison Population List, International Centre for Prison Studies.

imprisonment and pretrial detention populations below three million peo- in the United States). By comparison, ple.13 If the world’s three million South America had a pretrial deten- pretrial detainees were to stand in tion rate of 64 per 100,000, while a straight line with arms outstretched the largely English-speaking countries and touching, they could form a con- of the Caribbean had a rate of 61 tinuous line stretching from London per 100,000. to New York City, with enough people Yet another, and perhaps more to spare to continue on to reach evocative, measure of the extent of Washington, D.C. pretrial detention around the world is Still, the figure of three million the total number of individuals in does not adequately convey the real detention.12 While accurate and up-to- extent of the use of pretrial detention date data are not available for all coun- around the world. This figure repre- tries, we know that at the end of 2006, sents a snapshot in time, only captur- some three million people were in ing the number of persons in pretrial pretrial detention. It is useful to place detention on a specific day—the last this large number in perspective. day of the month or year, for example. Some 42 percent (99 out of 237) of But in any prison system a significant- the world’s sovereign states and ly higher number of people are placed dependent territories have national in pretrial detention over the course of

14 Open Society Overview

Figure 3: Number of pretrial detainees on September 1, 2003, and number of pretrial admissions during 2003, selected European countries14

Switzerland 28,765 2,267

Italy 71,532 12,082 91,188 England & Wales 13,089

Germany 59,942 16,973

59,348 France 21,278

Ukraine 75,282 35,929

0 20,000 40,000 60,000 80,000 100,00

No. of addmissions into PTD during 2003 No. in PTD on Sept. 1, 2003

Source: Council of Europe Annual Penal Statistics, Survey 2003 and 2004.

a year than can be found in detention Switzerland presents an even starker on a particular day. example of this disparity whereby The number of individuals directly the number of pretrial admissions affected by a country’s pretrial deten- in 2003 was almost 13 times as high tion practices is therefore considerably as the count of pretrial detainees on higher than what the data at first September 1 that year (Figure 3). glance appear to suggest. For example, According to the Council of 13,098 persons were held in pretrial Europe, the 28 European prison detention in England and Wales on systems for which data is available September 1, 2003. Over the course held 181,487 pretrial detainees on of 2003, however, 91,188 pretrial September 1, 2003. Over the course admissions were recorded in England of that year the same prison systems and Wales. In other words, while processed 561,131 pretrial admis- the conventional way of presenting sions—a ratio of 1:3.1. Non-European the data indicates a pretrial population data is very hard to come by. We know, of just over 13,000 for England and however, that in South Africa the com- Wales in 2003, close to seven times parable ratio for 2005 was 1:4.8. In the as many individuals were detained United States federal detention system during the course of that year—many the ratio was 1:6.3 in 2000/01.15 for relatively short periods of time.

Justice Initiative 15 Pretrial Detention

Using the relatively low European that country is 3.7 years. It has also ratio of 1:3.1 and extrapolating to the been reported that remand prisoners world as a whole, we can estimate that in many African countries are the world’s penal systems processed at detained for many years before trial.18 least some 9.3 million pretrial admis- According to Human Rights Watch, sions during 2006.16 If we assume pretrial detainees “in numerous coun- that the bulk of these admissions, say tries . . . make up the majority of the 80 percent, involved unique individu- prison population. Such detainees als, then 7.4 million persons spent may in many instances be held for some period of time in pretrial deten- years before being judged not guilty of the crime with which they were charged.”19 We can estimate that the world’s penal If we—again conservatively—pre- systems processed at least some 9.3 sume that the global average period of pretrial detention is 167 days, then million pretrial admissions during 2006. the three million persons in pretrial detention at the time of writing will spend a combined total of 501 million tion in 2006. This is a large number days in detention. It is also instructive of people. Most countries (140 out of to place the cumulative half-billion 237) have national populations below days the present group of pretrial 7.4 million people. Moreover, our detainees will spend in detention hypothetical 7.4 million pretrial into perspective. It is estimated that detainees would now have to start in the manpower required to build the Johannesburg, South Africa, to form Great Pyramid of Khufu (Cheops), one uninterrupted line going through the largest pyramid in Egypt, was 52 the length of Africa to reach London million man-days.20 The Empire State and then cross the Atlantic to reach Building took a “mere” 875,000 man- Washington, D.C., via New York City. days to build.21 In theory, therefore, Another way of gauging the extent the total time the present cohort of of pretrial detention is to measure pretrial detainees will spend in deten- the number of days people spend tion equals the man-days necessary in detention. According to a 2003 to build an Empire State Building European Commission investigation, in every country of the world, plus a the average length of pretrial deten- pyramid the size of the Pyramid of tion in 19 of the then 25 member Khufu on six continents, and still have states of the European Union was 167 a few million man-days to spare. days, or 5.5 months.17 There are no equivalent data for other countries. Measuring the length of a human The global average is almost certainly chain of the world’s pretrial detainees likely to be longer. According to the or the size of a potential labor force report on Nigeria in this volume, the embodied in the pretrial detainees average length of pretrial detention in incarcerated at the end of 2006 may seem frivolous. It does, however, allow

16 Open Society Overview

us to visualize better the true extent of communities. For example, a detainee pretrial detention in the world today. who is infected with a communicable In a crude way these accounts and disease while in pretrial detention the associated statistical information may, upon his release, pose a health permit us to discern one important risk not only to his immediate family consequence of the widespread use of but also to the broader community pretrial detention: the loss of liberty with which he interacts. To illustrate for a large number of people over this link we first look at the conse- extended periods of time. What this quence of pretrial detention on indi- information fails to show is the wide- vidual detainees and thereafter explore ranging and perverse consequences of its impact on detainees’ families, pretrial detention on the physical, society, and the state. mental, and economic wellbeing of detainees and, importantly, its harmful impact on individuals other than Largely ignored in policy debates about the detainees and on society in gener- pretrial detention is its deleterious effect al. It is to a discussion of these conse- on detainees’ families, wider society, and quences that we now turn. the effective administration of justice. The Consequences of Pretrial Detention It is surprising how little information Pretrial Detainees exists on the consequences and impact A decision to detain a person before he of pretrial detention. The available lit- is found guilty of a crime is a particu- erature tends to focus on how pretrial larly draconian ruling for a court to detention affects the detainees them- make. The numerous and insidious selves. This is understandable, as repercussions for the defendant are detainees are most directly affected ably summarized by a senior officer of by unfair and irrational pretrial deten- the Probation Service in England and tion regimes, especially if—as is all too Wales as follows: often the case—the conditions under which they are detained are deplorable When a person is remanded in custody, and inhumane. they can lose their accommodation, their Largely ignored in policy debates job, be locked away for 23 hours each about the use and application of pre- day, and endure the pressures, hazards trial detention is its deleterious effect and indignities of prison life. Remand on detainees’ families, wider society, prisoners have inadequate access to legal state governance, and the effective representation, their prison conditions administration of justice—all of which whilst on remand are poorer than their are explored more fully below. The sentenced counterparts and the suicide consequence of pretrial detention on rate amongst remandees is very high. Such defendants suffer regular invasions individual detainees can often have a of privacy each time they are searched domino effect on their families and

Justice Initiative 17 Pretrial Detention

and often fear danger from those incar- the facilities, rights and privileges cerated with them.22 granted to convicted inmate. . . . [I]n some cases, such deprivations amount The conditions of confinement for to an inducement to plead guilty in pretrial detainees are typically worse order to obtain better conditions of than for sentenced inmates, even in confinement.”25 affluent countries such as the United In some countries, pretrial Kingdom. A report from Scotland detainees are held at police stations for found “their conditions in custody are long periods of time under atrocious at best equivalent, but most common- conditions. According to Human ly worse than, those of convicted pris- Rights Watch reports, the conditions 23 oners.” According to Baroness Vivien in such police lock-ups “are filthy, often stuffy and dim, and seldom offer opportunities for exercise or recre- Conditions of confinement for ation.”26 It is also at police stations pretrial detainees are typically where the physical abuse of pretrial detainees is most likely to occur at worse than for sentenced inmates. the hands of the police to extract confessions and admissions. In a number of countries pretrial detention is gov- Stern of the International Centre for erned by the interests of the criminal Prison Studies, for some detainees investigation agencies. Detainees are who are compelled to spend long peri- under the jurisdiction of the prosecut- ods of time incarcerated under poor ing authorities, who make all vital sanitary conditions, in acutely over- decisions regarding conditions of crowded prisons with inadequate incarceration. According to Human nutrition, and limited—if any—access Rights Watch, prosecuting authorities to healthcare, a period of detention routinely prevent detainees from com- 24 “can be a death sentence.” municating with the outside world or Detainees also suffer from neglect, inmates other than their cellmates.27 not just abuse and unsafe conditions of confinement. Prison administrators Damage and Deterioration tend to see pretrial detainees as a of Detainees Mental Health group whose imprisonment is temporary, while the main task of prison is Imprisonment is known to have to deal with those who have been negative effects on prisoners’ mental 28 sentenced. That is, prison administra- well-being. Factors that contribute to tors regard their main mandate as this include overcrowding, violence and the custody and rehabilitation of intimidation common to the prison sentenced prisoners. A multicountry environment, enforced solitude, lack study found that “most prison systems of privacy, a dearth of meaningful in practice frequently deny to the activities, and inadequate mental remand population access to many of health services. Moreover, in many countries people with mental disor-

18 Open Society Overview

ders are disproportionately likely to with their confinement and their pend- be incarcerated.29 Mental disorders ing trials. These stressors, collectively present at the time of admission to termed confinement shock, include, for prison are usually further exacerbated example, the experience of being torn out of their familiar social environments, by the stress of imprisonment. of being isolated, and of losing control Suicide is often the single most over their lives. Moreover, they experi- common cause of death in correction- ence increased insecurities about the al settings. A survey of 36 member unfamiliar jail environment and anxiety states of the Council of Europe about their trials.34 revealed that 2,851 prisoners died in penal institutions in 2003, of whom 1,520 (53 percent) were suicides.30 This figure does not include Russia, which Suicide rates among pretrial has high rates of mortality in prison. detainees are considerably higher According to the World Health than among sentenced prisoners. Organization (WHO), prisoners not only have higher suicide rates compared to their counterparts in the community, but suicide rates among pre- Other reasons for the high inci- trial detainees are considerably higher dence of mental health problems than among sentenced prisoners. among pretrial detainees include the Among pretrial detainees the suicide fact that in many penal systems pretri- rate is 10 times that of the outside al detainees are considered ineligible community, while sentenced prison- for work, educational, or vocational ers have a suicide rate three times programs or not deemed to have been higher than in the outside communi- in prison long enough to demonstrate 35 ty.31 In the United States, the suicide a sustained period of good behavior. rate among pretrial detainees is 9 to 14 Such enforced idleness “fosters a times higher than that in the general lowering of self-esteem, loss of skills, 36 population.32 In 2002, more than a and inevitable institutionalization.” third (38 percent) of prison suicides Moreover, the relatively high turnover in England and Wales were committed of pretrial detainees poses limitations by pretrial detainees, even though they on the provision of meaningful inter- constituted only 19 percent of the total ventions. Uncertainty about the out- prison population.33 Pretrial detainees come of their impending trials can are particularly at risk of committing also place detainees under consider- suicide during the initial period of able strain and has been identified as a their confinement. significant contributory factor in incidents of self-harm.37 Bullying—which One reason for the high suicide rate has been shown to be more common among recently detained inmates is that, among pretrial detainees—is a further upon confinement, they may experience contributor to suicides and self-injury multiple situational stressors associated among detainees.38

Justice Initiative 19 Pretrial Detention

For juvenile pretrial detainees, who higher rates of TB infection than the may be experiencing their first separa- general population. In the former tion from parents or caregivers, these Soviet Union, for example, TB infec- feelings of depression, anxiety, and tion in prisoners is reported to be 200 hopelessness—common among pris- times more prevalent than in the gen- oners—are exacerbated. In the United eral population, while in the United States it has been found that for one- States the infection rate among pris- third of incarcerated youth diagnosed oners ranges from three to 11 times with depression, the onset of the that of the general population.41 depression occurred after they began TB originating in prisoners can— their incarceration and that poor men- and has—been transmitted to prison staff, visitors, external health care workers, and the broader community. Overcrowding, limited access to Outbreaks of multidrug-resistant TB occurred in U.S. prisoners in the early health care, violence, and other factors 1990s, spreading to patients in local make prisons a perfect habitat for the hospitals, with mortality being as high spread of infectious diseases. as 72 percent to 91 percent. Within two years, the TB strain originating from a New York state prison spread to Florida, Nevada, Georgia, and tal health and the conditions of deten- Colorado.42 tion together increase the likelihood In Russia TB is widespread in pris- that incarcerated teens will engage in ons. In fact, in Russia, a history of self-harm and suicide.39 incarceration in both pretrial detention centers and prison has become Spreading Infectious Disease a key risk factor for TB.43 Unprotected Prisoners typically come from the from the TB epidemic and other infec- poorest sectors of society and conse- tious diseases, many pretrial detainees quently already suffer from health end up spending months and even inequalities. Incarceration commonly years awaiting their day in court in aggravates existing health problems. overcrowded cells where, as one com- Overcrowding, poor nutrition, lack of mentator put it, “a death sentence exercise, limited access to health care, stalks people who have not yet been violence, risky sexual practices, high convicted of a crime.”44 rates of intravenous drug use, sharing HIV rates in prison are also signif- razor blades, and tattooing make pris- icantly above the national average in ons a perfect habitat for the spread of many countries. In parts of Europe 40 infectious diseases. and the United States, up to 20 per- Prison overcrowding facilitates the cent of inmates are HIV-positive. In transmission of tuberculosis (TB) bac- prisons of Latin America and sub- teria among inmates. Prisoners Saharan Africa disproportionately around the world have consistently high rates of HIV infection have also

20 Open Society Overview

been found.45 While it is undoubtedly five times at the magistrates’ court and an extreme case, an account of the was refused bail on each occasion. spread of HIV/AIDS in Lithuania is Finally, when the case was committed indicative of how prisons are effective for trial, the police withdrew their vectors for the spread of infectious objection and bail was granted. After diseases. In 2002, 263 prisoners at a almost four weeks in pretrial deten- prison in Lithuania tested positive for tion, the defendant no longer had a job HIV. Yet before these tests, Lithuanian to return to, and the rent of the house officials had counted just 300 cases of where he had lived for seven years was HIV in the whole country, or less than in arrears. Three weeks later he and 0.01 percent of the population, a fig- his family were evicted. The defendant ure that put Lithuania at the lowest rate of infection in Europe.46 After almost four weeks in pretrial Disrupting Families detention, the defendant no longer and Communities had a job to return to and his The impact of a person’s detention on his or her family depends on a rent was in arrears. number of factors. These include the detainee’s employment status at the time of detention, the size of the had to live separately from his wife family—if any—dependent on the and child for three months, while his detainee, and the ability of the extend- father-in-law was given hostel accom- ed family and/or the state to take modation. The mental strain of the sit- over the responsibilities to care for uation caused the defendant’s wife to that family. suffer a nervous breakdown and so A book on the English bail system, disturbed his son that he had to be Bail or Custody, provides an example given psychiatric treatment. The of the impact pretrial detention has on defendant found it difficult to get work a detainee and his family, which is and could not obtain unemployment symbolic of the far-reaching impact benefits because he was awaiting detention can have.47 The example is trial and was therefore not, according about a defendant who was a 29-year- to the local labor bureau, available old truck driver living with his wife, for work. Four months after his arrest the defendant was tried and acquitted. his retired-father-in-law, and an eight- Over a year later the defendant and year-old son in a council house. his wife still lived in temporary accom- He was arrested and charged in con- modation, the father-in-law was still nection with a robbery that had living in a hostel, and the defendant’s allegedly been planned in his house. son was still receiving psychiatric The police successfully opposed bail. treatment. Altogether the defendant appeared

Justice Initiative 21 Pretrial Detention

The Impact of Detention on Children tainty in a child’s life. Children may Little research has been undertaken to also react to the stigma of having explore how parental detention affects a parent in detention with feelings minor children and what its conse- of shame and a loss of self-esteem. quences are for their development. These consequences are exacerbated A few studies have found that children by the fact that many children of of incarcerated parents are “more detained parents live in debilitating likely to exhibit low self-esteem, circumstances to begin with, often depression, emotional withdrawal coming from poor, marginalized from friends and family, and inappro- communities.49 priate or disruptive behavior at home Children whose mothers are and in school . . . [and are] at high risk detained have been identified as “among the riskiest of the high risk children.”50 In a review of the litera- Detention, like incarceration, ture on children whose mothers are detained or imprisoned, it was found disproportionately affects individuals that such “children’s lives are greatly and families living in poverty. disrupted when mothers are arrested, and most children show emotional and behavioral problems. . . experiencing internalizing (fear, withdrawal, depression, emotional disturbance) for future delinquency and/or crimi- and externalizing (anger, fighting, 48 nal behavior.” stealing, substance abuse) problems, A review of the literature on how as well as heightened rates of school children experience the loss of a par- failure and eventual criminal activity ent provides some insight on how chil- and incarceration.”51 dren may experience the detention of a parent, especially if the detention is for The Impact on Family Economy, an extended period of time and results in a significant loss of contact between Especially in Poor Communities the parent and child. The potential Detention, like incarceration, dispro- deleterious effects on such children portionately affects individuals and are numerous. Children experience families living in poverty. When an the loss of a parent—irrespective of income-producing parent is detained, the cause—as a traumatic event. the family must adjust to the loss of Depending on the child’s age, this may that income. The impact can be espe- lead to a child’s inability to form cially severe in poor, developing coun- attachments with others, anger, and tries where the state does not provide antisocial behavior. The trauma of reliable financial assistance to the the loss of a parent can stunt a child’s indigent and where it is not unusual development, especially as detention for one breadwinner to financially can bring about a great deal of uncer- support an extended family network.

22 Open Society Overview

Thus, while there are about two loss of the imprisoned parent’s dependents per working person in the income; legal fees associated with developed world, in the developing legal defense and appeals; and the world the ratio is about one to six.52 In costs of maintaining the household, some particularly impoverished rural maintaining contact during imprison- areas of Africa, dependency ratios in ment, and providing personal items excess of 1:200 have been reported.53 for the prisoner.”55 A hypothetical example from a Prolonged periods of detention poor, rural community in the develop- place considerable strain on intimate ing world reveals the medium- to long- relationships. In a U.S. study of sen- term economic shocks within a household as a result of the detention of one of its members. After the male head of a household is arrested and detained, Detainees infected with a disease while the family must sell its maize-milling incarcerated pose a public health risk machine to obtain cash for his legal fees, bail, and/or money to bribe him to the communities to which they return. out of detention. As the milling machine brought steady income into the household, the sale of working capital means that the family soon tenced offenders, half of married has no money to hire labor or buy male respondents reported that their inputs for their beetroot plots. primary source of emotional support 56 Beetroot production ceases, and so was their wife. The conclusion that does income from the crops. The new “it is not uncommon for marital owner of the milling machine moves it relationships to end in divorce during to a distant location. The absence of a prison term” is likely to apply, the machine is felt by other house- albeit to a somewhat lesser extent, to holds in the village, and women go married persons who spend long periods of time in pretrial detention.57 back to pounding maize, which In England and Wales, almost half increases their workload.54 (48 percent) of all pretrial detainees It stands to reason that a family report losing contact with their fami- experiences financial losses as a result lies while in detention.58 of the detention of one of its members. This is especially the case when the period of detention is long, fami- The Impact on Communities lies maintain regular contact with and Public Health their detained member, and the Once released from prison, detainees detained family member functioned infected with a communicable disease in a responsible parenting role prior while incarcerated pose a public health to the detention. “Families face the risk to the communities to which they

Justice Initiative 23 Pretrial Detention

return. The effect of this on poor In poor communities in the devel- households can be devastating and oping world, where many rely on may impoverish households reliant subsistence agriculture for their on the good health and labor of each survival, the serious illness and inca- of their members. The excessive use pacitation of even one or two adult of pretrial detention in marginalized household members can bring about a communities may also have a broader spiral of poverty as the household is debilitating effect on the social fabric, forced to sell off the few capital assets reducing social capital. it may possess in an effort to obtain medication and professional medical help for the ill. A U.S. study has found that high rates of incarceration including, to a Little research has been undertaken somewhat lesser extent, pretrial detention can have the “unintended conse- to investigate the broader social quence of destabilizing communities impact of excessive pretrial detention and contributing to adverse health 61 on communities and society as a whole. outcomes.” According to the study, rates of sexually transmitted infections (STIs) and teenage pregnancies consistently increased with increasing Detrimental Health Effects imprisonment rates. Moreover, the Detainees infected with HIV/AIDS, population released from incarcera- tuberculosis, or other communicable tion presents an above-average risk diseases are likely to pass these of infecting community members 62 on to their families and communities with an STI. after their release. Given that most persons incarcerated—especially Detrimental Social Effects those who have not been convicted— The U.S. study cited above concludes have a high likelihood of eventually that removals from, and releases being released, the health of detainees to, communities disrupt relationships is a fundamental public health con- and weaken social norms, in that cern. As detailed above, prisons have maintenance of these norms is emerged as structural factors fueling based on long-term relationships. outbreaks of HIV and TB in Eastern In communities where neighbors 59 Europe and Russia. In South Africa, know one another, these individuals where an estimated 40 percent of tend to be involved in each other’s inmates are reported to be HIV lives and the lives of their children, positive, some 25,000 prisoners are offering advice and support. To the released every month. Many of these extent that parenting affects the are former pretrial detainees who have sexual behaviors of teenagers, juve- been granted bail, are acquitted, or niles with a parent who is absent as 60 have had their charges withdrawn. a result of being incarcerated are

24 Open Society Overview

more at risk of behaviors that result the presumption of innocence. That in a sexually transmitted infection is, the right of any defendant to be pre- and/or pregnancy.63 sumed innocent of the allegations Little research has been undertak- against him until found guilty by a en to investigate the broader social competent court. impact of excessive pretrial detention In support of this principle, most on communities and society as a countries have ratified international whole. It is likely, however, that the human rights instruments that nature of the impact is similar to allow the use of pretrial detention only that of mass incarceration as seen in under carefully defined circum- countries such as the United States, Russia, Belarus, Ukraine, or South Africa (all countries with incarceration International human rights rates in excess of 330 per 100,000 of instruments allow pretrial the general population). detention only under When most families in a neighborhood carefully defined circumstances. lose fathers to prison, the distortion of family structure affects relationship norms between men and women as well as between parents and children, stances. Many countries have, more- reshaping family and community across over, embedded the substance of such generations. And, while families in poor international instruments into domes- neighborhoods have traditionally been tic legislation. Yet, a significant num- able to employ extended networks of ber of criminal justice systems rou- kin and friends to weather hard times, tinely contravene international instru- incarceration strains these sustaining ments and their own domestic pretrial relationships, diminishing people’s detention laws and regulations. ability to survive material and emotional difficulties. As a result, incarceration is In theory, judicial officers’ pretrial producing a deep social transformation release/detention decisions are ration- in the families and communities of al because they are based upon prisoners—families and communities, an acquired expertise about risk it should be noted, that are dispropor- factors as they relate to individual tionately poor.64 defendants. The theory has, however, not been substantiated by studies of bail decisions. In fact, in some risk- The Impact on the Rule of Law of-flight studies, similarly situated Protecting the restrictions on the defendants have received significantly use of pretrial detention, as well as different bail decisions. In some the process leading up to a pretrial risk-of-reoffending studies, judicial detention determination, is vital to officers accurately identified potential preserve one of the cornerstones of a reoffending defendants in only 5 per- 65 rights-based criminal justice system: cent to 30 percent of the cases.

Justice Initiative 25 Pretrial Detention

In Harris County, Texas, a report as a sanction or repressive measure: revealed that the excessive use of it serves as a means of coercing a financial bail resulted in the detention confession or as a control of homeless of a large number of defendants persons. who were charged with minor crimes and who posed a low risk for abscond- In practice this leads to a blurring of ing or committing a crime if released the boundaries between pre-trial deten- awaiting trial. In 2003, some 8,700 tion and the sentence of imprisonment. misdemeanor defendants were In other words, the abuse of pre-trial detained despite being classified detention which can also be observed in European countries, whereby a period as “low risk” on a Pretrial Services of pre-trial detention is regarded as a short term of imprisonment served in anticipation, has developed into a strate- Pretrial detention is often used as a gy which is used systematically by the sanction or repressive measure: it serves criminal justice system. Where pre-trial detention is used, overtly or covertly, for as a means of coercing a confession. such purposes it seems fairly clear that the “presumption of innocence”—the idea that a person should be considered Bail Classification score and despite innocent until proven guilty—is being 68 having no prior convictions.66 breached. In a survey of detention decisions between August 2004 and July 2007 In a country visit to the Central in the Mexican city of Monterrey, African Republic in 2000, the Special it was found that virtually all detained Rapporteur on Prisons and defendants resided in metropolitan Conditions of Detention in Africa Monterrey with many being found that while detention immediate- employed. It was also found that half ly after arrest by the police is statutori- of the defendants were over 30 years ly limited to 48 hours, it can “last of age (past the age when persons are for six months without it being taken 69 disproportionately likely to commit into account in sentencing.” In The violent crimes). And, two-thirds of the Gambia, the constitution limits the defendants were first time offenders.67 time period between arrest and a On the face of it, these defendants defendant’s court appearance to 72 posed a low risk of flight, offending hours. At the country’s police head- while awaiting trial, or interfering quarters in Banjul, however, the spe- with the administration of justice. cial rapporteur did not find a single arrestee who had been brought before Debasing the Presumption of Innocence a court within the 72-hour time limit. In fact, some arrestees claimed to have A multi-country study of pretrial been in police detention for a number detention law and practices suggests of months without being remanded that at times pretrial detention is used by a judicial officer.70

26 Open Society Overview

In some countries where pretrial weeks or months in a prison cell; detention is not used sparingly, the detained defendant is less likely as required by international norms, to have character witnesses to use in “the use of force, sometimes amount- mitigation of sentence than the ing to torture, by investigating author- defendant released awaiting trial; ities such as the police is common and a detained defendant may have in order to extract confessions.”71 lost his job or home and consequently may not be considered as The excessive use of pretrial deten- suitable for a suspended sentence, tion also undermines the presumption probation, or a fine.75 By contrast, of innocence in other, less explicit, ways. If a defendant is ordered held in custody, or if money bail is set at an amount the defendant cannot meet, There is empirical evidence showing that several significant consequences may persons in pretrial detention are more like- result: ly to be found guilty than defendants with g There is both British and U.S. similar backgrounds and charges who empirical evidence showing that persons in pretrial detention are have been released awaiting trial. more likely to be found guilty of the offense charged compared to defendants with similar back- released suspects can be in touch grounds and charges who have been with a lawyer relatively easily and 72 released awaiting trial. The defen- can assist in developing a defense to dant who remains in prison may specific charges. They can continue have difficulty participating in his working, paying taxes, and support- own defense. An incarcerated ing their families. They can also defendant cannot look for friendly take steps to reduce the severity of witnesses and may have limited a sentence if they ultimately are contact with a defense lawyer. found guilty by, for example, getting or keeping a job, maintaining or g Defendants detained prior to trial reestablishing family ties, and devel- are more likely to be sentenced to oping a record of complying with prison than are defendants who conditions of release.76 are released prior to trial.73 That is,

the experience of pretrial detention g Defendants held in detention often is known to undermine—through have a heightened incentive to plead loss of employment, accommoda- guilty, even though they may have a tion, family and other community valid defense, simply to gain their ties—defendants’ capacities to pres- freedom—particularly if they can ent themselves in a light favorable receive a sentence of time served or to receiving a noncustodial sen- receive credit for their jail time tence.74 A defendant’s appearance against a relatively short prison and demeanor in court may not sentence. A British study found inspire confidence if he has spent a strong correlation between a

Justice Initiative 27 Pretrial Detention

defendant’s pretrial detention status acquitted. Moreover, about half of all and the likelihood of a guilty plea.77 pretrial detainees receive a noncusto- There may be a number of reasons dial sentence (50 percent for males for this phenomenon. The influence and 59 percent for females in 2002).79 of prison wardens and other In New Zealand, too, about a fifth detainees may help to convince a of all persons who spend some time in defendant that he would regain his pretrial detention end up being acquit- freedom more quickly and perhaps ted of the charges against them, while be treated more lightly if he were half receive a noncustodial sentence.80 prepared to plead guilty. Moreover, Moreover, where custodial sentences long periods of idleness, the tense- are imposed, there is some evidence to suggest that “imprisonment appears at least in some times and Poor people do not have places to be used in order to ‘cover’ pre-trial detention: that is, pre-trial access to private counsel, and detention is retrospectively justified many developing countries lack by imposing a prison sentence.”81 a comprehensive legal aid system. Discrimination against the Poor In many poor countries the formal criminal justice system often fails to provide justice and security to the indi- ness and uncertainty of the situa- gent or protect their rights. According tion, and the relative inaccessibility of reliable legal advice may also to Vivien Stern of the International be contributing factors. It does not Centre for Prison Studies, justice take much to break the spirit of a systems in poor countries exacerbate man who has been kept in a cell the poverty of the destitute “by bearing most of the day, not knowing what down most heavily on them and is going to happen to him. The find- subjecting them to gross injustices, ing of guilt and the passing of a sen- whilst not providing them with the tence do at least bring an element of protection they need.”82 78 certainty into the situation. Pretrial detention regimes can be The loss of liberty, the indignities, particularly discriminatory against the and the other repercussions pretrial indigent. Poor people do not have detainees suffer are particularly egre- access to private counsel, and many gious in light of the fact that a signifi- developing countries lack a compre- cant number of pretrial detainees hensive legal aid system for defen- are either acquitted of the charges dants too poor to afford their own against them or receive a noncustodial lawyers. In countries where a rudi- sentence. In England and Wales, mentary legal aid system operates, for example, approximately one out legal counsel is often provided only at of every five pretrial detainees is the trial stage of legal proceedings, long after a decision has been made

28 Open Society Overview

to detain a defendant awaiting trial. prison system was that “prisoners A United Nations Office on Drugs cannot pay bail or provide any sure- and Crime (UNODC) study of justice ty.”87 In South Africa about a third of system integrity and capacity in three all awaiting trial prisoners who are Nigerian states in 2002 found that 38 granted bail are unable to afford the 88 percent of awaiting trial prisoners had amount set. retained a lawyer and that only around Other conditions pose similar 10 percent of the respondents had problems: for example, defendants are been able to pay their lawyers’ fees often released awaiting trial on the themselves (with the remainder being condition that they report to a police supported by their family or friends, or the government).83 Unlike Nigeria, which has an estimated 28,000 lawyers,84 large parts of Africa face an In South Africa about a third of extreme shortage of legal profession- all awaiting trial prisoners who are als, so that many detainees—especially those in rural areas—are unable granted bail are unable to afford to obtain professional legal services. the amount set. For example, in 2004, the ratio of practicing lawyers to the general population was 300 to 11 million in Malawi, 400 to 26 million in Uganda, and 400 to 35 million in Tanzania.85 Moreover, station on a regular basis. Individuals lawyers in many developing countries without access to private transport, too are concentrated in urban centers, poor to afford the regular use of public transport, or who live in a rural area leaving the rural poor with virtually no far from the nearest police station, access to professional legal representa- find it difficult to meet such a condition. In Sierra Leone, for example, 95 tion. In a survey of rural inhabitants in percent of the country’s 125 lawyers South Africa conducted in the late (serving a population of five million) 1990s, half the respondents indicated are based in the capital, Freetown.86 that they were between 11 and 30 kilo- In cases where pretrial release is meters from the nearest police station, granted with conditions, it is usually with 12 percent being more than 30 the indigent who have the greatest kilometers away. Just six percent of difficulty complying with such condi- the respondents indicated they were tions. This is especially true when the able to drive themselves in private condition is a monetary bail bond. transport to the nearest police station, In many countries defendants are and only 10 percent said they could granted release awaiting trial provided use a commuter bus because of the they deposit a sum of money with limited availability of public transport the court. In Malawi, for example, a in rural areas.89 key reason for overcrowding of the

Justice Initiative 29

Pretrial Detention

Fostering Corruption remand cells in Bangui in the Central In criminal justice systems where African Republic, the special rappor- corruption is pervasive, defendants teur found that “police demanded are likely to be released awaiting trial money [ from the detainees] before 92 only if they have politically powerful release.” In a 2001 report on prisons allies or the means to bribe the arrest- in Malawi, the special rapporteur ing officer, the prosecutor, or the judi- found that “cases of ill-treatment and cial officer dealing with their applica- corruption... do not seem to be isolat- 93 tion for pretrial release. For example, ed cases.” In Benin, a prisoner told the aforementioned 2002 UNODC the special rapporteur: “The main study found that, on average, more problem is the judiciary. [The act of] than 70 percent of lawyers surveyed prosecution in Abomey [a city in in three Nigerian states had paid Benin] has become an avenue for get- bribes in order to expedite court pro- ting money. If you do not have money, 94 ceedings, including the implementa- your case is never examined.” tion of bail orders, the commencement of trial, and speeding up trial The Impact on Good Governance proceedings. While most of these and Development bribes were paid to court staff and The negative impact of corruption on police, a fifth of respondents stated investment has been well document- they also had to make such payments ed. Reports by the United Nations to judges. In systems where judges do Development Programme (UNDP) not have to provide transparent and demonstrate empirically the negative defensible reasons why a defendant is impact of corruption on growth.95 The being detained pending trial, chances World Bank agrees that, by distorting are higher that some judges will the rule of law and weakening the accept bribes to release someone from institutional foundations of economic pretrial custody. More than 40 percent growth, corruption is the single great- of court users surveyed experienced est obstacle to economic and social corruption when seeking access to the development.96 The harmful effects of justice system, with a large proportion corruption are especially severe on the specifically stating that they paid a poor, who are hardest hit by economic bribe to obtain bail.90 According to the decline, are most reliant on the provi- UNODC, “the assessment revealed sion of public services, and are least that in particular the poor and unedu- capable of paying the extra costs asso- cated, as well as ethnic minorities are ciated with bribery and fraud.97 The more likely to be confronted with cor- International Monetary Fund, in turn, ruption… and to experience delays.”91 notes “there is a close association Country reports from the office of between corruption and slow growth, the Special Rapporteur on Prisons and as well as between corruption and Conditions of Detention in Africa are political instability. . .”98 full of examples of corrupt practices The excessive use of pretrial deten- in respect of bail. In a 2000 visit to tion can weaken governance in a num-

30 Open Society Overview

Figure 4: Proportion of pretrial detainees and sentenced prisoners, by Human Development Index ranking, 2006

High 77 % 23 %

Medium 66 % 34 %

Low 58 % 42 %

0 20 % 40 % 60 % 80 % 100 %

Sentenced PTD

Source: World Prison Population List, International Centre for Prison Studies; UNDP.

ber of ways. As discussed above, Governance and Detention unwarranted or discriminatory pretri- The proportion of pretrial detainees al detention undermines the rule of also varies by level of economic and law and honest and accountable gov- human development. Countries with ernment by fostering corruption. a higher level of human development Pretrial detention can also weaken have, on average, a lower proportion good governance by increasing— of their total prison population in rather than reducing—crime and pretrial detention. As Figure 4 above by consuming scarce resources that shows, countries with a high score in the UNDP Human Development could, from a development perspec- Index (HDI) tend to have a lower tive, be spent more productively on proportion of prisoners in pretrial education, health care, or infrastruc- detention.99 A similar study conducted ture improvement. Moreover, while in the late 1990s, whereby countries pretrial detention can in certain cir- were classified as “industrial,” “devel- cumstances impede aspects of good oping,” and “less developed” reveals a governance, the reverse can hold similar pattern. Industrial countries true as well. That is, badly governed had, on average, a relatively low pro- states with poor systems of public portion of prisoners who were pretrial administration tend to have prisons detainees; less developed countries that are disproportionately filled with had a high proportion.100 pretrial detainees.

Justice Initiative 31 Pretrial Detention

It is possible to proffer a number conditions that existed in various of explanations for the inverse correla- prisons, it was found that prisoners tion between development and the faced “overwhelming positive rein- ratio of pretrial detainees to sentenced forcement” by the peer group for prisoners. Richer, more developed a variety of antisocial behaviors, so countries have the resources to much so that even staff interacted with employ sufficient numbers of police the inmates in a way that promoted officers, prosecutors, and judges to a criminal environment.102 undertake criminal investigations and As is the case with sentenced pris- trials relatively speedily. Such coun- oners, pretrial detainees invariably tries also have the skills and resources face similar crimogenic influences, to develop credible and effective alter- especially if detained for extended natives to pretrial detention. Moreover, periods under crowded and poor con- wealthier countries with good institu- ditions. The risk is greater in places tions of higher learning have a higher where sentenced and unsentenced density of lawyers who can provide prisoners are not separated, or where legal assistance to arrestees and there- pretrial detainees charged with minor by minimize the number of persons offenses are incarcerated together with who are placed in pretrial detention detainees suspected of having com- on trivial or unfounded grounds. mitted serious crimes—not uncommon scenarios in many overcrowded prison systems around the world. Promoting Crime A U.S. study has shown that once The excessive and arbitrary use of juveniles are detained awaiting trial, pretrial detention may bring about even when controlling for prior offens- conditions that increase the number es, they are more likely than nonde- of potential offenders in a society. tained juveniles charged with a crime There is significant evidence to show to engage in future delinquent behav- that the prison environment fosters ior, with the “detention experience criminal behavior. That is, an unin- increasing the odds that the youth tended by-product of prisons is that will recidivate.”103 Moreover, juvenile they serve as schools or breeding detention interrupts young people’s 101 grounds for crime. Prisons psycho- education, making it more difficult for logically harm inmates, making their some to return to school and find adjustment to society upon release employment. Indeed, “economists more difficult, with one likely conse- have shown that the process of incar- quence being a return to crime. cerating youth will reduce their future Much of the literature on the effects of earnings and their ability to remain incarceration argues that the confined in the workforce, and could change spaces of prisons reinforce certain formerly detained youth into less sta- forms of negative behavior. For exam- ble employees.”104 The failure of ple, by examining the social learning detained juveniles to return to school

32 Open Society Overview

affects public safety as, according to such as South Africa, this entails a the U.S. Department of Education, significant opportunity cost in terms school dropouts are three and a half of state spending forgone elsewhere. times more likely than high school For example, an additional R10 billion graduates to be arrested.105 would permit the South African treasury to more than double its health- Opportunity Cost of Pretrial Detention related expenditure or double its expenditure on social development Detaining people is an expensive and the provision of housing.108 undertaking for most states, especially for developing countries. For poor In 2004, the annual cost to the countries, where state budgets are U.S. federal government of incarcerat- rarely balanced and state funding to meet even the basic needs of all citi- States that spend large sums of money zens is inadequate, expenditure on incarcerating pretrial detainees repre- on incarceration in an effort to promote sents a stark opportunity cost. Every public security could arguably use some bit of state revenue spent on incarceration results in potentially less money of that money more effectively on crime for crucial social services, health, prevention activities. housing, and education. Moreover, states that spend large sums of money on incarceration in an effort to pro- ing one person was just over mote public security could arguably US$23,000 per year.109 The cost of use some of that money more effec- 106 keeping one juvenile in a state-level tively on crime prevention activities. pretrial detention center in the United Alternatively, money spent on pretrial States is even higher, ranging from detention could also be redirected to US$32,000 to US$65,000 per year.110 state functions that directly promote In Australia, the state spends approxi- public security, such as employing mately AU$60,000 per prisoner more police officers or purchasing per year.111 equipment that allows the police According to a 2003 European to function more effectively, such as Commission investigation, the aver- vehicles or automated fingerprint age monthly cost of incarcerating identification systems. pretrial detainees in 10 European The total budget of the South Union member states for which data African Department of Correctional are available was e3,079 per month.112 Services for the 2005–06 financial Extrapolated over Europe’s 376,000 year amounts to R9.2 billion and pretrial detainees in 2006, this comes is estimated to top R10 billion per to an annual cost of e13.9 billion. annum thereafter.107 Even for a rela- There were 104 countries in the world tively prosperous African country

Justice Initiative 33 Pretrial Detention

Figure 5: European expenditure on pretrial detention compared to selected global humanitarian, health, and governance expenditures

Annual PTD costs to 18.3 European States (2005)

Cost of feeding 90m people 9.5 for one year (2003)

Global Fund disburse- 3.3 ments (2002-2006)

WHO biennial budget 3.3 (2006-2007)

UN budget (2006) 1.9

0 4 8 12 16 20

US $ billions

Sources: European Commission; World Food Organization; Global Fund to Fight AIDS, Tuberculosis and Malaria; WHO; UN.

with a Gross Domestic Product (GDP) 2006–07 budget of the World Health less than this in 2005, according to Organization (WHO), and the UN’s the World Bank.113 By reducing their 2006 budget (Figure 5). Even where estimated annual expenditure on moneys saved from avoiding excessive pretrial detention by just over 10 pretrial detention will not translate percent, European countries could into additional expenditures for AIDS save enough money effectively to prevention, housing, or other social double the annual budget of the programs, savings in this area could, 114 United Nations. By reducing their at least, translate into lower taxation pretrial detention expenditure by just rates for the benefit of all citizens. under 20 percent in 2003, they could have saved enough money to double Mutually Reinforcing the worldwide disbursements of the Global Fund to Fight AIDS, Consequences of Detention Tuberculosis and Malaria between The consequences of pretrial deten- 2002 and 2006.115 The estimated 2005 tion are many. This paper has sought expenditure on pretrial detention by to categorize these consequences to European states is slightly more than show how the collateral damage of the combined cost to the World Food pretrial detention affects not only Organization to feed 90 million peo- the detainees themselves but also their ple for one year, the Global Fund’s families, communities, and broader 2002–06 disbursements, the biennial society, as well as the rule of law and

34 Open Society Overview

good governance. Such categorization further impoverishes particularly poor makes for easier reading, but it under- and marginalized communities. states the pervasiveness of the general- Some of the more far-reaching ly debilitating impact of excessive opportunity costs of pretrial detention use of pretrial detention. The harm are also difficult to measure and con- done by pretrial detention in all these sequently fail to receive the attention categories together is greater than the they deserve from policymakers. sum of their parts. This is because By reducing the number of pretrial these categories are not mutually detainees by a few percentage points exclusive but overlap and merge into most countries would save enough one another. money to build new schools or pay for The detainee infected with TB or HIV/AIDS while incarcerated has to live—or die—with a debilitating ill- By reducing the number of pretrial ness. Upon release from detention that detainee places family, friends, detainees, most countries would save and acquaintances at similar risk, and enough money to build new schools. these persons in turn expose other members in the community. In poor countries, detainees infected with a lifelong and debilitating illness risk the tertiary education of numerous impoverishing the households to young people otherwise too poor to which they return. In developed coun- afford the cost of a university educa- tries, health-related costs are passed tion. A more educated workforce— on to the state. especially in developing countries Detaining a large group of people where teachers, engineers, and doc- is not only costly for the state (and, tors are in short supply—is bound to thereby, the taxpayer) but has negative generate a better return on such an financial and social repercussions investment from an economic, social, for society at large. Pretrial detainees or political perspective than keeping are unable to earn an income, pay more people in pretrial detention. taxes, and provide food or other neces- Other consequences of pretrial sities for their families. In many poor detention are almost impossible to countries, detainees’ families suffer quantify yet are acutely debilitating a double burden. Not only do they to both citizens and the institutions have to forgo the support they may of the state. As discussed above, in have received from the detainee, they a number of countries pretrial deten- often have to provide food, clothing, tion is abused as a mechanism to and other necessities of life to the extort bribes from detainees and their detainee because the prison system families. In other places, detention fails to do so. The widespread use abets corruption as arrestees seek to of pretrial detention consequently bribe poorly paid police officers and

Justice Initiative 35 Pretrial Detention

prosecutors not to request their deten- human rights lawyers and activists. tion at the first court hearing after their As pointed out above, however, the arrest. Corruption destroys citizen consequences of a dysfunctional and trust in government and undermines unjust pretrial detention regime government legitimacy. Corruption should be of concern to everyone and also exacerbates poverty, deters foreign not only this small group of people. investment, stifles economic growth This paper has sought to demonstrate and sustainable development, and that the functioning of a country’s undermines legal and judicial systems. pretrial detention system is of relevance Moreover, by corrupting the adminis- to all persons interested in sound tration of justice and undermining the governance, good health, public safety, rule of law, the irrational and excessive and strong families and communities. application of pretrial detention weak- The pervasive impact and perverse ens governance overall.116 consequences of pretrial detention are The reform of pretrial detention— such that its reform should not be the including the extent of its use, the purview of a few professional groups manner and criteria governing its and criminal justice reformers. The application, and the conditions of time has come for a broader audience detention—remains an important of experts and interested persons to goal for many criminal justice policy engage in this important task. makers and practitioners, as well as

Notes

Martin Schönteich is senior legal officer for National Criminal Justice Reform at the Open Society Justice Initiative.The author acknowledges the assistance of Denise Tomasini-Joshi and Todd Foglesong for reviewing and commenting on an earlier draft of this paper, and of Peter Rowland for helping with the collection and cross-tabulation of some of the statistical data used in this paper.

1. Frieder Dünkel and Jon Vagg, eds., Waiting for Trial: International Perspectives on the Use of Pre-Trial Detention and the Rights and Living Conditions of Prisoners Waiting for Trial (Freiburg: Max Planck Institute, 1994), XIII. See also Punishment First Verdict Later: A Review of Conditions for Remand Prisoners in Scotland at the End of the 20th Century (Edinburgh: Scottish Prison Service, 2000), para. 1.19, www.scotland.gov.uk/hmip/docs/pfvl-00.asp, accessed January 8, 2007.

2. “Fact Sheet No. 26” (Geneva: Office of the UN High Commissioner for Human Rights, Working Group on Arbitrary Detention), www.unhchr.ch/html/menu6/2/fs26.htm#A2, accessed May 22, 2007.

3. According to Penal Reform International, “prisoners in pre-trial detention, or on remand, are those who have been detained without a sentence and are awaiting legal proceedings. They are also known as untried or unconvicted prisoners.” See Pre-trial Detention (London: Penal Reform International), www.penalreform.org/pre-trial-detention.html, accessed February 20, 2007.

4. Various international instruments make a distinction between unsentenced and sentenced prisoners, although the line is typically drawn at the point of conviction rather than sentence. The International Declaration of Human Rights states that all “unconvicted” people in custody “…shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons” (Article 10 of the Covenant). European Prison Rule 11(3) makes a distinction between untried, convicted, and sentenced prisoners. It also states that “in principle, untried prisoners shall be detained separately.”

36 Open Society

Case Studies

5. International human rights treaties distinguish between people who have been found guilty, convicted by a court of law, and sentenced to prison and those who have not. Prisoners awaiting trial or the outcome of their trial are regarded differently because the law sees them as innocent until found guilty. International standards mandate the widest possible use of alternatives to pretrial detention, with pretrial detention being used as a means of last resort in criminal proceedings.

6. The Council of Europe classifies prisoners other than those who have received a “final sentence” into three sub-categories: (i) untried prisoners in respect of whom no court decision has been reached; (ii) prisoners convicted but not sentenced; and (iii) sentenced prisoners who have appealed against their sentence or who are within the statutory time limit for doing so. See Marcelo F. Aebi, Council of Europe Annual Penal Statistics (SPACE I), Survey 2004 (Strasbourg, November 7, 2005), 30.

7. See also, Samuel Deltenre and Eric Maes, “Pre-trial detention and the overcrowding of prisons in Belgium. Results from a simulation study into the possible effects of limiting the length of pretrial detention,” European Journal of Crime, Criminal Law and Criminal Justice 12, No. 4 (2004), 8. The authors define pretrial detention as the time before a “definitive conviction… the time before a judgment against which appeal is no longer possible.”

8. While the period between arrest and the first court appearance tends to be short—usually 24 to 72 hours—the first few hours in police custody can be crucial to subsequent decisions concerning charges, pretrial detention, and the outcome of the trial. In this period the suspect is documented, police interrogation begins, and confessions and admissions may be obtained. Moreover, in some countries the period between arrest and the first court appearance may be lengthy. Indications of a problematic practice of arrest and “police detention” in many European countries are given by the reports of the Committee for the Prevention of Torture and Inhuman or Degrading Punishment of the Council of Europe published since 1990. See also Jon Vagg and Frieder Dünkel, “Conclusion,” in Dünkel and Vagg, Waiting for Trial (Max Planck Institute, 1994), 919–926.

9. Like most statistical data, criminal justice statistical data need to be treated with caution. These data are only as reliable as the people who collect them and as accurate as the systems that generate them. This is also the case with prison-related data. Some countries manually collate data on prisoner numbers and related information from every prison into one central database. Others collect data at irregular intervals, while some do not consistently gather any quantitative data at all. Moreover, pretrial detention statistics do not, as a rule, include persons who have been remanded into custody but, because of insufficient prison space, are detained in police holding cells. Criminal suspects are usually held in police cells only for 48 or 72 hours until their first court appearance and thereafter transferred to a prison or detention center. Some developing countries accommodate a considerable number of pretrial detainees in police cells because of a lack of prison space or because the nearest prison is too far removed from the courthouse to justify transporting a detainee between prison and court until the trial has come to an end. Consequently, counting only the number of pretrial detainees in a prison system may substantially undercount their real number in certain places.

10. Roy Walmsley, World Prison Population List, 6th edition (London, International Centre for Prison Studies [ICPS], 2007); World Prison Brief Online (ICPS), www.kcl.ac.uk/depsta/rel/icps/ worldbrief. With the exception of China, all the data used in this paper (for 178 independent countries and dependent territories) have been taken directly from these sources. China does not publish its pretrial detention data. Based on discussions with Chinese lawyers and human rights specialists the author estimates that China had a pretrial detention population of 800,000 in 2006—approximately 34 percent of the total prison population.

11. Generally countries with high rates of pretrial detention also have high overall incarceration rates. For example, the three countries with the highest overall incarceration rates in Africa (South Africa, Botswana, and Swaziland), are also among the top four countries with the highest pretrial detention rate. The United States and Russia—both large countries with unusually high incarceration rates—have pretrial detention rates in excess of 100 per 100,000 of the general population, three to four times the global average. This stands to reason. Criminal justice systems

Justice Initiative 37 Pretrial Detention

that fail to make use of alternatives to pretrial detention are also unlikely to make much use of alternatives to imprisonment as a sentencing option. Punitive criminal justice policies are likely to favor pretrial detention over release on bail, and imprisonment over a noncustodial sentence.

12. World Prison Brief Online (ICPS), www.kcl.ac.uk/depsta/rel/icps/worldbrief/world_brief.html, accessed February 5, 2007.

13. List of countries by population, http://en.wikipedia.org/wiki/List_of_countries_by_population, accessed February 12, 2007.

14. Data obtained from Marcelo F. Aebi, Council of Europe Annual Penal Statistics (SPACE I), Survey 2003 (Strasbourg, September 29, 2004), 20; Marcelo F. Aebi, Council of Europe Annual Penal Statistics (SPACE I), Survey 2004 (Strasbourg, November 7, 2005), 44.

15. Detention Needs Assessment and Baseline Report (Washington, D.C.: Department of Justice, Office of the Federal Detention Trustee, undated), 5–6.

16. The annual admission figures do not relate to the number of individuals but to the number of admissions or entries. That is, the same individual may, for example, enter a pretrial detention center more than once in the same year for different cases. It is probable, however, that over a one-year period the vast majority of admissions comprise distinct individuals. For a detailed explanation of what counts as an admission see Aebi, Council of Europe Annual Penal Statistics (SPACE I), Survey 2003, 5.

17. Accompanying document to the Proposal for a Council Framework Decision on the European supervision order in pre-trial procedures between Member States of the European Union, SEC(2006)1079 (Brussels: European Commission, August 29, 2006), 10–11.

18. Dirk van Zyl Smit, “Report of the Rapporteur General,” in Prison Conditions in Africa: Report of a Pan-African Seminar, Kampala, September 19–21, 1996 (Paris: Penal Reform International[PRI], 1997).

19. Excessive Pretrial Detention (Human Rights Watch [HRW] Prison Project), http://hrw.org/advocacy/prisons/pretrial.htm, accessed February 12, 2007.

20. Calculated on the conservative assumption that the pyramid builders worked an average of eight hours a day. See Stuart Wier, “Recent Pyramid Calculations: Manpower Estimates for Khufu’s Pyramid,” August 1998, http://home.earthlink.net/~swier/pyramid.html, accessed February 15, 2007.

21. Empire State Building Official Internet Site, www.esbnyc.com/tourism/tourism_facts.cfm?CFID=46899, accessed February 15, 2007.

22. Mike Octigan, “Pre-Trial Services: Someone Else’s Agenda?” Probation Journal 49, No. 1 (March 2002), 19.

23. Punishment First Verdict Later (Scottish Prison Service, 2000), Annexure 5, para. 21, www.scotland.gov.uk/hmip/docs/pfvl-00.asp, accessed January 8, 2007.

24. Vivien Stern, Alternatives to prison in developing countries (ICPS and PRI, 1999), 10; see also Michael Wines, “The Forgotten of Africa, Rotting Without Trial in Vile Jails,” New York Times, November 6, 2005.

25. Dünkel and Vagg, Waiting for Trial (Max Planck Institute, 1994), XIV.

26. The Human Rights Watch Global Report on Prisons (New York, HRW, 1992), 3.

27. Ibid., 4.

28. See, Mental Health and Prisons: Information Sheet (Geneva: World Health Organization [WHO], undated).

38 Open Society Overview

29. Ill-Equipped: U.S. Prisons and Offenders with Mental Illness (HRW, 1999), 17–19, www.hrw.org/reports/2003/usa1003/usa1003.pdf, accessed February 27, 2007; Mental Health and Prisons, (WHO, undated), www.who.int/mental_health/policy/mh_in_prison.pdf, accessed February 27, 2007.

30. Aebi, Council of Europe Annual Penal Statistics (SPACE I), Survey 2004, 52. It is likely that the number of prison fatalities falling outside the Council of Europe area is higher but less well recorded. For example, in 1996, 2,531 prisoners died in Kazakhstan, roughly half of them from tuberculosis. At the time Kazakhstan had approximately 85,000 prisoners. The high death rate prompted a government official to defend his country’s death penalty on the grounds that prison conditions were so atrocious that few prisoners would survive a long sentence anyway. See, Prisons in Europe and Central Asia (HRW Prison Project), www.hrw.org/advocacy/prisons/europe.htm, accessed February 15, 2007.

31. Preventing Suicide. A Resource for Prison Officers, WHO/MNH/MBD/00.5 (WHO, 2000), 6.

32. Tonia L. Nicholls, Zina Lee, Raymond R. Corrado, and James R. P. Ogloff, “Women Inmates’ Mental Health Needs: Evidence of the Validity of the Jail Sentencing Screening Tool (JSAT),” International Journal of Forensic Mental Health 3, No. 2 (2004), 168.

33. “Suicides and self-harm,” InnocentUntilProvenGuilty.com, www.innocentuntilprovenguilty.com/keyfacts.html, accessed January 5, 2007.

34. Klaus-Peter Dahle, Johannes C. Lohner, and Norbert Konrad, “Suicide Prevention in Penal Institutions: Validation and Optimization of a Screening Tool for Early Identification of High-Risk Inmates in Pretrial Detention,” International Journal of Forensic Mental Health 4, No. 1 (2005), 53.

35. See, for example, Unjust Deserts: A Thematic Review by HM Chief Inspector of Prisons of the Treatment and Conditions for Unsentenced Prisoners in England and Wales (London: HM Inspectorate of Prisons, December 2000).

36. Carl B. Clements, “Crowded Prisons: A Review of Psychological and Environmental Effects,” Law and Human Behavior 3, No. 3 (1979), 222.

37. Punishment First Verdict Later (Scottish Prison Service, 2000), para. 5.4, www.scotland.gov.uk/hmip/docs/pfvl-00.asp, accessed January 8, 2007.

38. Ibid., Annexure 5, para. 17, www.scotland.gov.uk/hmip/docs/pfvl-00.asp, accessed January 8, 2007.

39. Barry Holman and Jason Ziedenberg, The Dangers of Detention: The Impact of Incarcerating Youth in Detention and Other Secure Facilities (Washington, D.C.: Justice Policy Institute, 2006), 2.

40. Status Paper on Prisons, Drugs and Harm Reduction (WHO: Europe, EUR/05/5049062, May 2005), 3.

41. Tuberculosis in prisons (Ottawa: Public Health Agency of Canada, March 2001), www.phac- aspc.gc.ca/publicat/epiu-aepi/tb/epi0301/prison_e.html, accessed February 17, 2007.

42. Ibid.

43. Richard Coker, Martin McKee, Rifat Atun, Boika Dimitrova, Ekaterina Dodonova, Sergei Kuznetsov, and Francis Drobniewski, “Risk factors for pulmonary tuberculosis in Russia: case-control study,” British Medical Journal 332(7533) (2006), 85.

44. Alessandra Stanley, “Russians Lament the Crime of Punishment,” New York Times, January 8, 1998.

45. “HIV/AIDS and Hepatitis C in Prisons: The Facts,” HIV/AIDS in Prisons 2004/2005 (Canadian HIV/AIDS Legal Network, 2004), 2.

46. “HIV Transmission in Prison,” Ibid., 1.

Justice Initiative 39 Pretrial Detention

47. Michael King, Bail or Custody (London: Cobden Trust, 1973), 79.

48. Jeremy Travis and Michelle Waul, “Prisoners Once Removed: The Children and Families of Prisoners,” in: Jeremy Travis and Michelle Waul, eds., Prisoners Once Removed: The Impact of Incarceration and Reentry on Children, Families and Communities (Washington, D.C.: The Urban Institute Press, 2003), 15.

49. Ibid., 15–17.

50. Barbara J. Myers, Tina M. Smarsh, Kristine Amlund-Hagen and Suzanne Kennon, “Children of Incarcerated Mothers,” Journal of Child and Family Studies 8, No. 1 (1999), 11.

51. Ibid.

52. Sampson Yao Akligoh, The Tax Base and the Dependency Ratio in the Less Developed World, http://economics.about.com/cs/moffattentries/a/tax_base.htm, accessed February 16, 2007.

53. Edward M. Makhanya, Demographic dynamics and sustainable rural development in South Africa (Durban: University of Natal, undated), 15.

54. This example is drawn from the HIV/AIDS literature and, with adjustments, applies equally to a family affected by the absence of one of its senior members as a result of his detention. See Chris Desmond, Karen Michael, and Jeff Gow, The Hidden Battle: HIV/AIDS in the Family and Community (Durban: Health Economics & HIV/AIDS Research Division [HEARD], 2000), 10.

55. Creasie Finney Hairston, “Prisoners and Their Families: Parenting Issues during Incarcera- tion,” in Travis and Waul, Prisoners Once Removed (Urban Institute Press, 2003), 264.

56. Creasie Finney Hairston, “Fathers in Prison,” in Katherine Gabel and Denise Johnston, eds., Children of Incarcerated Parents (New York: Lexington Books, 1995), 31–40.

57. Travis and Waul, “Prisoners Once Removed” in Travis and Waul, Prisoners Once Removed (Urban Institute Press, 2003), 21.

58. “Key Facts and Figures,” InnocentUntilProvenGuilty.com, www.innocentuntilprovenguilty.com/keyfacts.html, accessed January 5, 2007.

59. Anya Sarang, Tim Rhodes, Lucy Playy, Valentina Kirzhanova, Olga Shelkovnikova, Venyamin Volnov, Dmitri Blagovo, and Andrei Rylkov, “Drug injecting and syringes use in the HIV risk environment of Russian penitentiary institutions: qualitative study,” Addiction 101, No. 12 (December 2006), 1787.

60. Annual Report for the Period 1 April 2005 to 31 March 2006 (Cape Town: Judicial Inspectorate of Prisons, 2006), 13.

61. James C. Thomas and Elizabeth Torrone, “Incarceration as Forced Migration: Effects on Selected Community Health Outcomes,” American Journal of Public Health 96, No. 10 (October 2006), 1762.

62. Ibid., 1765.

63. Ibid.

64. Donald Braman, “Families and Incarceration,” in: Marc Mauer and Meda Chesney-Lind, eds., Invisible Punishment: The Collateral Consequences of Mass Imprisonment (New York: The New Press, 2002), 118.

65. Patricia Hassett, “An Expert System for Improving the Pretrial Release/Detention Decision,” Paper delivered at the 6th BILETA Conference (1991), 5.

66. Scott Henson, “Bail blunders boost bulging Harris jail population,” August 13, 2005, http://gritsforbreakfast.blogspot.com/2005/08/bail-blunders-boost-bulging-harris.html, accessed February 16, 2007.

40 Open Society Overview

67. Forthcoming Open Society Justice Initiative / Renace study on pretrial detention practices in Monterrey, Mexico.

68. Vagg and Dünkel, “Conclusion,” in Dünkel and Vagg, Waiting for Trial (Max Planck Institute, 1994), 927.

69. Prof. E.V.O. Dankwa, Special Rapporteur on Prisons and Conditions of Detention in Africa, Prisons in the Central African Republic, Report on a visit June 19–29, 2000 (African Commission on Human and Peoples’ Rights, Series IV, No. 7), 10.

70. Dankwa, Prisons in The Gambia, Report on a visit June 21–26 1999 (African Commission on Human and Peoples’ Rights, Series IV, No. 5), 15–16.

71. Pre-trial detention, Guidance Note 5 (ICPS), www.kcl.ac.uk/depsta/rel/icps/gn5-pre-trial- detention.pdf, accessed December 15, 2006.

72. Clive Davies, “Pre-Trial Imprisonment: A Liverpool Study,” The British Journal of Criminology 11 (January 1971), 32–48; Marian R. Williams, “The Effect of Pretrial Detention on Imprisonment Decisions,” Criminal Justice Review 28, No. 2 (Autumn 2003), 299–316.

73. See, for example, Anne Rankin, “The Effect of Pretrial Detention,” New York University Law Review 39 (1964), 641–655; Michael R. Gottfredson and Don M. Gottfredson, Decision Making in Criminal Justice: Toward a Rational Exercise of Discretion (New York: Plenum Press, 1988); Williams, “The Effect of Pretrial Detention on Imprisonment Decisions,” 299–316.

74. Rod Morgan, “England/Wales,” in Dünkel and Vagg, Waiting for Trial, 198.

75. Michael King, Bail or Custody (London: Cobden Trust, 1973), 75.

76. For a discussion of the financial, social, legal, and psychological costs associated with pretrial detention see Robert E. Fitzgerald and Peter Marshall, Towards a more objective basis for bail decision making, (Canberra: 3rd National Outlook Symposium on Crime in Australia, “Mapping the Boundaries of Australia’s Criminal Justice System,” paper, March 22–23, 1999), 5–7.

77. King, Bail or Custody (Cobden Trust, 1973), 73.

78. Ibid.

79. “Key Facts and Figures,” InnocentUntilProvenGuilty.com, www.innocentuntilprovenguilty.com/keyfacts.html, accessed January 5, 2007.

80. Philip Spier and Barb Lash, Conviction and Sentencing of Offenders in New Zealand: 1994 to 2003 (Wellington: New Zealand Ministry of Justice, 2004), 110.

81. Vagg and Dünkel, “Conclusion,” in Dünkel and Vagg, Waiting for Trial, 927.

82. Vivien Stern, Alternatives to prison in developing countries, (London: International Centre for Prison Studies and Penal Reform International, 1999), 87.

83. Assessment of Justice System Integrity and Capacity in Three Nigerian States (Vienna: United Nations Office on Drugs and Crime, technical research report, final draft, May 2004), 76–77, www.unodc.org/pdf/crime/corruption/Justice_Sector_Assessment_2004.pdf, accessed December 13, 2006.

84. Advocates Africa, www.advocatesinternational.org/pages/global/africa/nigeria.php, accessed December 15, 2006.

85. “Diagram of Problems” (Lilongwe: PRI Malawi, Conference on Legal Aid in Criminal Justice: The Role of Lawyers and Non-lawyers and other Service Providers in Africa, 2004), www.penalreform.org/download/Comment%20on%20the%20diagram%20of %20problemsENGL.pdf, accessed January 10, 2007.

Justice Initiative 41 Pretrial Detention

86. Estimate of the State Counsel in the Law Officers Department in Freetown, November 2003, as cited in Paul James-Allen, “Accessing Justice in Rural Sierra Leone—A Civil Society Response,” Justice Initiatives (February 2004), 57.

87. Prisons in Malawi, “Report on a visit 17–28 June 2001, by Dr. Vera Mlangazuwa Chirwa, Special Rapporteur on Prisons and Conditions of Detention in Africa” (African Commission on Human and Peoples’ Rights, Series IV, No. 9), 34.

88. Gideon Morris, Director, Judicial Inspectorate of Prisons, personal communication, January 18, 2006.

89. Antoinette Louw, Eric Pelser and Sipho Ntuli, “Poor Safety: Crime and Policing in South Africa’s Rural Areas,” ISS Monograph Series, No. 47 (May 2000).

90. Assessment of Justice System Integrity and Capacity in Three Nigerian States, Technical research report, final draft (Vienna: United Nations Office on Drugs and Crime [UNODC], May 2004), 112–116, www.unodc.org/pdf/crime/corruption/Justice_Sector_Assessment_2004.pdf, accessed December 12, 2006.

91. Draft project idea: Strengthening judicial integrity & capacity, Phase II (UNODC [undated]), www.unodc.org/pdf/crime/corruption/corruption_project_nigeria_judicial_integrity_draft.pdf, accessed January 10, 2007.

92. Prof. E.V.O. Dankwa, Prisons in the Central African Republic, Report on a visit by Special Rapporteur on Prisons and Conditions of Detention in Africa, June 19–29, 2000 (African Commission on Human and Peoples’ Rights, Series IV, No. 7), 7.

93. Dr. Vera Mlangazuwa Chirwa, Prisons in Malawi, Report on a visit by Special Rapporteur on Prisons and Conditions of Detention in Africa, June 17–28, 2001 (African Commission on Human and Peoples’ Rights, Series IV, No. 9), 39.

94. Prof. E.V.O. Dankwa, Prisons in Benin, Report on a visit by Special Rapporteur on Prisons and Conditions of Detention in Africa, August 23–31, 1999 (African Commission on Human and Peoples’ Rights, Series IV, No. 6), 20.

95. Corruption and Good Governance, Discussion Paper 3 (New York: UNDP, July 1997), 35–39.

96. Anticorruption (Washington, D.C.: World Bank), http://www1.worldbank.org/publicsector/anticorrupt/index.cfm, accessed February 27, 2007.

97. Crime and Development in Africa (Vienna: UNODC, June 2005), 81.

98. Paolo Mauro, “The persistence of corruption and slow economic growth,” IMF Staff Papers 51, No. 1 (2004), 16.

99. The HDI measures the average achievements in a country in three basic dimensions of human development, namely: life expectancy; literacy rate and school enrolment; and standard of living in economic terms. See Human Development Reports (UNDP), http://hdr.undp.org/, accessed February 17, 2007.

100. Graeme Newman, ed., Global Report on Crime and Justice (New York: Oxford University Press, 1999), 103.

101. For a review of the literature, see Paul Gendreau, Claire Goggin, and Francis T. Cullen, The Effects of Prison Sentences on Recidivism (Ottawa: Solicitor General Canada, 1999), www.prisonpol- icy.org/scans/e199912.htm, accessed February 15, 2007; see also Dorothy R. Jaman, Robert M. Dickover, and Lawrence A. Bennett, “Parole outcome as a function of time served,” British Journal of Criminology 12, No. 1 (January 1972), 7.

102. L. H. Bukstel and P. R. Kilmann, “Psychological effects of imprisonment on confined individuals,” Psychological Bulletin 88, No. 2 (1980), 472.

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103. Barry Holman and Jason Ziedenberg, The Dangers of Detention: The Impact of Incarcerating Youth in Detention and Other Secure Facilities (Washington, D.C.: Justice Policy Institute, 2006), 3.

104. Ibid., 2.

105. Ibid., 9.

106. See John Chisholm, “Benefit-Cost Analysis and Crime Prevention,” Trends & Issues in Crime and Criminal Justice, No. 147 (February 2000), Australian Institute of Criminology, http://aic.gov.au/publications/tandi/ti147.pdf, accessed February 27, 2007; Irvin Waller and Daniel Sansfaçon, “Investing Wisely in Crime Prevention: International Experiences,” Bureau of Justice Assistance Monograph, Crime Prevention Series No. 1 (September 2000).

107. Annual Report for the Period 1 April 2004 to 31 March 2005 (Cape Town: Judicial Inspectorate of Prisons, 2005), http://judicialinsp.pwv.gov.za/Annualreports/annualreport2005.asp, accessed November 17, 2006. In late 2007, US$1 was equivalent to approximately R7.

108. 2005 Estimates of National Expenditure (Pretoria: National Treasury, 2005), iv, www.treasury.gov.za/documents/budget/2005/ene/overview.pdf, accessed November 17, 2006.

109. “Costs of Incarceration and Supervision,” The Third Branch 36, No. 5 (May 2004), www.uscourts.gov/ttb/may04ttb/costs/index.html, accessed February 21, 2007.

110. Holman and Ziedenberg, The Dangers of Detention, 10.

111. Australian Crime Facts & Figures 2005 (Canberra: Australian Institute of Criminology, 2006), 104. In late 2007, US$1 was equivalent to approximately AU$1.2.

112. Accompanying document to the Proposal for a Council Framework Decision on the European supervision order in pre-trial procedures between Member States of the European Union, SEC(2006)1079 (Brussels; European Commission, August 29, 2006), 13. The cost ranges from a high of e6,344 per month in Ireland to a low of e264 per month in Latvia.

113. Total GDP 2005, World Development Indicators database (World Bank, July 1, 2006), http://siteresources.worldbank.org/DATASTATISTICS/Resources/GDP.pdf, accessed February 20, 2007.

114. The 2006 UN budget was US$1.9 billion (e1.5 billion). See All about the United Nations Budget (UNA-USA fact sheet, June 2006), www.unausa.org/site/pp.asp?c=fvKRI8MPJpF&b=1813833, accessed February 20, 2007.

115. Between 2002 and 2006 the Global Fund disbursed US$3.34 billion. See Current Grant Commitments and Disbursements, The Global Fund to Fight AIDS, Tuberculosis and Malaria, www.theglobalfund.org/en/funds_raised/commitments, accessed February 20, 2007.

116. For an exposition of how well-functioning legal institutions and government by the rule of law are vital to good governance, which, in turn, is a precondition for sustainable development, see Sachiko Morita and Durwood Zaelke, “Rule of Law, Good Governance and Sustainable Development,” Conference proceedings, Volume I (Marrakech, Morocco: International Network for Environmental Compliance and Enforcement [INECE], Seventh International Conference on Environmental Compliance and Enforcement, April 9–15, 2005), 15.

Justice Initiative 43 Pretrial Detention

Boomerang: Seeking to Reform Pretrial Detention Practices in Chile

Pretrial detention reform efforts are pone the introduction, originally often derided as “soft on crime.” scheduled for December 2004. Verónica Venegas and Luis Vial report But concerns about crime in the from Chile, where such criticism led to capital of Chile dogged the reform a counterreform—even before the ini- process, and in mid-2003—that is, tial reform could be fully implemented. nearly two years before the reforms In December 2000, Chile began were implemented in Santiago—a implementing a new system of crimi- diverse set of interests initiated a com- nal procedure. From an antiquated, prehensive review and revision of the inquisitorial, and written procedure, new justice system. Both the ruling the country moved to a modern, adver- coalition government that had initially sarial, and oral system administered endorsed the reforms and the political by newly established public institu- opposition agreed to form an experts’ tions such as the National Prosecution commission whose mandate was to Service and the Office of Public evaluate the new system’s weaknesses Defenders. Broad revisions to the and propose courses of action to rules governing pretrial detention address them, including legislative were a central component of this changes. transformation, which was widely rec- Driven by the results of the com- ognized as the most revolutionary mission’s report and perceptions of change in the country’s legal system the new system’s inadequacies, the since the 19th century. government elaborated a legal coun- Due to the size and scope of the terreform measure, sent it to congress, changes, the reforms were imple- and, in November 2005, promulgated mented gradually and divided into five several important changes to the stages. Each stage rolled out the new newly enacted Criminal Procedural system in two or three of the nation’s Code (CPC). Thus the counterreforms 13 administrative regions. In June followed just months after implemen- 2005, the reform program reached the tation of the reform itself. Santiago Metropolitan Region, home The counterreforms proposed by to a third of the national population the commission substantially changed and nearly half of all recorded crime in the rules governing pretrial deten- the country. Anxiety about the way the tion—again. Several of these changes, new justice system would operate in as described in this report, made the capital and most populous region it easier for prosecutors to obtain had caused the government to post- orders of detention from judges.

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Although these changes do not appear the constitutional right to personal to have had a great impact on the freedom legally ended with the act of extent or probability of detention, the formal processing. Not everyone was precedent set by these counterreforms in fact detained, but release before warrants attention. The ease with trial was called “provisional freedom,” which the laws were changed illus- and this “right” to be released was trates the vulnerability of reforms actually a privilege that a defendant to perceptions rather than fact, espe- had to request from a judge. cially suspicions that leniency in Second, under the new rules, a criminal justice contributes to crime judge could place a suspect in deten- or hinders its prosecution. tion only after a prosecutor formalized This paper describes the politics behind the reforms and counter- The new CPC introduced the principle reforms. It analyzes the text of the changes in the law as well as the of proportionality, which requires peculiar political alliance necessary to that detention not be ordered when it is support the backlash against reforms. The paper also evaluates the impact of disproportionate to the gravity of the crime. the changes by examining rates of pretrial detention in 2005 and 2006. The paper draws on conversations and charges. This process, called “formal- interviews with senior officers from ization of the investigation,” consists the Public Defender’s Office, the of a formal notice given by the prose- National Prosecution Office, judges, cutor to the defendant at a public hear- and some politicians, as well as ing, stating that he or she is under reviews of press articles and legisla- investigation for a specific crime. tors’ debates on the process of chang- Whereas in the old system, no special ing the CPC. hearing was required for detention, the new code mandates that the defen- The Initial Reforms dant be assisted by his or her lawyer at The new CPC introduced four main any hearing in which the prosecutor innovations to the rules governing asks for detention. pretrial detention. First, the code Third, the CPC introduced the explicitly incorporated the presump- principle of proportionality, which tion of innocence (Article 4) and stated requires that detention not be ordered that pretrial detention is now “an when it is disproportionate to the grav- exceptional measure” and not the ity of the crime, the circumstances of rule.1 In the old CPC, which did not its execution, and the likely penalty contain a presumption of innocence, upon conviction. Article 141, which detention was the rule, the default declared this principle, also outlined a “measure of restraint” that followed series of circumstances in which the formalization of charges against detention was not permitted. the defendant. Under the old system, Fourth, the CPC also encouraged

Justice Initiative 45 Pretrial Detention

the use of new, noncustodial forms of not sound enough to allow a before- restraint that are less onerous than and-after study of the impact of the detention and yet can be ordered only new CPC on the frequency of pretrial by a judge upon request from the pros- detention. Nor is that the purpose of ecutor. These new measures of this report; instead, it will focus on the restraint include: house confinement, changes in rules and perceptions regular meetings with the prosecutor, about detention after the reforms were prohibition against approaching the introduced.) victim, travel restrictions, and others. These four changes expressed a The Counterreforms very clear preference for using deten- The counterreform legislation tion sparingly. They followed closely approved in November 2005 signifi- the message of President Eduardo cantly altered the rules governing Frei, who, upon introducing the draft detention. The measure introduced CPC in 1995, emphasized reducing three main changes whose primary the use of all types of coercion in crim- effects were to expand judicial discre- inal justice. In Frei’s words: tion in granting a request for detention, emphasize the safety of the In the five years between 1987 and victim and society as a ground for 1991—a period which covers various dif- all forms of restraint, and weaken ferent governments—the average pro- the proportionality principle. These portion of the number of cases filed in changes were achieved through the the courts to the number of arrests was elimination of Article 141’s general 60.6 percent; thus, the 40 percent of the total number of persons arrested in statement and two clauses forbidding Chile—an annual average of 750,000 pretrial detention for minor offenses persons—are deprived of their liberty, and offenses that qualified for a non- albeit for a short period, without enter- custodial sentence. ing the jurisdictional system.2 This strengthening of the judge’s discretionary power was achieved in Frei did not report the total volume an artful way: Article 139 was amended of pretrial detention in his speech, and to give judges the power to determine there was no solid data on which to if noncustodial measures were enough judge its frequency. Researchers criti- to ensure that the defendant appeared cal of government practices had limit- for trial.5 Previously, Article 139 did ed access to official data and often had not assign that power to anyone in to base their conclusions on small particular, thus giving all justice samples and direct observation.3 Only system actors shared responsibility for later were two scholars able to use old the final decision, based on the debate government reports to estimate that, produced during the hearing. in 1998—that is, before the reforms— The counterreforms were intro- 32 percent of all defendants in Chile duced despite scant evidence that were tried while held in pretrial deten- judges were favoring defendants or tion.4 (Unfortunately, this finding is otherwise making bad decisions about

46 Open Society Case Studies

pretrial detention. Virtually no empiri- was not shared by all and was least cal support for the counterreforms embraced by conservative politicians. was produced, and there was no pro- This tension is seen in remarks jection of their likely cost or effect. made by the right-wing legislator Juan So, what made the government and Antonio Coloma in a 1998 debate congress modify a set of rules before regarding the new CPC. He asserted they were even fully enacted? What that there was no need to enforce economic and political considerations the code’s spirit, which stresses drove this process? individual freedom, and proposed not limiting protective custody as a tool The Unstable Coalition for controlling crime.6 behind the Reforms The adoption of the new CPC in 2000, and in particular its progressive rules The counterreforms were introduced despite of pretrial detention, was the result scant evidence that judges were favoring of a combination of pragmatic and principled goals. First, there was a defendants or otherwise making bad clear intention to bring criminal jus- decisions about pretrial detention. tice, which had been abused by the old regime, into line with constitutional and international standards, especially regarding the presumption of inno- The tension between support cence. Second, there was a desire to for efficiency and support for human alleviate the problems of overcrowded rights became clear as the new system jails, especially those with many was implemented. When judges unsentenced inmates. This latter granted defendants new forms of objective was closely tied to another restraint short of pretrial detention, set of broadly shared goals: making these decisions were quickly held the new system more efficient and up by mainstream media as evidence successful in resolving criminal cases. of the failure of the new system, which The extremely slow criminal process was derided as weak and soft on in the old system—which gave citi- criminals. Many politicians, particu- zens the notion that the whole justice larly from the right wing, began to use system was both unfair and ineffi- this supposed weakness of the system cient—was a concern for everyone. as a political tool against the govern- There was less agreement about ment, saying that the system was the principles behind the reforms than flawed and that the governing coali- there was about its pragmatic objection had abdicated its responsibilities tives. The goal of modernizing the sys- in the fight against crime. tem to make it efficient was strongly This debate grew stronger leading agreed upon by all actors. The goal of up to the presidential and parliamen- embracing international human rights tary elections of 2005. One of the standards for defendants, by contrast, candidates from the right wing,

Justice Initiative 47 Pretrial Detention

Sebastián Piñera, harshly criticized appropriated by the government, too. judges for releasing defendants who Instead of strong statements in had pleaded guilty.7 Joaquín Lavín, defense of constitutional principles, another right-wing candidate, criti- officials talked about being “soft” on cized the governing coalition’s candi- criminals and of a supposedly “revolv- date, saying “Criminals prefer to vote ing door” for offenders. for Michelle Bachelet because they By itself, this conservative com- know she is going to have the same plaint about excessive due process 8 weak hand as President Lagos does.” would not have been likely to upend These charges were issued after the reforms. Many criminal justice Bachelet, who is Chile’s current presi- reform efforts founder when counter- dent, declared, “If someone breaks the reformers find an accomplice inside the bureaucracy itself.11 But in Chile, the counterreformers found an ally, Ironically, the initial consensus in favor paradoxically, in the academic circles that had been most responsible for the of the reforms was so strong that virtually democratic reforms in the first place. no debate preceded their passage. Several prominent scholars who were the brains behind the new criminal procedure, and who strongly believed in the virtue of a balance law for the first time, OK, we are going between efficiency and respect for to give him an opportunity, but if he rights in the adversarial system, began does it again, he will lose the benefit of to pull back in their support of the his right to provisional freedom.”9 CPC. These scholars took a pragmatic At the electoral debate grew hotter, position when confronting the wave the public’s fear of crime increased. of criticism against the new system. This sense of insecurity became They argued that in order to protect common in Chile in the early 1990s the whole reform from a major set- and is widely held today.10 An alarmist back that would roll back the new discourse on crime and public safety rules, a sacrifice had to be made in emerged from the political opposition, favor of rules that would, for example, which had not been in power since limit a judge’s discretion in dealing Chile returned to democratic rule with defendants. in 1989 and thus needed grounds to The counterreform movement also criticize the government’s perform- benefited from the postponement ance. of the introduction of the reforms Ironically, the initial consensus in Santiago. The original timeline in favor of the reforms was so strong called for the new system to enter into that virtually no debate preceded their force in the Metropolitan Region passage. But once right-wing politi- in December 2004. By early 2003, cians began to attack the reforms, this however, government officials were nervous discourse on public safety was acknowledging that this timeline

48 Open Society Case Studies

was unrealistic because the necessary actors engaged in the new system’s infrastructure (e.g., buildings, com- functioning, including the heads of munication systems, staff training) the Prosecutor’s Office, the National was not in place. Thus, government Public Defender’s Office, the judiciary, negotiations with the political opposi- the police, and the Ministry of Justice. tion led to a law authorizing a later The third stage included the commis- launch of the reforms in Santiago. sion’s internal debate, in which differ- At that point, all political actors, ent members presented their propos- including the government, agreed to als to the group. The commission form an experts’ commission that agreed to adopt its final conclusions would evaluate the new system, identi- based on consensus, even though fy its main faults, and propose meas- some members brought openly stated biases to the process. ures to correct them. The formation of the experts’ commission was a victory for the counterreformers: the specific goals and content of the The absence of reliable empirical informa- evaluation were strongly influenced tion about the extent of pretrial detention by their critical views of the system, particularly its approach to defen- abetted the counterreform movement. dants’ rights. Additionally, most of the members appointed to the commission were scholars with views critical There was genuine consensus of the new system.12 within the commission on a number Another factor that abetted the of issues. Of the five matters it counterreform movement was the addressed, disagreement arose only absence of reliable empirical informa- about the rules governing pretrial tion about the extent of pretrial deten- detention. But the disagreement was tion and the alleged permissiveness complex, and the resulting findings of judges. Neither the Ministry of and recommendations require close Justice, which was ostensibly responsi- examination. ble for coordinating the introduction Almost all members of the com- of the reforms, nor the Prosecutor’s mission agreed that judges were over- Office or courts measured the extent reliant on Article 141, which articulat- or consequences of pretrial detention ed the proportionality principle and under the new system in a way prohibited detention in cases of pri- that could have fostered informed vate prosecution as well as for offens- debate about it. es that could not be punished by incar- The experts’ commission divided its ceration.13 Members of the commis- work into three stages. The first stage sion considered changes to two of the studied the quantitative and qualitative specific provisions that prohibited data about the existing system. The detention. The first (section “a” of second stage was designed to solicit the Article 141) ruled out detention in opinions of a range of institutional cases where the penalty was lower

Justice Initiative 49 Pretrial Detention

than 541 days of imprisonment. The to a penalty less than 541 days in second provision (section “c”) elimi- prison and who would most likely nated detention in cases where the complete their sentence out of prison. likely penalty would not involve incar- And finally, he argued that, even if the ceration, thus granting immediate alleged problems with detention exist- freedom or noncustodial measures of ed, they did not require a legislative restraint to an enormous number of solution. But behind these academic defendants. The commission mem- arguments lay a more profound politi- bers suggested an exception might be cal disagreement. Bofill believed that made for cases in which “the habitual- exceptions to good rules about deten- ity and repetition of the behavior” war- tion were being proposed because of ranted detention. Here, without explic- concerns about the ability of the jus- itly saying it, the commission of tice system to safely supervise offend- experts was alluding to minor offens- ers not sentenced to prison. In Bofill’s es, such as larcenies, that occupied great attention in the press. words, “defendants must not be made to pay for the failure of the system The disagreements inside the 16 commission were intricate, and at to properly manage the convicted.” least three different positions were expressed.14 One group of scholars Changing the Law proposed eliminating sections “a” and on Detention in Chile “c” from Article 141 as full exclusions The government presented its draft and reinserting them as cases in law to congress in March 2004, which the judge should preferably embracing the more moderate propos- grant alternative forms of restraint al eliminating sections “a” and “c” as unless the facts of the case demand full exclusions and reinserting them granting detention. Another more in the body of Article 141 as cases in conservative group of scholars agreed which the judge should preferably on widening judges’ scope of action grant alternative forms of restraint and recommended that judges decide unless the case demanded granting based on the debate produced at the hearing in each case. They suggested detention. However, after a 19-month the elimination of the part of section process of parliamentary debate, “a” that was problematic (felonies with the final reforms approved by con- penalties lower than 541 days) and the gress differed greatly from those pro- entirety of section “c.” posed by the government. The legisla- Only one scholar, Jorge Bofill, was tive committee in charge of analyzing completely opposed to the proposed the project managed to persuade the amendments, arguing that there was majority of the senate to reform not no empirical basis for the counter- just Article 141 but also Articles 139 reform positions.15 He also claimed and 140, which establish the general there was no good reason for deten- rule of pretrial detention as the most tion of offenders likely to be sentenced exceptional measure of restraint and

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Case Studies

the specific standards that should be justify detention, as Article 19, No. 7, met in order to justify it. which guarantees the right to personal As detailed earlier in this paper, freedom and individual safety, states the change to Article 139 was achieved in section “e” that “provisional free- by making the judge responsible for dom will follow unless arrest or deten- determining the application of pretrial tion is considered by the judge as nec- detention. Previously, the rule had essary for the investigations of the not assigned that task to anyone ‘sumario’17 or for society’s or the in particular. As for Article 141, the victim’s safety.” reforms eliminated both its general statement and sections “a” and “c,” going beyond even the most conservative proposal laid out in the experts’ The counterreformers were primarily commission by abolishing the proportionality principle. interested in scoring political points with In exceeding the recommendation a public alarmed about crime and safety. of the experts’ commission, the legislature overcame significant opposition from the institutions of the justice system. Representatives of these institutions defended the reforms and These arguments highlight the fiercely contested the senate’s propos- need for greater constitutional clarity als for counterreform. In defending in Chile. But the counterreformers’ the reforms, these actors often cited use of these legal arguments was the lack of empirical data showing that misleading; they were primarily inter- counterreforms were necessary. Yet ested in scoring political points with a that very lack of data left the reforms public alarmed about crime and safety. themselves open to attack. Some senators expressed views such Counterreformers also argued as “currently, there are numerous that the reforms were in conflict with recidivist criminals and drug dealers rules established in the constitution. that are left free, despite the effort invested by the police and the prosecu- According to these senators, the CPC 18 set limits for the application of deten- tor’s office,” and “this adjustment is tion that were not present in the considered as necessary at this stage, constitution, which gives the judge given that some judges’ liberality exclusive power to determine the con- stands against our community’s dominant culture, which aspires to see ditions in which detention can be 19 granted. They noted that the constitu- defendants in prison.” These arguments supporting the counterreform tion also does not explicitly recognize were particularly potent because they the proportionality principle or the took place during the year and a half exclusionary hypothesis contained before the national presidential and in Article 141. And they insisted that parliamentary elections. concerns about public safety could

Justice Initiative 51 Pretrial Detention

Figure 1: The Proportion of Defendants Placed in Detention during Ordinary Proceedings, November 2004—November 2006

20% February 2005; 19.0% 18%

16% November 2004; 16.3% November 2006; 14.9% November 2005; 14.1% 14% May 2005; 14.8%

April 2006; 11.9% 12%

10% June 2006; 10.7%

July 2005 July 2006 April 2005May 2005June 2005 April 2006May 2006June 2006 March 2005 March 2006 January 2005ebruary 2005 August 2005 January 2006ebruary 2006 August 2006 F October 2005 F October 2006 NovemberDecember 2004 2004 September 2005 NovemberDecember 2005 2005 September 2006 November 2006

The Impact of the Reforms The counterreforms that changed the institution within the justice system CPC were enacted and enforced manufactures its own records and throughout the country in November monitors its own practices, producing 2005, just a month before the national data that cannot be compared across presidential and parliamentary elec- institutions. In order to assess the tions. Since then, little has changed impact of the counterreform legisla- in the use of the forms of restraint tion on justice practices, the authors of established in the CPC, including pre- this paper had to conduct independent trial detention. research. The data found on the The data available to evaluate frequency of pretrial detention before the impact of these counterreforms and after the counterreforms show is scarce and not suited to comprehen- that little changed. As Figure 1 indi- sive analysis. Indeed, the first thing cates, the proportion of defendants that one observes in studying who were detained in Ordinary the reforms and counterreforms is Proceedings20 varied only slightly in the lack of data available to assess the 12 months following the passage the quality and effectiveness of the of the counterreform legislation. In administration of justice. Today, each May 2005—before the counterreform

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Figure 2: Number of Defendants Charged Each Month in Ordinary and Simplified Proceedings, December 2005—November 2006

14,000

12,000

10,000

8,000

6,000

4,000

2,000

0 DEC JAN FEB MAR APR MAY JUN JUL AUG SEPT OCT NOV Ordinary 8,704 8,741 8,653 10,66011,661 11,661 10,978 11,833 13,240 11,731 12,424 11,756 Simplified 5,810 5,887 5,239 6,312 5,6556,233 5,912 6,399 6,772 5,471 5,080 4,262

Private 109 104 81 115 104126 115 152 195 144 194 165 Prosecution

legislation—14.8 percent of defen- tion changed only slightly. dants were tried while in custody. In This data is good news to those November 2006—a year after the leg- who wish to keep rates of pretrial islation—this figure was 14.9 percent. detention low. Yet the total number This finding is surprising, because of prosecutions has been growing— the counterreforms gave prosecutors with a concomitant increase in the more leeway to use Ordinary total number of pretrial detainees— Proceedings—for which pretrial since passage of the counterreforms. detention can be applied—in cases By June 2006, with the new justice involving minor offenses. As Figure 2 system fully in effect throughout indicates, prosecutors increased the country for more than a year,21 their use of Ordinary Proceedings the total number of defendants placed and decreased the use of Simplified under detention was 15,786 (total Proceedings (for which pretrial deten- in a 12-month period), and by tion is not an option). Yet despite November 2006 that number reached the increased use of Ordinary 16,981. Clearly, the total number of Proceedings, the overall proportion people under pretrial detention has of defendants held in pretrial deten- increased.

Justice Initiative 53 Pretrial Detention

Figure 3: Dispositions of Cases Involving Pretrial Detainees in which Public Defenders Participated

2005 2006 January—December January—December

Percent of Percent of All Pretrial Total All Pretrial Total Disposition Type Detainees Dispositions Detainees Dispositions

Reparation to Victim 1.1% 48,290 0.6% 82,785 Conviction 17.6% 41,475 17.7% 63,194 Acquittal 27.1% 1,682 30.6% 2,084 Sobreseimiento temporal22 10.1% 3,444 5.6% 7,141 Sobreseimiento definitivo 5.9% 9,948 6.0% 15,314 Derivación23 30.1% 6,688 33.2% 10,873 Dismissal by Prosecutor 6.2% 13,892 3.9% 23,233 Fine 1.9% 3,309 1.8% 2,067 Other 0.0% 179 0.6% 174 Total 100.0% 128,907 100.0% 206,865

Another means of analysis is to lack of jail space to hold additional track the percentages of pretrial pretrial detainees and prosecutors’ detainees according to the final dispo- inability to prosecute all felonies, sition of their cases. For example, which leads them to use pretrial deten- Figure 3 highlights the high percent- tion only when absolutely necessary age of pretrial detainees who were (e.g. when the defendant’s freedom acquitted. Another important statistic endangers the investigation). is the proportion of pretrial detainees Also, interviews with the system’s eventually convicted—around 17 per- main actors (prosecutors, defenders, cent. This rate changes little between and judges) suggest they internalized 2005 (most of that year passed before the principles of the reforms, despite the implementation of counterreform the counterreforms’ following so legislation in November 2005) and closely behind. The rise of a new 2006 (after the legislation). However, generation of judges who are strongly the total number of pretrial detainees committed to international human and the total number of all cases esca- rights standards is an additional factor late sharply after the counterreforms. that appears to have affected the data. The frequency of pretrial detention The data examined here do not did not change significantly, despite support sweeping conclusions either the counterreforms. This is probably about new trends in pretrial detention due to several factors, including the or the resiliency of the new system of

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justice in Chile. But it does appear used according to the general princi- that all actors have embraced their ples and rules contained in the new respective roles in the new oral, CPC, which limit its application as adversarial process. On balance, it the most exceptional measure of seems that pretrial detention is being restraint.

Notes

Verónica Venegas and Luis Vial work in Chile’s National Public Defenders Office. They helped the office form a response to the counterreforms described in this paper. This paper reflects their personal views and does not represent the position of the National Public Defenders Office. 1. Original Article 139, paragraph 2, stated: “Pretrial detention will only be used when other measures of personal restraint were insufficient to assure the completion of proceedings” (“La prisión preventiva sólo procederá cuando las demás medidas cautelares personales fueren insuficientes para asegurar las finalidades del procedimiento”). 2. See “Mensaje de S. E. el Presidente de la Republica con el que inicia un proyecto de ley que establece un nuevo código de procedimiento penal,” www ksg.harvard.edu/criminal justice. 3. For an example of this research, see Cristian Riego, La Prisión Preventiva en Chile (1990). 4. Andres Baytelman and Mauricio Duce, Evaluación de la Reforma Procesal Penal (Santiago: 2003), 194. 5. Article 139, paragraph 2, states now: “Pretrial detention will be used when other measures of personal restraint have been deemed by the judge to be insufficient to assure the completion of proceedings and the security of the aggrieved party or of society.” (“La prisión preventiva procederá cuando las demás medidas cautelares personales fueren estimadas por el juez como insuficientes para asegurar las finalidades del procedimiento, la seguridad del ofendido o de la sociedad.”) 6. “In my opinion, this is a Code that goes off the real needs of the country, and places many obstacles to judges, with the aim that a person who is being processed—using the ancient lexicon—may get released before trial. The aim is that the person goes to prison only after being convicted. That is reasonable and rational from a theoretical point of view, but it clashes with a harsh reality that hits millions of Chilean families: the enormous amount of people who break the law—we can check it through the media—while a previous offense is investigated.” Representative Juan Antonio Coloma, Sesion 24, Legislatura 336, 1998 – First Constitutional Procedure for the new Criminal Procedure Code. 7. La Tercera (digital edition) October 9, 2005. 8. La Tercera (digital edition) September 28, 2005. 9. La Tercera (digital edition) September 27, 2005. 10. “UDI representatives, Gonzalo Uriarte and Marcelo Forni called ‘to put and end to the charade about crime’ and to speed four bills that will help to improve criminal justice in the country. The members of parliament reported that during the legislative period 2002–2005 and up to June 2006, a total of 80 bills have been introduced for approval, ‘which would help to reduce people’s fear.’ The representative called on President Michelle Bachelet to stop improvising on this subject, and asked her to label as urgent, ‘…projects such as those which widen the scope for granting pretrial detention, forbid release to dangerous criminals, increase penalties for recidivists, or establish as an aggravation the fact of committing a crime while on release,’” in “80 anti-crime projects lie dormant at the Congress,” La Segunda (digital edition), June 30, 2006. 11. See, for example, David Rothman, Conscience and Convenience: The Asylum and Its Alternatives, (Boston: Little, Brown and Co., 1980).

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12. See, for example, “Diez juristas integran comisión de la reforma,” El Mercurio, October 23, 2003, 1. 13. Article 141 then stated that detention shall not be ordered when it is disproportionate to the gravity of the offense, the circumstances of its commission, and the likely penalty. 14. One member, Gonzalo Vargas, abstained from making any recommendations. See “Documento de la Comisión nombrada para revisar y evaluar la marcha y funcionamiento del nuevo sistema de enjuiciamiento criminal” (Comisión de Expertos Reforma Procesal Penal, December 2003), www.pazciudadana.cl. 15. The judiciary and the Public Defenders Office also believed there was little evidence to support this claim. 16. “Documento de la Comisión . . .” (Comisión de Expertos Reforma Procesal Penal), 50. 17. “Sumario” refers to the first investigative phase of the inquisitorial criminal process, whose main characteristics were that it was conducted by the same judge who would later sentence the case’s defendant, was written, nonadversarial, and kept secret from the case’s actors. 18. “Modifica los Códigos Procesal Penal y Penal en diversas materias relativas al funcionamiento de la Reforma Procesal Penal,” Intervención del Senador Alberto Espina (Informe de Comisión Mixta de Constitución, Legislación, Justicia y Reglamento del 11/05/2005, Boletín 3465-07), 24, http://sil.senado.cl/pags/index.html. 19. Íbid., Intervención del Senador José Antonio Viera-Gallo, 23. 20. Ordinary Proceedings are the only trial mechanism in which a defendant can be placed in pretrial detention. 21. The criminal justice system reform was implemented in five stages, the last of which started in June 2005 in the capital region. 22. Sobreseimiento is a type of judicial resolution that suspends or ends the process for lack of cause. There are usually two types: provisional, which suspends the process for some legally predetermined reason; and definitive, which ends the judicial proceeding. 23. Cases referred to a mediator, or a juvenile or other court.

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Catalyst for Change: The Effect of Prison Visits on Pretrial Detention in India

Criminal justice reform can be daunt- tutions cloak their operations under ingly complex work. But as R.K. Saxena the guise of security. The impregnable explains, a relatively simple program in walls of prisons, combined with the India succeeded in reducing the pretri- outside community’s indifference al detainee population. toward inmates, make prisons a fertile breeding ground for human rights The Commonwealth Human Rights abuses. An unfortunate (although Initiative (CHRI), an independent, nonpartisan, international organization, has been working for the conser- In India, gaining access to prisons vation and practical realization of is an especially formidable task human rights in the countries of the Commonwealth since 1993. Its main for researchers. goal is to advance constitutionalism, the right to information, and reforms in various agencies of the criminal small) section of the society, having justice system. CHRI is particularly come into conflict with the law, lan- concerned with prison reforms guishes in prisons that are managed because they form an integral part of through archaic laws and rules, the the preservation of human rights in observance or violation of which is custodial institutions. Prisons are typi- generally beyond public scrutiny. An cally the end product of the process understanding of the actual detention of administering criminal justice, conditions is blocked by several layers except for offenders placed in commu- of security procedures that hide facts nity-based programs. The operation of or render them out of date by the time these institutions thus has a great they are discerned. impact on the experience and meaning In order to assess prison conditions of rights and justice in a country. They and add protections against the abuse also provide an important ground for of detainees’ rights, CHRI capitalized study and research on the entire struc- on an official prison visitors pro- ture and process of the administration gram—a kind of community interven- of justice. tion provided in the law governing Typically, it is not easy for the management of prisons. Working researchers to gain access to prisons. with state human rights commissions In India, gaining such access is an and equipped with permission from especially formidable task. These insti- the controlling government depart-

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ment,1 a CHRI study team began 2. The ills of prisons are not entirely visiting prisons in 2001 in Madhya the making of the penal institu- Pradesh, then the largest state in tions—many of them emerge out India.2 CHRI subsequently extended of the lack of cooperation from, this work to two other states, and coordination with, other agen- Rajasthan and Chhattisgarh. By cies of the criminal justice system, such as the judiciary, police, pros- 2005, a CHRI study team had visited ecution, free legal aid, and proba- 27 prisons in Madhya Pradesh, 22 in tion services. Chhattisgarh, and 26 in Rajasthan. CHRI used these visits to develop This paper examines the various an understanding of the scale and rea- reasons for overcrowding and details the logic of prison visits as a tool for advancing rights and reforming pretri- Instead of collecting data on the al detention. It assesses the contribu- operation of justice from the outside, tion of these visits to addressing the issues of sentenced and unsentenced CHRI was able to monitor and scrutinize inmates in the prisons of several the prison system from within. Indian states.

Prison Population Growth, sons for overcrowding, the extent of Overcrowding, and Pretrial the abuse of inmates’ rights, and the Detainees sources of problems in the adminis- Overcrowding in India’s prisons is tration of justice. Instead of collecting directly related to the presence of a dis- data on the operation of justice from proportionately large number of pre- the outside, CHRI was able to monitor trial detainees (generally referred to as and scrutinize the prison system from under-trial prisoners in India). within. Between 1971 and 1980, the number CHRI then submitted reports to of under-trial prisoners in India rose respective state governments about sharply. The number of persons prison conditions and organized work- admitted to prisons under judicial cus- shops for officials to discuss prison tody to face trial climbed from about problems and create methods to 600,000 in 1970 to more than one improve conditions. million in 1980, an increase of 62 per- Two distinct pictures emerged cent. The average daily population of through the studies conducted by under-trial prisoners also rose sub- CHRI and through the exchange of stantially during this period, from views during workshops: 42,500 to 77,500. This growth has 1. Overcrowding is one of the major continued to the present day. At the problems facing most prisons end of 2003, there were 229,997 in India, and the excessive length under-trial prisoners in India. and use of pretrial detention is a The number of under-trial prison- major cause of overcrowding; and ers alone nearly exceeds the total

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Table 1: Indian Prison Population Data, 2002 and 2003

2002 2003

Convicts 82,121 91,766 Under-Trials 234,884 229,997

Detenues* 4,832 4,008 Others** 520 748

Total 322,357 326,519

* Detenues are those detained preventively, without trial, by executive order under Preventive Laws intended to tackle terrorism and other specific offenses. ** Others include debtors, insolvents, and other noncriminal inmates. capacity of the prison system, which such as the level of offending and the can hold 233,543 inmates of all kinds. nature of socioeconomic development And yet, there is also a large and grow- in the country. The slow pace of inves- ing number of convicted inmates, tigation by prosecution agencies, a con- which stretches the system well servative approach to the granting of beyond capacity. The number of con- bail, and the delayed disposal of cases victed prisoners grew by 12 percent by the judiciary are other important between 2002 and 2003, from 82,121 contributing factors. to 91,766 (Table 1). In that same year, By visiting prisons and talking to there was a two percent decline in inmates as well as officials, CHRI was the number of under-trial prisoners, able to learn more about the circum- but the total number of prison stances that affect prison population inmates in the country (326,519) levels. Below is a list of primary fac- remained in excess of capacity. tors that emerged from the study. It is Reportedly, the number of inmates not an exhaustive list nor is it a scien- has further increased since then, and tific explanation of the reasons for yet there has been hardly any increase overcrowding. But, like prison condi- in the capacity of prisons to accommo- tions, these factors heavily influence date inmates.3 the experience of justice for inmates.

Sources of Excess Detention Indiscriminate Arrests There are many reasons why prisons It is generally acknowledged by the are so overcrowded in India, including entire criminal justice system that aspects of the operation of the justice apprehending agencies arrest and system as well as tangential factors, detain unnecessarily large numbers

Justice Initiative 59 Pretrial Detention

of persons, often for the purpose flimsy. Other arrests were made so of linking criminal conspiracy or con- that the police could extract informa- necting criminal events to pending tion about other crimes and obtain cases.4 There is also abundant data “illegal advantages.”8 showing that the police do not use Arbitrary arrests and prolonged their powers of detention judiciously. judicial custody—especially in parts of For example, in 1980, the National the country marked by political Police Commission of India estimated unrest—are common. Because there that a large number of arrests made by is no second stage of review or judicial the police were not necessary to control appraisal of the cases of those persons crime and needlessly costly due to brought in by the police (and military), expenditures on harboring arrested suspects languish in prisons pending persons in jails. The majority of a protracted trial.9 Their judicial custody is in essence used as a preventive measure to threaten prospective sup- Most of the under-trial prisoners porters of political opponents and to had been detained because deter others in the community from harboring insurgents. they were not able to post bail.

Delay in the Production of arrests, it concluded, were for very Accused before Trying Magistrates minor offenses, and 43 percent of all There is extensive and frequent viola- expenditures in the concerned jails tion of Section 167 of the Criminal resulted from the detention of prison- Procedure Code (CPC), which pro- ers who “need not have been arrested hibits the extension of the period of at all.”5 remand beyond 15 days without the A study conducted in 2000 by the accused being physically present Law Commission of India confirmed before the trying magistrate.10 In prac- these findings. On the basis of empir- tice, the accused person waits in prison ical data collected from different states and is not produced before the magis- in India, the Commission showed that trate; only the warrant is sent from the the number of preventive arrests and prison to the court, and the court rou- arrests for petty offenses was very tinely extends the period of remand large.6 Moreover, the proportion of without hearing the accused person under-trial prisoners was unusually or his legal representative. This results high, and most of them had been in long periods of detention without detained because they were not trial or without even the charges being able to post bail or furnish sureties.7 framed and read to the accused. In In several cases the motive for the the absence of an interaction with the arrest was to haul in and harass as trial court, the accused person (or his many persons as could be connected legal representative) has no opportuni- to a crime, even if the evidence was ty to make his case or request release on bail.

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Case Studies

In most cases, the pretext for delay In cases when courts do grant bail, is the unavailability of a police guard the conditions and amount of bail for escorting the accused to court. It is and/or personal bond are often sad and surprising that the state, beyond the reach of the accused and which enjoys the right to curtail the their families. As a result, defendants liberty of a citizen, callously ignores remain in prison because of their lim- and violates its obligation to provide ited economic means. Professional proper means of delivery of justice to “bailers” take advantage of such situa- citizens in conflict with the law. tions.14 In tribal areas, where most Legally, the shortage of police person- people do not own any land or nel cannot be an excuse for the curtail- immoveable property, it is impossible ment of the right to liberty and undue for the accused to produce a patta detention of accused persons in pris- (document of ownership of land or ons. The judiciary has the option to release an accused person on bail under such circumstances, but this At the lower level, India’s judiciary is very discretion is seldom used. conservative in the granting of bail or bond, despite the clear preference in the law. Limited Use of Bail/Bond At the lower level, India’s judiciary is very conservative in the granting of bail property) to the satisfaction of the or bond, despite the clear preference in court and therefore cannot secure their various provisions in the law and some liberty even after an order of release on guidelines issued by the Supreme bail/bond has been issued. Overall, 11 Court of India. A fundamental princi- the amount of bail/bond prescribed by ple of the criminal justice system in the courts (particularly by the lower India is that all defendants are inno- courts, where most cases are pending) cent until proven guilty. Accordingly, is not correlated to the socioeconomic and as high court decisions have reiter- status of the accused person, which ated, the granting of bail should be creates an array of problems. the rule rather than the exception.12 Of course, pretrial detention may be Underutilization of Provisions for justified in some circumstances— Releasing First-Time Offenders for example, to prevent the accused from absconding, committing another A majority of pretrial and convicted offense, tampering with evidence, prisoners belong to the category of or intimidating witnesses before the first-time offenders. Prison statistics trial. But unnecessary pretrial deten- show that repeat and habitual offend- tion subjects the accused to the stigma- ers make up between five percent and tizing effect of detention, including six percent of all persons convicted of 15 the inability to prepare an effective crimes in the country. The portion of defense, without any proper justifica- habitual offenders among under-trial tion in law.13 prisoners is even lower. By a rough

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estimate, nearly 90 percent of the The use of these provisions could offenders in prison (convicted and reduce the number of under-trial under-trial) fall into the category of prisoners as well as the length of first-time offenders. Even if we deduct their detention, but it seems that the exceptions falling under various neither advocates nor the judiciary sections of the “Probation of Offender vigorously apply them. The study team Act,” and Section 360 of the CPC, of CHRI has been entreating state- almost 50 percent of this population sponsored free legal aid functionaries should be eligible for the mandatory to educate under-trial prisoners about benefit of noncustodial correctional these provisions. treatment envisaged under these special provisions. Discord in the Criminal Justice System A fundamental reason for the problems with pretrial detention is discord Some of the judicial magistrates and disharmony within India’s crimi- interviewed by CHRI admitted nal justice system. The absence of coordination between institutions in that they were afraid of being India is endemic. These agencies may labeled as pro-offender judges. all share the same objectives, but they largely fail to achieve them due to a lack of concerted effort. Each agency therefore passes the blame for the failure of the system to other It is a sad commentary on the crim- sister agencies. inal justice system that these provisions are not applied as they were intended. Some of the judicial magis- Addressing the Problem trates interviewed by CHRI admitted There is no shortage of good ideas that they were afraid of being labeled about how to reduce prison crowding as pro-offender judges and penalized in India. Remedial efforts might focus in their Annual Appraisal Reports on: faster investigations by the prose- if they applied these provisions as cution and speedier trials; more strin- frequently as was intended. Section gent application of rules by the lower 6 of the Probation of Offenders Act judiciary in granting bail; review of and Section 361 of the CPC mandate under-trial prisoners and their release that if (in the case of certain categories on personal recognizance; and an alert of offenders) the provisions are not prison administration, regularly pro- applied, the trial magistrate/judge ducing under-trial prisoners before shall have to record reasons for not courts, discouraging the willful doing so. But in the large majority of absence of the accused person on the cases this mandate is violated with date of hearing, ensuring requisition of impunity. escort guards on time, providing appropriate transport to carry remand

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prisoners to courts, organizing regular The Logic of Prison Visits: meetings of review committees for Supports for Reform under-trial prisoners, using free legal Another barrier to alleviating the aid to benefit under-trial prisoners, and system’s flaws is rampant corruption. extending full cooperation to official CHRI initiated prison visits because of and nonofficial visitors studying prison the dangerous veil of secrecy that cov- conditions so they can make recom- ers the institution of criminal offender mendations for appropriate action confinement. With few exceptions, and improvement.16 conditions in prisons are appalling, All of these innovations could take making them a fertile breeding ground place without changes in the law. for human rights abuse. CHRI discov- Indeed, the seeds of reform and improvement in the administration of All of these innovations could take place justice lie dormant in the existing law itself. What is required, in other without changes in the law. Indeed, words, is the implementation of the the seeds of reform and improvement provisions of law in the right spirit. in the administration of justice lie But this in turn requires thoughtful coordination between various agen- dormant in the existing law itself. cies of the criminal justice system. Unfortunately, the constitutional design of the criminal justice system ered that most of these afflictions leads to the functioning of its various result not from any malfeasance of agencies in separate compartments the prison staff but from the collective and denies a holistic approach to neglect of the whole system. There is justice delivery. Each organ of the a lack of effective communication. criminal justice system (the police, There is no linkage, no monitoring, no deadlines, no evaluation, and therefore advocates, prosecution, probation, no result. judiciary, and prisons) claims to be Jail staff and inmates alike were ini- doing its best, but the system as a tially suspicious of the idea of prison whole fails to deliver. There is no com- visits, but perseverance and continued mon platform at any level—national, interaction with Non-Official Visitors state or local—where all the agencies (NOVs) allowed CHRI to discern the of the criminal justice system meet possibility of improving the system and sort out the complexities of their through simple interventions. work together. Some sporadic meas- Since 2001, study teams from ures to improve coordination are CHRI have visited 75 prisons, four taken here and there to alleviate the protective homes for women, and symptoms, but the root of the dis- four women’s police stations in the ease—the constitutional design of the three states of Madhya Pradesh, system—persists.

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Chhattisgarh and Rajasthan. CHRI solicited. This approach not only teams involved as many local func- ensured a large presence from all sec- tionaries of the criminal justice system tions of criminal justice administra- as possible. The tacit purpose was tion but also had a positive effect on to sensitize them to the suffering the resultant decision making by these of incarcerated persons and to the agencies. mental agony of their protracted wait CHRI has organized 11 such for a trial. It also provides these visit- regional workshops in three states. ing officials with an opportunity to see These workshops were widely attend- how cooperating with other agencies ed by a cross-section of the criminal could solve difficult problems. justice agencies working at both the Local authorities from the judiciary, functional level and the policy-making administration, and police have gener- level. In order to generate appropriate ally been cooperative. On several occa- reaction from official and nonofficial sions, CHRI visits and reports have participants, some challenging ques- resulted in prompt orders being tions were raised during the sessions issued for free legal assistance, for of each workshop. To bolster the holding Saturday courts in jails, for providing sufficient police personnel potential for reform within the system, to escort under-trial prisoners to CHRI posed the following questions: court, for referring sick prisoners to g Are bigger prisons the only solution specialist medical services, and for to the overcrowding problem? Or are releasing petty offenders through plea there methods to reduce the prison bargaining. population? CHRI soon realized that it was necessary to make some common plat- g Are automatic arrests necessary form available to the functionaries of for maintaining law and order in criminal justice agencies to discuss society? Can appropriate discretion their problems and to find some ways be used immediately after the of improving interdisciplinary coordi- commission or reporting of crime to nation. As a result, regional work- restrict detention to the minimum shops for the orientation of nonofficial necessary? prison visitors were organized and g Can the criminal justice process be higher officials of the judiciary, police, sustained if suspects in minor prisons, prosecution, and probation crimes are released on bail, bond, services were invited to chair different or personal recognizance instead sessions. As a part of the strategy to of confined to custodial care? involve a wide array of criminal justice officials, the cooperation of constitu- g Can women offenders, who have tional bodies such as the State Human roots in family and society, be more Rights Commissions and the State readily granted bail, bond, or Commissions for Women was also release on personal recognizance

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Table 2: Number and proportion of convicts and under-trial prisoners (against total prison population) in major states of India at the end of 2002

Category of prisoners % share of Name of State Convicts Under-trials Convicts Under-trials All India Total 82,121 234,884 25.5 72.8 Bihar 5,064 32,101 13.6 86.1 Jharkhand 3,013 12,094 19.9 79.9 Karnataka 2,298 7,972 22.1 76.6 Orissa 2,975 9,616 23.5 76.1 Uttar Pradesh 6,073 44,951 11.6 86.1 West Bengal 2,611 16,036 13.9 85.6 Delhi 2,333 9,656 19.4 80.2 Andhra Pradesh 4,872 8,549 36.3 63.7 Assam 2,730 4,319 38.6 61.1 Gujarat 3,286 6,369 32.1 62.2 Haryana 3,633 7,717 32.0 67.9 Kerala 1,711 3,458 33.0 66.7 Maharashtra 7,198 14,517 32.7 65.9 Punjab 3,984 8,113 32.9 67.0 Tamil Nadu 5,582 14,413 25.5 65.8

Madhya Pradesh 12,057 15,635 43.4 56.3 Chhattisgarh 5,036 4,961 50.3 49.6 Rajasthan 4,976 7,322 40.2 59.1

Source: Prison Statistics India 2002, National Crime Records Bureau, Ministry of Home Affairs, http://ncrb.nic.in.

without risking the due process of be formed at every district and law? subdivision and empowered to release or recommend to appropri- g Can under-trial prisoners be allowed ate authorities the release of to work and be paid minimum inmates to community-based trial wages inside the prison to support rather than custody-based trial? their families outside? g Should such committees visit pris- g Should under-trial prisoners’ review ons for review of cases of under-trial committees comprising members prisoners every month or every of the local criminal justice system fortnight?

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Pretrial Detention

g How can unnecessary delays, post- Impact on Prison Populations ponements of hearings, and the In its original design, the prison nonproduction of accused before visitors program was never directly magistrates be reduced? aimed at reducing the extent or duration of pretrial detention. The goal, g Should the cases of women and rather, was opening up the obscure young offenders remanded to judi- nature of prison management through cial custody be queued separately permitted community interventions. for early disposal? It was during the implementation g Could some judicial magistrates of the program that CHRI discovered hold court within the prison premis- the need to bring together all agencies es once a month or fortnight? of the criminal justice system at various levels as a prerequisite for g Can the amount of bail/bond be jus- building understanding and coordina- tifiably linked to the socioeconomic tion among them. status of the accused? The repeated emphasis on such coordination at the local level, as well g At what level should overcrowding as at the policy-making level, has had in prisons be treated as unaccept- an impact on the under-trial prison able?17 population in the three states in which These and other questions stirred the program has been carried out. animated discussions during the meet- While there is no clear causality, the ings and workshops. Representatives data in Table 2 show how the ratio of of the criminal justice system are the under-trial prison population to often averse to taking lessons or advice that of convicted prisoners is lowest in from an NGO or outside agency work- Madhya Pradesh, Chhattisgarh, and ing to reform the system, and their Rajasthan—the three states in which first reaction was tough opposition. CHRI has worked most intensively. But as the discussions proceeded, the Table 2 provides data on the num- functionaries accepted the need for ber of inmates in Indian prisons. In the country as a whole, nearly three- reform and for cooperation and coor- quarters of all inmates are under-trial dination among all agencies of the detainees. This ratio varies consider- criminal justice system.18 Meeting ably from state to state. In some states, participants realized that there was such as Bihar, Jharkand, and a lack of interagency understanding Karnataka, the number of under-trial of roles in the justice process; that inmates exceeds that of the convicted some archaic statutes required reex- inmates by a factor of four to seven. amination; and that many problems In other states it is about two times. were remediable and could be dealt And in Rajasthan, Chhattisgarh, and with at the local level. Madhya Pradesh, the states where

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CHRI has been most active, the pro- by which there has been a reduction in portions are roughly equal. the size of the population of pretrial CHRI has been advocating in detainees—through: (a) judiciously Madhya Pradesh, Chhattisgarh, and restricted arrests and alternative Rajasthan for: (a) coordination among means of bail, bond, house arrest, various agencies of the criminal personal recognizance; or (b) more justice system at the local level to rapid judicial procedures leading to bring the accused before the courts discharge, acquittal, or conviction. faster; (b) use of the Probation of (first) In the long drive to reform criminal Offenders Act in appropriate cases; (c) justice and preserve prisoners’ rights, it holding courts in prisons for disposal is important not to jump to conclu- of cases of under-trial prisoners sions. A reduction in the proportion or apprehended on minor charges; and ratio of pretrial detainees in compari- (d) disposal of the cases of detainees son to convicted prisoners cannot serve who plead guilty and who have passed as an absolute indicator of reform in sufficient time in prisons pending the situation of pretrial detention. The inquiry, investigation, and trial. shift from pretrial prison population to From these numbers it appears convict population can at best denote that this work has had an impact on the acceleration of judicial processes the criminal justice system resulting and perhaps a more punitive disposi- in the reduction of the under-trial tion in the judiciary. It cannot detect population. In Madhya Pradesh, for whether there have been changes in example, the size of the under-trial the number of arbitrary arrests or the prison population declined during frequency of denials of the right to bail the years 2001 to 2003, from 16,837 by defendants. to 15,635 to 13,993. Similarly, in The best way to address the issue of Chhattisgarh the trend is generally the swelling population of pretrial downward, from 4,921 to 4,961 to detainees in prisons is through appro- 4,128. In Rajasthan, the impact seems priate police–prosecution reforms and to be more dramatic: the under-trial simultaneous improvement in judicial population during these years receded processes. Prisons contribute to the continuously, from 8,737 in 2001, to reform effort by registering the scale of 7,322 in 2002, and 6,584 in 2003. change and by tracking changes over These are hopeful signs in compari- time. And, as the experience of CHRI son to the all-India figures of pretrial has shown, prison visit programs have detainees rising from 227,817 to a significant role to play in activating 234,884 and then showing a slight fall interagency coordination and opening to 229,997.19 a public conversation about how to By itself, a reduction in the number alleviate human suffering in custodial of detainees is a good sign. But what institutions without jeopardizing the really counts for reform is the means security of the society.

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Notes

R.K. Saxena is a consultant on prisions for the Commonwealth Human Rights Initiative.

1. In each state, the “controlling government department” comprises the minister in charge of prisons together with the administrative secretary to the government. Also known as the Home Department, it is a part of the government secretariat and not connected with the Human Rights Commission.

2. The state was later bifurcated into Madhya Pradesh and Chhattisgarh.

3. The most recent published figures at the time of writing are for 2003. See Prison Statistics India – 2002 and 2003 (Ministry of Home Affairs, National Crime Records Bureau [NCRB]), htpp://ncrb.nic.in.

4. Apprehending agencies include different departments of the police, such as the Criminal Investigation Department (CID), Anti-Corruption Department (ACD), Government Railway Protection Force (GRPF), Anti-Terrorist Force (ATF), and the Special Task Force (STF). It does not include the military.

5. Third Report (Government of India, National Police Commission [NPC], January 1980), 31.

6. “Preventive arrests” are arrests made to determine the commission of a crime by the individual through the process of enquiry, investigation, and trial during the period of judicial custody.

7. Consultation Paper on Law Relating to Arrests (Law Commission of India, November 2000).

8. This is a common expression in India for describing the extraction of bribes and other undue favors.

9. Criminal Procedure Code, 1973, Section 328(3).

10. The Criminal Procedure Code, 1973, Section 167(2)(b), states: “No Magistrate shall authorize detention in any custody under this section unless the accused is produced before him.”

11. There is no agency in India that records the number of accused persons released on bail and/or bond either within a territorial jurisdiction of courts or over a period of time by a court. Hence it is not possible to track trends in such release or measure the rates of absconding.

12. State of Rajasthan v. Balchand, 1978 SCR (1), 535–536.

13. Motiram v. State of MP, 1979 SCR (1), 335 and 341.

14. After prolonged pressure by human rights activists, and with the purpose of encouraging unsecured bail for indigent defendants, the underlined portions of the provisions on bail were added to the Criminal Procedure Code by Parliament in June 2006:

436(1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail: provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail from such person discharge him on his executing a bond without sureties for his appearance as hereinafter provided.

Explanation: Where a person is unable to give bail within a week of the date of his arrest, it shall be sufficient grounds for the officer or court to presume that he is an indigent person for the purpose of this proviso.

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15. Prison Statistics India, 2000, 2001, 2002, and 2003 (Ministry of Home Affairs, NCRB).

16. Some of these measures are in fact being introduced today, including: the provision of free legal aid to the poor through the State Legal Services Authority; the convening of under-trial prisoners’ review committees; monthly review of the cases of inmates pending trial for more than six months; the introduction of fast-track courts (constituted to process cases pending in courts through faster procedures); and the creation of jail courts, by which judicial magistrates come to the prison to hold hearings.

17. In some of the prisons the inmate population is four to five times the capacity, as reported in Prison Statistics India, 2004 (Ministry of Home Affairs, NCRB), http://ncrb.nic.in/prisons2004. Although the reports do not provide prison-by-prison statistics on inmate populations, it can still be seen that the overall prison population in the State of Jharkhand is three times the capacity of prisons for the entire state. In such situations some of the prisons are heavily overcrowded—as much as four to five times the actual capacity. The same is true in the states of Madhya Pradesh and Bihar. In CHRI’s visits to the state of Chhattisgarh (2005), it found the population of jails at Dantewara and Surajpur to be four and five times capacity, respectively.

18. It should be noted that individual functionaries of different agencies of the criminal justice system are open to participating in workshops and seminars for open discussions. However, when the individual agency is subjected to criticism, they become defensive and resist suggestions for improvement. It takes hard work and perseverance to convince them to be open to change for the better.

19. The hypothesis that CHRI’s intervention is at least partly responsible for a reduction of the under-trial population in Madhya Pradesh, Chhattisgarh, and Rajasthan is bolstered by the otherwise similar conditions across all states. That is, all states have the same criminal law and procedural legislation, and similar levels of offending.

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Pretrial Detention

On the Front Lines: Insights from Malawi’s Paralegal Advisory Service

Clifford Msiska writes from Malawi responsible for coordinating the ongo- about the innovative use of paralegals ing activities of 38 paralegals in courts, to reduce the number of pretrial prisons, and police stations in all four detainees. judicial regions of Malawi. Thus, this account of the evolution and impact of PAS is an insider’s perspective on the Introduction challenges and success of the effort to This report describes the introduction reform the pretrial detention process- of the Paralegal Advisory Service es of Malawi. (PAS) in Malawi in 2000 and its impact on pretrial detention trends Issues of Criminal Justice and Pretrial Detention in Malawi Over 300 homicide remandees had been The criminal justice system in Malawi suffers from many ailments. Prisons awaiting trial for longer than two years. are overcrowded and inadequately resourced, resulting in unhygienic conditions for most inmates.2 Lay and practice, as well as levels of prison magistrates often stand in for judges congestion.1 The report explains the due to the lack of qualified judicial per- logic behind the introduction of PAS, sonnel, which compromises the legal as well as examining its contribution integrity of the pretrial process.3 The to greater fairness and better gover- quantity of lawyers is insufficient to nance in the criminal justice system. cope with the demands of the state The initial purpose of PAS was to and the general public.4 Free legal aid help reduce unlawful detention and is available only in capital cases. prison overcrowding. PAS has made Courts are poorly resourced and have significant progress toward these huge backlogs, especially in homicide goals, and its work has had other cases.5 At the time of writing, 321 important benefits as well, including homicide remandees had been await- invigorating public administration ing trial for longer than two years. and cultivating patterns of good gover- Suspects are hastily arrested, typically nance in the justice sector. before an investigation has been com- The author of this report was close- pleted. Prosecutions are largely con- ly involved in the development and ducted by police officers who are not introduction of PAS. Today he is qualified in law. Before the advent of

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PAS, some prisoners were entirely for- late 1990s after Penal Reform gotten by the justice system. A 1997 International (PRI), acting under the report on the backlog of homicide aegis of the African Commission on cases in Malawi found 57 accused Human and Peoples’ Rights, organ- inmates in prison whose case files ized the first Pan-African Seminar could not be traced.6 on Prison Conditions in Africa. Held The problems with lengthy and in Kampala, Uganda, in 1996, the indiscriminate pretrial detention in seminar drew human rights non- Malawi are not new. During the rule governmental organizations (NGOs), of the late Malawian dictator, Kamuzu senior prison officers, and govern- Banda (president from 1964 to 1994), ment representatives from 40 African the state could lawfully detain suspects countries (including Malawi). One of without trial indefinitely. De jure, if the primary reports of the seminar not necessarily de facto, the situation documented that in some African improved one year before the coun- countries remand prisoners constitut- try’s multiparty elections in 1994, ed up to 80 percent of the total prison when Malawi acceded to the population and were detained for International Covenant on Civil and many years before trial.9 Political Rights. The Covenant states The movement to establish a that “it shall not be the general rule Paralegal Advisory Service drew that persons awaiting trial shall be important ideas and political legitima- detained in custody”; that “everyone charged with a criminal offence cy from some of the conclusions shall have the right to be presumed reached at the Kampala meeting. The innocent until proven guilty according Kampala Declaration on Prison to the law”; and that accused persons Conditions in Africa, for example, have the right “to be tried without insisted that dangerous and violent undue delay.”7 In 1995, Malawi adopt- crime could neither justify nor explain ed a constitution with a bill of high rates of pretrial detention, as the rights that recognizes the “rights of research reports found that “the accused persons.”8 Today, notwith- majority of detainees are in pretrial standing a formal commitment to detention for petty crimes or serving international standards and constitu- short terms of imprisonment.”10 And tionally entrenched protections for the declaration strengthened the cause accused persons, there is much to do of external review and expediting of to make these commitments a reality. cases by reiterating commitments found in the new Malawi Constitution, Building a Case for including: Paralegal Services g Judicial investigations and proceed- The problems of pretrial detention ings should ensure that prisoners in Malawi began to receive greater are kept in remand detention for international public attention in the the shortest possible period, avoid-

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ing, for example, continual Rights (1999), which states that: remands in custody by the court. “Bar Associations should in collaboration with appropriate government g There should be a system for regu- institutions and NGOs enable parale- lar review of the time detainees gals to provide legal assistance to spend on remand. indigent suspects at the pretrial Perhaps the most important asset stage.”13 The Plan of Action of of the Kampala Declaration was the Ouagadougou Declaration on its insistence on unconventional Accelerating Prison and Penal approaches to justice and the vital role Reforms in Africa (2002) promotes of NGOs. The declaration enjoined the detention of persons awaiting trial “only as a last resort and for the shortest time possible”; and the “greater use The most important asset of the of paralegals in the criminal process to provide legal literacy, assistance Kampala Declaration was its insistence and advice at a first aid level.” 14 on unconventional approaches to justice and the vital role of NGOs. Establishment of the Paralegal Advisory Service In 1999, with support from Penal Reform International and provoked by states to explore “informal avenues reports of the poor conditions in that do not include the courts—such as which juvenile prisoners were being diversion, mediation, and reconcilia- held, three local human rights NGOs tion.” Moreover, “the role that non-gov- (Centre for Human Rights and ernmental organisations have to play Rehabilitation—CHRR; Eye of the in prisons is important and should be Child—EYC; and Malawi Centre for recognised by all governments. They Advice, Research and Education on should have easy access to places of Rights—CARER) conducted a study of detention and their involvement the conditions of juveniles in three 11 should be encouraged.” These exhor- main prisons in Malawi (Zomba tations were not empty propositions. Central Prison, Chichiri Prison, and One presenter, Amanda Dissel, of the Maula Prison).15 The goal was simple: Johannesburg-based Centre for the to find out how many juveniles were Study of Violence and Reconciliation, there and why. specifically recommended that “parale- The study found that of the 179 gals, articled clerks and unqualified young people in the juvenile section legal persons should be allowed to in Zomba Central Prison, not one assist prisoners.”12 had been lawfully detained. In some This idea was picked up in the cases, the remand warrants had Dakar Declaration of the African expired; in most, the detainees in the Commission on Human and Peoples’ juvenile wing were already adults.

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Significantly, the study found that International Development (DFID), none had been legally advised or rep- the Malawi Ministry of Justice and resented and that none had committed Constitutional Affairs, and the Malawi offenses that were “so depraved” or Human Rights Commission (a consti- behaved in a manner “so unruly” as to tutional body), PRI organized a justify remand to prison.16 More fun- regional seminar titled “Juvenile damentally, the study showed that the Justice in Malawi: Time for Reform.” 17 rest of the justice system exercised no There was active participation of oversight of the judiciary or the police. experts from a broad cross-section The result of the study was to recommend setting up a paralegal service to work in the prisons and monitor remand cases. The option to introduce The paralegals could bring basic legal paralegal services in the criminal jus- services to those who needed it most tice system made sense because para- by working in prisons, police stations, legals could be more accessible compared to lawyers, who were urban and courts on a daily basis. based and whose legal fees were beyond the reach of most Malawians. The paralegals could bring basic legal services to those who needed it most of the criminal justice system in by working in prisons, police stations, Malawi as well as experts from other and courts on a daily basis. Moreover, sub-Saharan African countries and paralegals could reach hundreds of Europe. The regional seminar recom- prisoners at once through their legal mended that: clinics, unlike lawyers who work on a one-to-one basis. There should be a limit on the period a juvenile can be kept on remand. At the same time, the aforemen- Juveniles under 14 years accused of a tioned three NGOs recognized they minor offence should not be remanded would need additional legitimacy and in custody for longer than three months. support for such an idea from within Juveniles aged 14 to 18 should not be in the region. The Kampala Declaration custody for more than 12 months if conveniently had recommended that: accused of a serious offence and for no “Regional seminars should be con- longer than three months if accused of a 18 vened to discuss regional initiatives minor offence. and disseminate the findings and proceedings of these seminars through- This recommendation was neces- out the continent, and enhance bilat- sary because Malawian law does not eral, multilateral and international exclude juveniles from being held on co-operation, assistance and network- remand in police cells, reformatory ing.” And so, in late 1999 and with schools, and prisons while awaiting support from UNICEF Malawi, the trial. In Malawi, most juveniles who United Kingdom’s Department for are suspected of having committed

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murder or manslaughter may be At the outset, the pilot PAS project remanded for more than two years focused on the homicide remand before their cases are tried. The backlog as DFID had provided funds human rights NGOs that attended for its reduction. PAS paralegals edu- the seminar committed themselves cated prisoners awaiting trial on capi- to establishing a “paralegal advisory tal offenses in the substantive law, pro- service in the four main prisons in cedures, and basic evidentiary rules 19 Malawi.” surrounding the charge of murder or manslaughter. At the time, many homicide remand prisoners awaited trial for up to 10 years. Unsurprisingly, homicide or manslaughter remand Before the project, many prisoners were disproportionately represented among the pretrial detention remand prisioners waited population. Most homicide remand up to 10 years for a trial. prisoners were not ready to plead guilty to a lesser charge of manslaughter because they did not understand the difference between murder and manslaughter. And, because the direc- Evolution of the Paralegal tor of public prosecutions sought to Advisory Service ensure that every homicide investiga- In May 2000, together with local tion was thorough enough to win a NGOs and with financial assistance conviction, the state was slow to take from the DFID-funded Malawi Safety, accused persons to court for trial. In Security and Access to Justice the end, homicide remand prisoners (MaSSAJ) Programme, PRI estab- remained in detention for years; at lished the Paralegal Advisory Service times longer than the period they with eight paralegals working in would have been incarcerated had they Malawi’s four main prisons (Chichiri, been convicted and sentenced upon a Maula, Mzuzu and Zomba Central guilty plea on manslaughter charges. prisons). The paralegals are centrally PAS’s paralegals observed 90 capi- coordinated by a PAS national coordi- tal trials in the High Court. They nator and employed by four NGOs working in partnership with criminal found that most homicide charges justice agencies.20 The paralegals are were reduced to manslaughter. The lay workers with elementary training paralegals also attended cases involv- in law.21 The Paralegal Advisory ing vulnerable groups in prisons, Service is assisted by an advisory namely, young offenders, women, and council comprising senior govern- the mentally and terminally ill, to ment officials and representatives assist in their early release. The para- from the judiciary.22 legals then set about finding out what assistance prisoners lacked.

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First, they found that prisoners did two years of PAS’s operation, 714 para- not understand the law. PAS therefore legal aid clinics were held, educating developed a series of practical work- 14,600 prisoners.25 By mid 2007, shops to inform prisoners on the crim- some 3,500 clinics had educated in inal law and procedure and enable excess of 100,000 prisoners. them to better represent themselves in Second, they learned that many court (as they could not afford the remand prisoners were held unlawful- services of a lawyer). Moreover, PAS ly, were “overstaying” on remand, or developed a paralegal aid clinic work- did not know how to gain access to shop on bail. This involves paralegals’ bail. In response, paralegals provide interviewing awaiting trial prisoners legal advice and assistance to remand and assisting those who wish to com- prisoners who are being detained plete a standard bail application form unlawfully, inappropriately, or for and then lodge this with the appropriate court. The standardized bail application form was developed by PAS in PAS developed a series of practical work- consultation with the judiciary. These shops to inform prisoners on the criminal forms simplify and expedite the bail law and procedure and enable them to application process as judicial officers are provided with relevant information better represent themselves in court. to come to a pretrial detention or release ruling. Typically, prison authorities check the completed forms undue lengths of time, with priority against prisoners’ files and, where given to vulnerable groups such as appropriate, stamp the details record- women with small children and juve- ed in the forms as accurate. In this niles.26 way a number of uncontested bail Third, they noticed that the crimi- applications can be heard together by nal justice agencies themselves were one magistrate and an order can be poorly equipped, resourced, and made for the pretrial release of a num- trained and were not talking to one ber of accused persons in one hearing. another enough. Paralegals adopted a Up to 30 bail applications can be heard pragmatic approach by seeking part- simultaneously in this manner.23 nerships with these agencies. They Paralegals use interactive drama adopted a supportive role and reinvig- techniques to encourage the participa- orated Court Users’ Committee meet- tion of prisoners at regular paralegal ings. These committees operate at the aid clinics. It is not unusual for up to local, regional, and national levels to 200 prisoners to attend such a clinic. identify problems in the criminal jus- The emphasis in the clinics is placed tice process and come up with local on self help. For example, they address solutions. The paralegal team leader in how an accused person can plead in a magisterial district convenes (and mitigation or a detainee can conduct pays for) the monthly local committee his own bail application.24 In the first meetings with prison officials, police

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Table 1: Prison population in December 1999

Convicted Remand To t a l Male Female Juvenile Male Female Juvenile

All Prisons 4,265 30 198 2,258 44 164 6,959

(4,493) 64.6% (2,466) 35.4% 100%

Source: Malawi Prison Service chiefs, and judicial officers to check on ed by police officers) by listing the their progress and address any prob- many minor cases involving accused lems or complaints. persons who have been in detention The committees have proved effec- for long periods of time, not been tive in improving communication arraigned before a court, or are eligible and coordination between criminal for bail. justice agencies and addressing local Over time, PAS discovered a need problems. In one instance, paralegals, to go backward in the penal chain, supported by prison officers, alerted because many problems stemmed in a committee of the high level of large part from detention or charging overcrowding at a local prison. In decisions made by the police and the response, the chief magistrate visited courts. Consequently, in 2003 PAS the prison the next day with three extended its services to the courts and additional magistrates, police prosecu- police to provide a broader legal aid tors, and court clerks and released a service to all those in conflict with the number of prisoners awaiting trial. law at the outset of the criminal justice The local committees are not expen- process. sive to administer. Some US$10 is In mid-2007, PAS employed 38 budgeted per meeting to cover the cost paralegals working in 24 prisons (cov- of local transport and refreshments. ering 85 percent of the prison popula- Committees also discuss reducing the tion), 5 courts, and 5 police stations. courts’ caseload by referring appropri- PAS provides legal assistance and ate cases to traditional authorities for advice to poor people using non- local settlement, as well as encourag- lawyers on three different “front lines” ing the police to investigate alleged of the criminal justice system—in crimes before suspects are arrested prison, in police stations, and at court. and remanded in custody rather than PAS seeks to reduce not only the fre- afterwards.27 quency of the use of pretrial detention Paralegals also assist police prose- but also to shorten its duration by cuting officers (in Malawi, prosecu- improving the efficiency of the crimi- tions in the lower courts are conduct- nal justice system. By maintaining a

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Table 2: Prison population in January 2007

Convicted Remand To t a l Male Female Juvenile Male Female Juvenile

All prisons 8,870 98 358 1,823 55 62 11,266

(9,326) 82.8% (1,940) 17.2% 100%

Source: Malawi Prison Service constant dialogue with the Malawi At the end of 1999, the first period Prison Service, Malawi Police Service, of time for which reliable information and judiciary, PAS has enabled the is available, there were 6,959 inmates justice system to operate more in prison, of whom 35 percent were on smoothly. Since the project’s inception remand. Table 1 shows this propor- in May 2000, none of the criminal jus- tion, as well as the number of males, tice agencies has complained about females, and juveniles in prison at this the presence of paralegals at police sta- time. tions, courts, or prisons. Since 2000, the prison population has grown. In January 2007, there Assessing the Impact of the were more than 11,000 people in Paralegal Advisory Service prison in Malawi. Between 1999 and A meaningful assessment of the 2007, the size of the remand popula- impact of PAS requires an examination diminished, however. In 2007 tion of trends in detention and levels there were fewer than 2,000 inmates of prison congestion before and after on remand, and they constituted only paralegals began to offer assistance to 17 percent of all prisoners (Table 2). inmates. Although before and after comparisons are not perfectly suited The Contribution and Logic of for this analysis, the figures above the Paralegal Advisory Service strongly suggest PAS has made an Credit for these advances cannot be important independent contribution fully attributed to PAS. Other factors to legal aid in Malawi and the reduc- can explain the decrease in the proportion in the size of the remand population of inmates on remand, including tion in particular. the length of sentences, the volume of Prison data are sketchy for the arrest, and the speed of police investi- period before 2000, but we were told gations. Still, many criminal justice that the remand population constitut- stakeholders believe that PAS has ed between 40 percent and 50 percent played an instrumental role in reduc- of the number of inmates in prison ing the size of the remand population. in Malawi in the years 1996 to 1999. One analyst, closely involved in the

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development of PAS, claims that dur- themselves. Magistrates have coming the first four years of its operation mented on the more sophisticated PAS “facilitated the release of approxi- understanding of the law demonstrat- mately 2,000 prisoners” and “reduced ed by prisoners in court, who also substantially the number of persons prove better able to argue for their unlawfully remanded in prison and release on bail.31 Magistrates have con- stabilized the remand population at 22 sistently observed that having clinics percent (from 50 percent before the in prison to educate prisoners and 28 scheme began).” Moreover, an inde- enable them to represent themselves pendent evaluation concluded: has lightened their caseload and moved cases more swiftly through the Since the Paralegal Advisory Service system. Unsurprisingly, PAS has won (PAS) came into operation in May 2000, the support of the senior judiciary, the Service has become an important actor in the protection of poor people in including the firm endorsement of the conflict with the law. All the interviewed chief justice of Malawi. stakeholders praised the programme and Second, paralegals provide a check spontaneously called it indispensable, on administrative routines, especially bridge building, voices of the voiceless inside the police service. Paralegals and a whistle-blower, making it possible review every remand warrant and for the management to address certain make sure people are lawfully bad practices within the system. Many detained. The number of illegal identified the programme as one of the main reasons why the number of reman- remand warrants used by police has dees has dropped significantly.29 fallen from the hundreds at the beginning of the project to a few dozen today. The police can no longer dump By contributing to the reduction individuals in prisons, as they are chal- in the remand population, paralegals lenged by prison officers at the monthly Court Users’ Committee meeting have changed the criminal justice and held to account by magistrates system in several important ways. when they visit prisons and conduct “camp courts.” Camp courts are, in essence, mag- In addition, by contributing to the istrates’ courts conducted in prison.32 reduction in the remand population, In Malawi, encouraged by PAS, magis- paralegals have changed the criminal trates go to prison with a court clerk justice system in several important and police prosecutor and screen ways. 30 lists—prepared by paralegals—of First, between May 2000 and May unlawfully or unnecessarily detained 2007, paralegals enabled 104,000 persons. In this way magistrates can prisoners to represent themselves at immediately release persons who have court and argue for bail cogently, been detained unlawfully or for whom enter a plea in mitigation, or defend the prosecutor has no objection to bail.

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Magistrates can also fix trial dates for which a court imposes a sentence of detainees whose cases have been imprisonment subject to confirmation remanded for long periods of time. or review by the High Court. Failure to Camp courts are effective in reducing comply with this practice has resulted prison congestion and in restoring in some prisoners’ staying on in prisoners’ confidence in the justice prison illegally when they should have system by seeing justice in action.33 been released.35 Between May 2003 and December Fifth, paralegals have created space 2006, 88 such camp courts were in police stations to divert people out of held with PAS support, resulting in the criminal justice process. Paralegals the release of hundreds of remand work at the police station level to assist prisoners. with the screening of juveniles in con- Third, paralegals inculcate rigor in flict with the law. Paralegals interview docket reviews. The paralegals follow these young people according to a form up with the court and prosecution to make sure cases are not forgotten and old cases are processed as a priority by Following an evaluation of a pilot scheme in the courts. Consequently, remand four police stations, the police recommended prisoners are no longer lost or over- looked by the criminal justice system. that PAS extend its diversionary services Fourth, paralegals have facilitated to all police stations. interagency accountability. As mentioned above, paralegals encourage magistrates to visit prisons to review pre-agreed with the police and make the remand caseload. Working from a recommendations for disposal that list prepared by the paralegals and dis- police follow for the most part. cussed with the police prosecutor in Juveniles are thus diverted from the advance, the magistrate screens the formal criminal justice system right remand caseload, discharging some after arrest. Following an evaluation of and granting bail to others. In support a pilot scheme in four police stations of PAS advocacy for such work, the (jointly conducted by PAS and the first Judicial Circular issued by the police), the police recommended at a chief justice in February 2003 encour- national meeting in September 2004 ages magistrates to visit prisons to that PAS extend its diversionary servic- detect illegal detention of suspects and es to all police stations. A shortage of accused persons and violations of human resources limited PAS to constitutional rights, and when such extending its services to only one addi- violations are uncovered to take neces- tional police station. Between 2004 sary action. In the same year, the and 2006, PAS facilitated the diver- chief justice issued a second Judicial sion of 354 juveniles. Circular requiring magistrates to Sixth, paralegals are expediting the check warrants of commitment in judicial process. Following paralegal

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clinics on homicide law and pleas, their hard work, and their impact on prisoners are now entering informed the atmosphere in the prison con- pleas to their charges, saving consider- tributed greatly to their gradual accept- able court time and expenses. In 2003, ance.39 Conducting joint trainings 33 homicide remandees indicated to with prison staff and paralegals, a paralegals they were ready to plead majority of prison officials have guilty to manslaughter, at which point reported that paralegals have won they were referred to the Ministry of their respect through their close atten- Justice’s Department of Legal Aid. tion to follow-up of individual cases After consultation with one of the with the police and courts, as well as seven lawyers in the department, 29 their discreet conduct. Generally, para- defendants entered guilty pleas and legals facilitate the release on bail of were sentenced.36 The actual savings many accused persons. Paralegals also for the judiciary because the trials help the speedy disposal of cases by were avoided was US$33,000.37 providing information to police and Finally, paralegals provoke ques- courts on specific cases. tions about resource management in Another key challenge to overcome the justice system. By working in was access to police stations, where partnership with the criminal justice most abuse against detainees takes agencies directly and through monthly place shortly after arrest. Initially, the meetings of the Court Users’ police were reluctant to cooperate and Committees, questions about the use allow their space to be invaded by of scarce resources are raised. A 2002 NGOs. This reluctance was overcome PAS report quoted one senior legal when PAS offered to assist the police professional as saying “without them trace parents/guardians of juvenile [the paralegals], the whole process suspects. Over the course of a 12- 38 would go back to sleep.” month pilot program in four police stations, paralegals worked with the Special Challenges police to trace parents and divert There were of course a number of young offenders. Abuse reportedly still obstacles to the introduction of PAS. occurs (especially in the police stations Before paralegals earned the apprecia- where PAS does not work), but the tion of the different agencies of the presence of paralegals has a deterrent justice system, they had to clarify and effect in the target police stations and advertise their benefits for each sepa- encourages greater professionalism rate institution. on the part of the investigating offi- In the prisons, initial mistrust cers. As with prisons, a strict code of could not be assuaged solely by the conduct guiding the work of the para- signing of a strict code of conduct. The legals while in police stations was daily presence in the prisons of parale- designed with the police service. gals, their willingness to work with Finally, the Malawi Law Society and through prison officers, their suc- fears and resents the perceived com- cess in following up individual cases, petition from the paralegals. The para-

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legals have attempted to defuse this Legal aid should be defined as broadly as concern by emphasizing that they do possible to include legal advice, assis- the work that does not need a lawyer tance, representation, education, and and, more attractively, create work for mechanisms for alternative dispute resolution; and to include a wide range of lawyers interested in criminal matters stakeholders, such as non-governmental by facilitating the preparation of cases organizations, religious and non-reli- and so enabling lawyers to focus on gious charitable organizations, profes- complicated issues where their time sional bodies and associations, and aca- and expertise can be used best.40 demic institutions.41

Sustainability of Paralegal The Lilongwe Declaration also Advisory Service Interventions emphasizes the scarcity of legal pro- The strategy for sustaining the work of fessionals as a reason to support paralegals. PAS has taken several tracks. One emphasizes the efficiency gains and It has all too often been observed that economic benefits of PAS to the there are not enough lawyers in African justice system as a whole. Another countries to provide legal aid services seeks to obtain recognition of the required by the hundreds of thousands paralegals as a professional cadre. of persons who are affected by the crimi- A third endeavors to create a role and nal justice systems. It is also widely rec- demand inside the legal profession for ognized that the only feasible way of paralegals. delivering effective legal aid to the maximum number of persons is to rely on The paralegals have been recog- non-lawyers, including law students, nized in two draft pieces of legislation paralegals, and legal assistants. These covering prisons and legal aid, which paralegals and legal assistants can pro- at the time of writing are yet to be vide access to justice system for persons passed into law. Moreover, the Malawi subjected to it, assist criminal defen- Law Society is considering the inclu- dants, and provide knowledge and train- sion of paralegals in a forthcoming ing to those affected by the system that review of the Legal Education and will enable rights to be effectively assert- Legal Practitioners Act of 1965. ed. An effective legal aid system should employ complementary legal and law- In 2004, PRI in conjunction with the related services by paralegals and legal Malawi Ministry of Justice and assistants.42 Constitutional Affairs organized the Lilongwe Conference titled “Legal Aid The growing pride in PAS as a in the Criminal Justice System in home-grown “export product” was evi- Africa: The role of lawyers, non- denced by the Minister of Justice, lawyers and other service providers.” Honorable Henry Phoya, in his speech The conference adopted the Lilongwe to open the Lilongwe Conference: Declaration on Accessing Legal Aid in the Criminal Justice System in Africa. It is thus an honor for the Malawi According to the Declaration: Government that Malawi Paralegal

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Pretrial Detention

Advisory Services has been internation- Another Rationale for Paralegals ally recognized by the UN Habitat Best Legal aid poses a vexing problem for Practices Awards that are given out every all governments because of its poten- two years. This recognition extends to tially high costs as crime rates and the our judiciary, prison and police services who are trying to make justice more number of accused persons increase. accessible to ordinary people of Malawi. Costs are spiraling because of the exponential growth in the number of The attractiveness of the experience defendants, and few cost-recovery of PAS abroad is helpful, too, in mechanisms work well because of promoting its institutionalization the economic disempowerment of the in Malawi. In sub-Saharan Africa, beneficiaries of the service. Some proponents of expanded access to legal representation therefore advertise the The PAS scheme has been replicated overall cost effectiveness of the service in Benin, Kenya, Uganda, and Niger and value for money. These benefits are not easily measured, but the role and PAS has been invited to start that legal aid can play as an engine prison-based pilot schemes in Lesotho, to improve the effectiveness and efficiency of the criminal justice sys- Liberia, Tanzania, and Zambia. tem cannot be overemphasized. The results achieved by PAS are telling: non-lawyers are cheaper than lawyers Malawi is far from unique in the small and can, given proper training, enable number of lawyers available.43 The people to defend themselves and PAS scheme has been replicated in provide appropriate advice and assis- Benin (2002), Kenya (2004), Uganda tance that benefit the maximum num- (2005), and Niger (2006) and PAS has ber of people. been invited to start prison-based pilot In a 2002 evaluation report PAS schemes in Lesotho, Liberia, Tanzania, was commended for using “relatively and Zambia. few resources to achieve maximum Still, the future of paralegals in benefit for users of the criminal justice Malawi is neither assured nor protect- system in Malawi. Through well ed by law. The real challenge for sus- focussed assistance, it marshals good- taining the interventions of paralegals will and resources already present in in the criminal justice system is lack of the system to best effect, by promoting funds. The government, criminal jus- a holistic view and furthering commu- tice agencies, and civil society organi- nication between actors.”44 The opera- zations are looking to donors for tional cost of one paralegal—salary, resources to design and implement stationery, transport, and communica- programs that would effectively tackle tion facilities—is less than US$450 pretrial detention and/or overcrowd- per month. During one month, a para- ing in penal institutions. legal can effectively have an impact on hundreds of cases.

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Conclusion ernment—and the limitation on its A review of paralegal services in Africa independence this implies—is a price concluded that “the Malawi Paralegal worth paying. Indeed, an evaluation of Advice Service (PAS) may be the PAS concluded that the “highly coop- strongest example of paralegals work- erative and trusting spirit” the parale- ing in cooperation with govern- gals have developed with the criminal ment.”45 The review warns, however, justice agencies is the key to its suc- 47 that “a close relationship with govern- cess and sustainability. This gives ment may cost in independence. PAS paralegals daily access to prisons and paralegals cannot, for example, com- detainees. Moreover, because PAS ment publicly about the conditions in seeks to assist the criminal justice sys- the prisons where they work; this is tem as a whole to function better, and one of the conditions under which not to find fault with individual agen- they are granted access.”46 cies in the system, its inputs and con- It would appear that in PAS’s case, tributions are valued by the justice sys- a close working relationship with gov- tem as a whole.

Notes

Clifford Msiska is director, Paralegal Advisory Service Institute, Lilongwe, Malawi.

1. For the purposes of this paper, a pretrial detainee is a prisoner who has been charged with a crime or crimes and is awaiting trial or the finalization of his trial by any court of first instance. The term “pretrial detainee” and “remand prisoner” are used interchangeably in this paper.

2. Since 1996, when there was an average daily population of 4,500 inmates and prisons were crowded, the population in custody has grown to over 10,500 in 2006 while only a few hundred prison spaces have been added as a result of the reopening of three old prisons.

3. Malawi has 15 judges of the High Court, 7 judges of the Supreme Court, and 171 magistrates for a population of approximately 13 million people.

4. According to the Malawi Legal Aid Society, Malawi had 185 certified legal practitioners in early 2006.

5. The homicide backlog number in the summer of 2006 was over 800 cases.

6. Files were with neither the police nor the Directorate of Public Prosecutions. See: Final Report on the Homicide Backlog (Lilongwe: The British Council, 1997); see also Michael Wines, “The Forgotten of Africa – Wasting Away in Jails Without Trial,” New York Times, November 6, 2005.

7. These three provisions are taken from, respectively, Articles 9(3), 14(2) and 14(3)(c) of the International Covenant on Civil and Political Rights, http://www.unhchr.ch/html/menu3/b/ a_ccpr.htm.

8. Section 42(2)(b) of the 1995 Constitution of the Republic of Malawi states that “Every person arrested for, or accused of, the alleged commission of an offence shall, in addition to the rights which he or she has as a detained person, have the right as soon as it is reasonably possible, but not later than 48 hours after the arrest, or if the period of 48 hours expires outside ordinary court hours or on a day which is not a court day, the first court day after such expiry, to be brought before an independent and impartial court of law and to be charged or to be informed of the reason for his or her further detention, failing which he or she shall be released.” Further, Section 42(2)(f)(i) states that: “Every person arrested for or accused of, the alleged commission of the

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offence shall, in addition to the rights which he or she has as a detained person, have the right to public trial before an independent and impartial court of law within a reasonable time after having been charged.” 9. Dirk van Zyl Smit, “Report of the Rapporteur General,” in Prison Conditions in Africa: Report of a Pan-African Seminar, Kampala, September 19–21, 1996 (Paris: Penal Reform International [PRI], 1997). 10. The Kampala Declaration on Prison Conditions in Africa, http://www.penalreform.org/publications/reports/brf-1996-kampala-declaration-en.pdf. 11. Paragraph 5(h) of the Plan of Action of the Kampala Declaration on Prison Conditions in Africa, http://www.penalreform.org/publications/reports/brf-1996-kampala-declaration-en.pdf. 12. Amanda Dissel, “Commentary on the Kampala Declaration,” in Prison Conditions in Africa (PRI, 1997). 13. Dakar declaration and recommendations, http://www.chr.up.ac.za/hr_docs/african/docs/achpr/achpr2.doc. 14. The Ouagadougou Declaration and Plan of Action on Accelerating Prison and Penal Reforms in Africa, 2002, http://www.achpr.org/english/declarations/declaration_ouagadougou_en.html. 15. See Juvenile justice in Malawi – Time for Reform? Findings of Paralegal case review of Juveniles in Malawi’s Prisons (CARER, September 1999); Dorothy Jolofani, Juvenile offenders: From Punishment to Rehabilitation. A Study of the Juvenile Court in Malawi, 1999 (unpublished). 16. Section 16(1)(i)of the Children and Young Persons Act of 1969 permits detention only in such circumstances. 17. Juvenile Justice in Malawi: Time for Reform, Report of the Regional Seminar, Lilongwe, November 23–25, 1999 (Lilongwe: PRI), 21–22 and Annex 2, fact sheet 1. 18. Ibid., 39, para. 4. 19. Ibid., 43, para. 6. 20. These NGOs are: Eye of the Child (EYC); Malawi Centre for Advice, Research and Education on Rights (CARER); Centre for Legal Assistance (CELA); and Youth Watch Society (YOWSO). 21. PAS paralegals must hold a high school diploma and undergo a month-long legal training course. 22. The PAS advisory council comprises the chief commissioner of prisons, the chairperson of the Prison Inspectorate, the chairperson of the Core Group on Criminal Justice Reform, the chairperson of the National Juvenile Justice Forum, the Director of Public Prosecutions, a representative of the Legal Aid Department, the head of prosecutions for the police, and the four chief resident magistrates who are responsible for each judicial region of Malawi. 23. Adam Stapleton, Reducing Pre-trial Detention. An Index on ‘Good Practices’ developed in Africa and elsewhere, (PRI, 2005), 41, http://www.penalreform.org/publications/manuals/man-2005- pretrial-detention-en.pdf. 24. Adam Stapleton, Energizing the criminal justice system. Malawi’s paralegal advisory service, http://www.id21.org/id21ext/insights43art6.html. 25. Ibid. 26. Ibid. 27. Stapleton, Reducing Pre-trial Detention, 32. 28. Ibid., 42; see also Hillery Anderson, “Justice Delayed in Malawi’s Criminal Justice System. Paralegals vs Lawyers,” International Journal of Criminal Justice Sciences 1, Issue 1 (January 2006), 5. 29. Thomas Hansen, “Independent evaluation 2 of the PAS for DFID” (Copenhagen: Danish

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Institute for Human Rights [DIHR], 2004), 3.

30. Fergus Kerrigan, “Independent evaluation 1 of the PAS for DFID” (DIHR, 2002).

31. Ibid., 23; see also Freedom inside the walls (video, 51 min.), English/French (PRI, 2005).

32. The word “court” posed a problem in Malawi, and the formulation “Prison Screening Session” was adopted to describe more accurately the function of this mechanism and avoid any suggestion that bail decisions are being made hidden from public view.

33. Stapleton, Reducing Pre-trial Detention, 59.

34. Judicial Circular No. 1 of 2003, Ref. No. H/C/CJ/143, para.2.

35. Judicial Circular No. 2 of 2003, Ref. No. H/C/CJ/143, paras. 1 and 2.

36. One decided not to plead and three were not produced at court on the day.

37. In 2005, PAS-PRI further submitted a note to the Chief Justice, Legal Aid, and DPP office on ways to clear the homicide backlog. A review of cases by the paralegals showed that almost half of the caseload could be disposed of, including 30 percent by way of plea, another 10 percent could be dismissed because the defense was irredeemably prejudiced by the delay in trial over which the defendant had no control; and an additional 8 percent could be dismissed as they had yet to be committed for trial and for the same reasons the defense was prejudiced.

38. Kerrigan, “Independent evaluation 1” (DIHR), 44.

29. Of the paralegals 40 percent are women. They work in the male sections of the prisons. Prison officers have remarked how the presence of women (many of whom are in their early 20s) calms prisoners and relaxes the prison atmosphere.

40. Despite requests from the judiciary, PAS does not appear in the lower courts on behalf of accused persons, in part because legal representation is seen to be the strict province of trained lawyers, but mainly because it is not an efficient use of the time of the paralegal, who could be tied up in a court that may deal with 3 to 5 cases in the course of a morning. PAS aims at a ratio of one paralegal for every 100 prisoners.

41. The Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa (Lilongwe, 2004), para 1, http://www.law.northwestern.edu/legalclinic/LilongweLegalAidDeclara- tion.pdf. The Lilongwe Declaration was adopted at the 40th Ordinary Session of the African Commission on Human and Peoples’ Rights, held in Banjul, November 2006.

42. The Lilongwe Declaration, para 7.

43. Niger has 77 lawyers for 11 million inhabitants, Tanzania has 723 for 35 million, and Senegal has 300 for 10 million. Only South Africa (17,500 for 45 million) and Kenya (4,000 for 33 million) have adequate numbers of trained lawyers, and yet in these countries, too, lawyers are overwhelmingly concentrated in the major cities and towns.

44. Kerrigan, “Independent evaluation 1” (DIHR), 3.

45. Vivek Maru, Between Law and Society: Paralegals and the Provision of Primary Justice Services in Sierra Leone, (New York: Open Society Justice Initiative, 2006), 26.

46. Ibid, 26.

47. Stapelton, Energizing the Criminal Justice System, http://www.id21.org/id21ext/insights43art6.html

Justice Initiative 85 Pretrial Detention

Building and Sustaining Change: Pretrial Detention Reform in Nigeria

Pretrial detainees account for nearly persons accused or suspected of seri- two-thirds of Nigeria’s prisoner popu- ous offenses such as capital crimes or lation. Anthony Nwapa reports on an rape, are not uncommon. innovative pilot project that addresses This paper describes the problem the root causes of the country’s pretri- of pretrial detention in the Nigerian al detention crisis. prison system, analyzes its origins and causes, and reports on a project initi- Three outstanding features charac- ated by the Open Society Justice terize Nigeria’s prison and criminal Initiative and the Nigerian Legal Aid justice systems. First, its total number Council to address this problem on a of 40,000 sentenced prisoners and sustainable basis. pretrial detainees is relatively small for a country with a population of some 130 million people. Second, a dispro- Country and Institutional portionately high number of Nigeria’s Background prisoners are pretrial detainees. For Nigeria is a Federal Republic com- the last two decades, pretrial detainees prising 36 states and the Federal have composed nearly two-thirds of Capital Territory, Abuja. Nigeria occu- the country’s overall prison popula- pies an area of 924,000 square kilo- tion. Third, pretrial detention in meters, inhabited by more than 130 Nigeria is unduly prolonged, with an million people comprising 250 ethnic average duration of 3.7 years per and national groups, of whom an esti- detainee (Table 1). Pretrial detention mated 60 percent subsist below the periods of over 10 years, especially for poverty line. While a majority of the

Table 1: Nigerian Prison Statistics, January 2006 1

Total prison population 40,444 Number of remand (awaiting trial) prisoners 26,289 Number of sentenced persons 14,155 Overall average duration of pretrial detention 3.7 years

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Table 2: Role Allocation in the Nigerian Criminal Justice System Activity/Role Responsible institution Location Investigation Police Federal Arrest Police Federal Evidence collection Police Federal Detention/Custody Police/Prisons Federal Legal Advice & Prosecution Police/Ministry of Justice (Attorney-General) Federal/State Criminal Trial Courts Federal/State Appeals Courts Federal/State Sentence/Imprisonment Prisons Federal population lives in rural areas, the ernment and states have concurrent country is undergoing a process of legislative powers over matters in the rapid urbanization. Concurrent Legislative List, federally Until the advent of a civilian applicable legislation supersedes state administration in 1999, Nigeria was legislation in cases of conflict on the ruled by the military for all but 10 of same subject. The federal government its first 39 years as an independent is precluded from legislating or mak- country, through a succession of seven ing policy on matters outside the enu- military rulers, six successful military merated matters in the Exclusive and coups, and several unsuccessful coup Concurrent Legislative Lists. attempts. This record of prolonged Criminal justice administration political instability undermined the lies within the concurrent powers development of constitutional rights of the federal and state governments. and the institutions for their protec- The principal investigating agency tion, including, especially, the police, for all crimes is the Nigeria Police the courts, and other agencies of the Force (NPF), which is an exclusively criminal justice system. federal institution. The police have exclusive powers over the collection, To understand the mechanics of analysis, and preservation of evidence. pretrial detention in Nigeria, it is nec- When investigation of a case involves essary to understand the distribution the arrest or detention of suspects, of responsibilities within the criminal the police and prisons—both federal justice system in Nigeria’s federal institutions—exercise these powers structure. Nigeria has three tiers of (Table 2). government: the federal government, The prosecutorial authorities evalu- states, and local governments. The ate the evidence collected by the powers of the federal government are police, with ultimate control over enumerated in the Exclusive criminal prosecution belonging to the Legislative List of Nigeria’s 1999 respective ministries of justice. The Constitution. While the federal gov-

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federation and the states have min- allocations between mutually adver- istries of justice each headed by an sarial state and federal institutions, attorney-general and minister of jus- and skill and material constraints, in tice at the federal level, and state attor- the personnel and institutions of neys-general and commissioners for the system. Nigeria’s criminal justice justice at the state level. A Directorate system may exist in law, but the day-to- of Public Prosecutions that advises day practice of law enforcement which cases may or may not be taken bears no relationship to the process further to prosecution supervises contained in the constitution and criminal prosecution in these min- the laws. istries. Upon conclusion of an investi- Nigeria’s 1999 Constitution gation, the police forward the case file requires that accused persons be tried within a reasonable time. Police can detain suspects for no more than 48 hours, after which they must be Police can detain suspects for no more arraigned before a court. However, than 48 hours, after which they must be many detainees in police custody arraigned before a court. But many detainees are held for much longer periods, often for up to one year or longer. are held for up to one year or longer. After arraignment, accused persons may be held interminably in detention. There are four principal reasons for this state of affairs. to the appropriate director of public First, law enforcement practices prosecutions (DPP) for legal advice. are out of step with existing legal Although the police and prisons are standards. Suspects should only be federal institutions, most crimes are arrested if a police investigation links state crimes that are tried within state them to a crime. In Nigeria, however, courts. The resulting asymmetry in arrests trigger investigation. Detainees the allocation of responsibilities are kept in custody while the police between federal and state institutions claim to investigate and seek the certi- lies at the heart of Nigeria’s pretrial fication of the Director of Public detention crisis. Prosecutions as to whether or not to prosecute. Sometimes, securing this The Problem: A Diagnosis of the certification may take more than five Pretrial Detention Crisis years. Pending this certification, sus- Entry into the criminal justice system pects remain detained. Moreover, in Nigeria is easy. Once inside, sus- understaffed and underresourced, pects easily become entrapped in pro- Nigeria’s police lack the facilities longed periods of pretrial detention. to conduct effective investigations. Nigeria’s pretrial detention crisis is Complainants, therefore, often have to caused by a combination of factors, fund criminal investigations, includ- including both the asymmetry of role ing paying for the transportation and

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communication costs of investigating witness. Although empowered to con- police officers, as well as the stationery trol prosecutions, the state DPPs have used to record statements. In the no control over the federal officials on absence of an appropriate environ- whom they depend to do their work ment for investigations, the police rou- effectively. tinely subject suspects to diverse Interagency communication fail- forms of torture and coercion to ures compound the problem of pretri- encourage self-incriminations and al custody. Often, case files go missing confessions. between the police and the state DPPs. Second, after arrest, the police, Many detainees do not have records knowing that they have yet to under- of their arrest and are uncertain of take an investigation, often arraign the criminal charges pending against suspects before courts that lack jurisdiction to try them but nevertheless commit them to custody pending There is a near total failure of coordination completion of the police’s investigation. There is no requirement for and information management between the these courts to set time limits for com- various state and federal agencies involved pletion of investigation or for monitoring of the duration of pretrial custody. in the criminal justice process. In effect, suspects suffer judicially sanctioned indefinite detention. Third, there is a near total failure of coordination and information them. Without such records, they management between the various are held interminably. A presidential state and federal agencies involved in committee that audited Nigeria’s the criminal justice process. The prison system in 2005 found that 3.7 police, a federal agency, have primary percent of pretrial detainees were in responsibility for investigating crimes custody because their case files were and collecting, cataloguing, and stor- missing; 7.8 percent because the IPO had been transferred; and another ing evidence. Over 90 percent of 17 percent because of delays in the recorded crimes are state crimes, pros- investigation.2 ecuted by state-level prosecutors. Trial courts are mostly state courts. Cases Fourth, most suspects do not are often stalled interminably—for receive access to legal advice or repre- instance, because the Investigating sentation early in their contact with Police Officer (IPO), a federal employ- the police, who, in turn, do their ee, is transferred from one state to best to deny them access to any form another without notification to the of contact with family or legal repre- state prosecutors with whom the IPO sentatives until after they have incrim- is working on a case or to the judges of inated themselves. The 2005 presi- state courts before whom the police dential committee found that nearly officer will be required to appear as a three-quarters of suspects in pretrial

Justice Initiative 89 Pretrial Detention

custody do not have legal representa- designed to promote this coordination.3 The state-funded Legal Aid tion. The decree established federal Council, with a presence in all of and state Administration of Justice Nigeria’s states, has very limited cover- committees, chaired by the chief jus- age of law enforcement precincts. tice at the federal level and state chief The average accused person cannot judges at the state level. These com- afford private legal representation. mittees are made up of representatives from the police, prisons, the attorney- Previous Reform Efforts general at the federal or state level, as The Nigerian government, at all levels, well as representatives of the Legal Aid has failed to develop effective inter- Council and the Bar Association. ventions to address the country’s pre- However, this Decree was accompa- trial detention problem. The preferred nied by very little public or policy com- governmental intervention has mostly munication and the committees have been the ad hoc delivery or release of largely failed to meet or function. detainees by ministerial committees In due course, the Criminal Justice or judicial intervention. In the two (Release from Custody) (Special decades between 1986 and 2006, Provision) Decree evolved into a there have been several such ad hoc means of “rent” collection for prison releases of pretrial detainees. personnel who would not put forward Under the Criminal Justice cases for consideration by the chief (Release from Custody) (Special judges on their occasional jail delivery Provision) Decree of 1977, the chief visits until the detainees had paid justice of Nigeria and the chief judges some prescribed fee or bribe. of the states of the federation are man- Moreover, most chief judges and the dated to release from detention any chief justice do not undertake regular person whose detention is manifestly jail delivery exercises. Above all, with unlawful or of longer duration than no monitoring or control of the supply the person would have spent in prison chain for pretrial detainees, new if convicted. However, as prisons are detainees quickly fill the space vacated federal institutions under the control by the few detainees occasionally of a Federal Ministry of Internal released by ministerial or judicial Affairs, this law does not provide any intervention. coordination mechanism between the Articulate nongovernmental advo- state judiciaries and the federal pris- cacy for reform of Nigeria’s prisons ons. The law also fails to provide for generally, and the pretrial detention any mechanism of monitoring prison pathology in particular, began in the populations in order to equip the chief late 1980s. By 1990, the Civil Liberties justice or state chief judges to exercise Organisation (CLO) crystallized the their power effectively. A federal emergence of this voice for prison Administration of Justice Decree reform in a seminal report on the adopted in 1993 was ostensibly Nigerian prison system.4 The report

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called attention to the pretrial deten- with the police, the tendency to charge tion crisis and advocated for focused suspects for custodial committal policy action to change it. Following before courts without trial jurisdic- publication of the report, the Nigerian tion,5 the lack of a firm cap on the government again established an ad duration of pretrial detention, and the hoc ministerial committee to under- dearth of skills and resources available take prison reform, headed by a retired to the system. Supreme Court justice. Like that of It is against this background that others before and since, the work of the Open Society Justice Initiative, the committee effectively failed to working with Nigeria’s Legal Aid change the pretrial detention situation Council and the NPF, has sought in Nigeria. to address the pretrial detention crisis Among nongovernmental organizations, litigation to secure the release of pretrial detainees became the pre- Any attempt to confront the problem dominant response. Such efforts, however, became bogged down in of pretrial detention in Nigeria must Nigeria’s notoriously slow and adver- address its root causes rather than sarial court process. Pretrial detention just the obvious symptoms. delivery cases routinely take over five years to come to judgment. Litigation on behalf of detainees thus proved ineffective in reducing the number in Nigeria. The resultant Project of pretrial detainees. Even where for Reform of Pretrial Detention detainees get favorable judgment, they and Legal Aid Service Delivery in are routinely rearrested as soon as Nigeria (“the project”) focuses on they are granted bail by a court and the improved management of the charged with a serious offense with pretrial process through better a view to denying them bail. Thus, information management, improved a revolving door effect develops: sus- communication and coordination pects are arrested, detained, granted between the criminal justice agencies, bail, rearrested, and detained. effective legal representation for arrested suspects and detained defen- 6 An Innovative Approach dants, and legislative reform. It is evident from this analysis that any In summary, the project works with attempt to confront the problem of the police and the states’ justice min- pretrial detention in Nigeria must istries to establish a case file manage- address its root causes rather than just ment system from the moment of the obvious symptoms. These root arrest and identifies key steps to causes include the lack of coordination ensure that a case file moves expedi- among the principal criminal justice tiously from one agency to another entities, lack of legal representation and from one level of administration for detainees at the point of contact to another. The project’s Duty Solicitor

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Scheme places lawyers on 24-hour call mechanisms in relevant criminal jus- at designated police stations to provide tice agencies as tools for addressing legal assistance to suspects. Project- the problem of lengthy pretrial deten- inspired Practice Directions issued by tion. The project also promotes intera- state chief judges mandate judicial gency cooperation, provision of skilled monitoring of pretrial custodial orders legal manpower, capacity develop- and limit their duration to nine ment, and internal monitoring/man- months. Draft legislation promoted by agement mechanisms. The project, the project proposes a statutory cap on moreover, is working toward the pretrial detention of not more than institutionalization of these tools one month. and processes through legal reform to secure an enduring change in the management of pretrial detention in Nigeria. The project’s Duty Solicitor Scheme places In December 2004, the project lawyers on 24-hour call at police stations to undertook a national interagency consultation among the principal provide legal assistance to suspects. institutions of Nigeria’s criminal justice system.8 Similar interagency consultations followed in the four pilot states. The aim of these high- Intervention level meetings was to secure an inter- The project was launched in agency commitment to common diag- September 2004 as a two-year pilot in noses, goals, and objectives and to four states: Ondo, Imo, Kaduna and develop an implementation strategy. Sokoto, with the intention of extend- Following deliberations that sought ing its footprint incrementally to other to identify the causes of lengthy pretri- states of the federation. The project al detentions in Nigeria and assess seeks to reduce both the number of previous attempts to overcome it, each pretrial detainees as a proportion of interagency consultation developed a the overall prison population and the plan of action endorsed by the partici- average duration of detention. The pating criminal justice agencies. Each project also seeks to improve coordi- plan of action recognized that the nation and harmonization between major obstacle to earlier attempts at agencies of the criminal justice system reform of pretrial detention was the to ensure the prompt arraignment and lack of interinstitutional communica- prosecution of defendants (or the tion and coordination among the dif- dropping of charges). ferent criminal justice agencies. The project deploys trained lawyers As supplementary objectives, the from the Legal Aid Council and the project sought to contribute to the National Youth Service Corps.7 reform of legal aid delivery in Nigeria The project designed and implement- and ministerial-level work on the ed monitoring and management reform of the administration of crimi-

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Table 3: Baseline Data on the Duration of Pretrial Detention in Pilot States11

Project >5 but >3 but >1 but >6 mts but % of PTDs >1 year in pilot Total no. >10 yrs in 10 yrs in≤ 5 yrs in 3 yrs in 1 yr in >1 year in states of PTDs detention detention detention≤ detention≤ detention≤ detention custody

Imo 1,044 20 243 179 432 170 874 83.7%

Ondo 671 6 72 107 268 218 453 67.5%

Kaduna 774 - 20 71 263 420 354 45.7%

Sokoto 622 1 21 40 102 485 137 22.0%

Total 3,111 27 356 397 1,065 1,293 1,818 58.4%

% 100% 0.9% 11.4% 12.8% 34.2% 41.6% 58.4%

nal justice.9 Two separate working periodic review of cases of pretrial groups were established under the detainees to reduce the duration of auspices of the federal Ministry of pretrial detention. Justice to work in collaboration with Pending the passage of these bills the project team to develop a into law, the project embarked on a legislative basis for the reform of the fast-paced roll-out of its activities in criminal justice system. Two sets of the four pilot states. The states were legislative proposals—a Legal Aid selected to reflect different patterns of (Amendment) Bill and the pretrial detention concentration in Administration of Criminal Justice Nigeria. Working with the Prisons Bill—were developed. The Service in each pilot state, the project Administration of Criminal Justice Bill collected baseline data on the size and seeks to limit the period of pretrial duration of the pretrial detention prob- detention to a maximum duration of lem at the beginning of the project one month irrespective of the alleged (Tables 3 and 4). Obtaining these fig- offense, as opposed to the present ures was the first evidence of progress practice in which pretrial detainees in developing the institutional rela- stay in custody for indefinite periods.10 tionships required for the project to The Legal Aid (Amendment) Bill succeed. seeks to augment the services provided by about 90 lawyers of the Legal Aid Council of Nigeria with 1,000 Capping Pretrial Detention and national service lawyers annually to Managing the Holding Charge provide legal representation to pretrial Persons accused of capital offenses are detainees. The legislation further disproportionately subjected to long provides for custodial monitoring and durations of pretrial detention (Table

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Table 4: Baseline Data on the Duration of Pretrial Detention for Persons Charged with Capital Offenses in Pilot States12

No. of PTDs No. of PTDs No. of PTDs No. of PTDs alleged for alleged for alleged for No. of % of PTDs alleged capital capital capital PTDs in alleged to for capital offenses offenses offenses detention have commit- offenses >3 but >1 but >6 mts but Project Total no. for capital ted capital >5 yrs in 5 yrs in 3 yrs in 1 yr in pilot states of PTDs offenses offenses custody ≤custody ≤custody ≤custody

Imo 1,044 692 66.3% 230 136 307 19

Ondo 671 490 73.0% 78 108 204 10

Kaduna 774 314 40.6% 20 79 132 83

Sokoto 622 175 28.1% 20 42 110 3

Total 3,111 1,671 53.7% 348 365 753 115

4).13 This is made possible by a proce- resulting patronage of the judiciary dure known as a holding charge, is abused to the extent that the police which arises when a suspect is and the prosecutorial authorities do brought before a court that has no trial nothing after magistrates have issued jurisdiction for the alleged offense. a remand order. The court declines jurisdiction to try Corruption further reinforces the the offense but orders the suspect to inequity of the holding charge process. be remanded in custody pending the On most occasions, once a magistrate conclusion of the investigation and the remands an accused person to deten- filing of a proper charge before a high- tion, the police fail to complete the er court with trial jurisdiction on the investigation and the filing of a charge matter. This procedure, which encour- in a timely manner, often failing to act ages indefinite pretrial detention, is until induced or bribed by the accused authorized by the states’ criminal pro- or his/her relatives. Some corrupt cedure laws.14 police officers indiscriminately arrest It can be argued that magistrates persons and detain them in police are statutorily encouraged to assist the cells only to invent unsubstantiated police and prosecution to delay the capital charges for such persons if process of arraignment of a suspect they fail to offer bribes or other mate- before a court with trial jurisdiction. rial inducements. As the Criminal This contributes to the long period Procedure Law makes it mandatory of pretrial detention, especially for for magistrates to remand capital persons suspected of having commit- cases, suspects are not given the ted capital offenses. Most often, the opportunity to state their side of the

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case. Thus begins the journey into ticipation and cooperation of the prolonged and indefinite pretrial cus- police institutionally. In April 2005, tody. Furthermore, corrupt police offi- the inspector-general of police cers routinely insist on bribes before instructed police commands in the they discharge suspects whom investi- project states to give unhindered gation proves to be innocent. Without access to project lawyers to visit police proper monitoring by the agencies of cells and to interview and offer legal administration of criminal justice advice and assistance to the inmates, and/or legal advice and intervention with a view to effecting the release of from lawyers representing them, such those unlawfully detained. Previously, suspects can languish in detention indefinitely. To respond to this situation, the The most critical element of the project project team reasoned that if magis- was enlisting the full participation and trates could issue custodial orders without having trial jurisdiction, they cooperation of the police. ought to be able to exercise jurisdiction to monitor the progress of the police investigation. Consequently, lawyers were routinely rebuffed, and the project successfully lobbied for the sometimes even assaulted, at police promulgation of practice directions stations and were asked to go to court issued by state chief judges, as the if they had any complaint on behalf of chief administrative officer of the judi- suspects. ciary, to magistrates. These practice Building on this, in December directions require magistrates not hav- 2005, the Justice Initiative and the ing trial jurisdiction to recall all pretri- Legal Aid Council of Nigeria collabo- al detention orders for periodic review rated with the inspector-general of not more than three months after the police to organize a conference on a order and to discharge the suspect or Police–Duty Solicitor Scheme for the transfer the case to a court with trial Police High Command. The confer- jurisdiction if charges have not been ence enjoyed the attendance of and filed by the third recall and review of contributions from the police at its the case file. Effectively, this caps the highest command levels, including all duration of pretrial detention at deputy inspectors-general of police between nine and 12 months. At the and commissioners of police in the time of writing, the model practice 36 states and Federal Capital Territory. direction developed by the project has At the conference, the inspector-gener- been adopted and is operational in al publicly committed the police to three of the pilot states. humane and lawful investigation procedures and working fully with The Police—Duty Solicitor Scheme the project to achieve this. As a result Arguably the most critical element of of the conference in June 2006, a the project was enlisting the full par- Memorandum of Understanding

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Pretrial Detention

Table 5: Pilot Site Data before Project Intervention: March/April 200516

Project Average no. of days in pilot states No. of detainees detention per detainee Total no. of detention days

Imo State 1,044 1,061 days 1,107,684 days Ondo State 671 627 days 420,717 days

Kaduna State 774 291 days 225,234 days

Sokoto State 622 228 days 141,816 days

Total 3,111 609 days 1,894,599 days

(MoU) between the NPF, the Legal Aid leading to the quick determination of a Council, and the Justice Initiative matter. To ensure the effective imple- for the formal establishment of the mentation of the program, the MoU Police–Duty Solicitor Scheme in creates the Duty Solicitor Advisory the major police precincts of Nigeria Committee.15 This committee meets was signed. every three months with the commis- Under the terms of the MoU, duty sioner of police and the Legal Aid solicitors are stationed at designated Council supervisor in the state to police stations under a 24-hour duty review, advise on, and resolve any out- schedule supervised by the Legal Aid standing issues. Council. The duty solicitors employ Project lawyers are involved in their knowledge, professional skills, many other activities, including mak- and experience to intervene and advo- ing applications to the police, the cate on behalf of suspects/detainees at Director of Public Prosecution, and police stations by securing their rights the courts, advocating for bail or under the law and by ensuring that the discharge of pretrial detainees on highest standards of respect for their grounds that those detainees have dignity are maintained. According to no case to answer or for want of dili- the MoU, the responsibilities of the gent prosecution. They may also apply duty solicitors are complemented by under the Fundamental Human the duties imposed on the NPF. Thus, Rights (Enforcement Procedure) the NPF is obligated through its police Rules through which the court releas- liaison officers to ensure that suspects es unconditionally pretrial detainees are given access to duty solicitors with- who are unlawfully detained. Project in the police stations. lawyers, in collaboration with the NPF The MoU further imposes on the and DPP in the state, also undertake a police an obligation to assist duty monthly administrative review of case solicitors with obtaining information files of pretrial detainees. This exercise

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Table 6: Pilot Site Data: December 2005 17

No. of detainees Average Reduction % in prison No. of period in Average in avg. Reduction custody releases No. of days detention baseline period of in average when from in detention of project period in pretrial duration Project project prison of project beneficiaries detention detention of deten- pilot states began custody beneficiaries (days) (days) (days) tion

Imo State 1,044 77 21,884 123 1,061 938 88% (7.4% decrease)

Ondo State 671 152 135,228 436 627 191 31% (22.7% decrease)

Kaduna State 774 236 9,806 40 291 251 86% (30.5% decrease)

Sokoto State 622 146 47,030 89 228 139 61% (23.5% decrease)

Total 3,111 611 213,948 171 609 438 72% (19.6% decrease) seeks to reduce the number and dura- early outcomes, however, are encour- tion of pretrial detentions in both aging. Within its first year of opera- police cells and prison. tion, the project recorded significant The periodic reports of the project successes in many areas. Notable team and its lawyers to the chief among them is the marked improve- judges of the state, who have powers ment in the project team’s relationship to undertake periodic jail delivery exer- with the police. The model practice cises, have led to the release of numer- direction prepared by the project has ous pretrial detainees who would have been adopted in three states (Imo, remained in detention if not for these Ondo, and Sokoto) and is under consideration in Kaduna, Plateau, and interventions. The project’s engage- Rivers states. The practice direction ment with the NPF, at both the nation- creates a management review mecha- al and state levels, has led to better nism through which the judiciary (i.e., monitoring of incidents of abuse per- the magistrates) control and manage petrated by some personnel of the the remand orders issued by them. force. Professionalism is gradually The practice direction also protects the being introduced into police investiga- constitutional rights of suspects to tion, thereby reducing delays in inves- personal liberty and due process by tigations and arraignment. contributing toward the prompt arraignment and prosecution of Impact Evaluation accused persons. It is arguably too soon to assess defin- In addition, the project has secured itively the impact of the project. The substantial and measurable successes

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Table 7: Releases from Pretrial Detention in Project States, April—December 2005

No. of pretrial detainees in No. of releases from Project states prison custody prison custody % Released Imo 1,044 77 7.4%

Ondo 671 152 22.7%

Kaduna 774 236 30.5%

Sokoto 622 146 23.5%

Total 3,111 611 19.6%

in terms of the numbers of persons Moreover, in March/April 2005 the released or diverted from pretrial cus- total average period in detention tody, as well as in the mean duration of before the project intervention in the pretrial detention. The relevant figures four pilot states was 609 days (20 are contained in Tables 5 and 6. months) per detainee. The total aver- Before the project commenced, in age period in detention in the pilot March/April 2005, there were 3,111 states had declined to 171 days (5.7 months) per detainee (or “project ben- persons in pretrial detention in the eficiary”) by December 2005. four pilot sites. Together they had spent almost a cumulative 1.9 million Note: In addition to the above-listed releases of detainees held in custody days in detention—or an average of in prison, over the same period 644 609 days or 20 months per detainee detainees held in police cells were also (Table 5). released from custody: Ima state (100 By December 2005, the project had detainees); Ondo state (158); Kaduna secured the release of 611 detainees state (7); and Sokoto state (379). from prison custody, plus an addition- Out of the baseline total of 3,111 al 644 persons from police custody detainees awaiting trial at the begin- (Table 6). Table 6 further shows that ning of the project cycle in the four the project achieved a significant pilot states, the project effected the reduction in the average duration of release of 611 detainees awaiting trial pretrial detention in the pilot states in under one year. This represents a of Imo (–88 percent), Ondo (–31 per- 19.6 percent decrease in the baseline cent), Kaduna (–86 percent) and number of persons awaiting trial in Sokoto (–61 percent). those states.

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Table 8: Releases from Pretrial Detention in Nonproject States by the Legal Aid Council in 2005 18

No. of pretrial detainees in No. of releases from Project states prison custody prison custody % Released Edo 384 25 6.5%

Taraba 401 69 17.2%

Osun 222 25 11.3%

Total 1,007 119 11.8%

The number of releases recorded in Pretrial Detention Diversions other states of the federation, where Apart from ensuring the release of the project is not being implemented, pretrial detainees, the project lawyers is not as impressive. The Legal Aid have sought to reduce the supply side Council of Nigeria is the local princi- of the inflow of detainees into prison. pal partner in this project. A compari- Thus, apart from the aforementioned son of the data in Tables 7 and 8 releases from prison custody, in 2005 demonstrates that the intervention of the project succeeded in ensuring that the project favorably influenced the 100 (Imo), 150 (Ondo), 7 (Kaduna), number of persons released from pre- and 379 (Sokoto) pretrial detainees trial detention in the project states were not taken to a magistrates’ court, (Table 7), compared to states where the where they would have been remand- project is not being implemented ed in prison custody at the mercy of (Table 8). Thus, in the project states the police and the Directorate of almost 20 percent of detainees were Public Prosecution. This was achieved released during 2005 (Table 7), com- by advocacy efforts of project lawyers pared to 11.8 percent in nonproject states (Table 8). at police stations leading to the discharge of the complaint against the The lawyers in both project and suspect as being frivolous and inca- nonproject states work with the pable of sustaining a charge. Legal Aid Council of Nigeria. The difference in performance as revealed in Tables 7 and 8 is attributable to the Conclusion: Sustaining Change innovations and infrastructure intro- The intervention pioneered by the duced by the project. project will need to be sustained by

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legal and institutional reforms. The evidence of a new partnership Administration of Criminal Justice between governmental and non- and the Legal Aid (Amendment) Bills governmental entities in addressing are designed to achieve this. Some the pretrial detention problem in interventions will also need to be Nigeria. Partnerships of this type are entrenched through administrative vital to ensuring the sustainability processes, training, and sound mana- of this initiative. Ideally, more civil gerial practices. For instance, the society organizations will become Practice Direction, which has been involved with the project as it is adopted by three states, has been replicated in other states. entrenched as a mechanism to moni- At the time of writing, the project is tor and cap the duration of precustodi- expanding to two more states (Plateau al orders. On the part of the police, and Rivers), bringing the number of efforts are already in place to update pilot states to six by the end of 2006. their compliance with human rights The project has also inspired a standards through the establishment Nigerian civil society initiative, Rights of Human Rights Sections at the Enforcement and Public Law Center Divisional, Area, and State Command (REPLACE), devoted to addressing the Levels of the NPF, as well as through pretrial detention crisis in Nigeria in the proper training and reorientation partnership with the NPF, the judici- of officers and personnel in line with ary, and other government institu- the norms of democratic policing and tions. To ensure that the capacity for the rule of law. As a result of this, the coordination is sustained, the project syllabus of police training institutions has worked with the federal and state has been revised to entrench instruc- criminal justice institutions to design tions on human rights. Finally, a spe- a Criminal Justice Information System cial investigation team of the NPF (CRIMSYS) software package to cap- (known as the X-squad) has been reor- ture and manage information within ganized to ensure the effective moni- the criminal justice system with a view toring and sanctioning of deviant to stemming the pretrial detention police officers. 19 phenomenon. Roll-out of this system The Memorandum of Understand- began in August 2006 in Imo and ing for the implementation of the Sokoto states and is planned for Police–Duty Solicitors Scheme signed Plateau and Rivers states and the by the NPF, the Legal Aid Council of Federal Capital Territory in 2007. Nigeria, and the Justice Initiative is

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Notes

Anthony Nwapa is a solicitor and barrister of the Supreme Court of Nigeria; LL.M (Human Rights); consultant and fellow of the Open Society Justice Initiative; and coordinator for the Reform of Pretrial Detention and Legal Aid Service Delivery in Nigeria Project. The author acknowledges the fruitful partnership of the Nigeria Police Force, the Legal Aid Council, and the Open Society Justice Initiative in the project. He also ackowledges the kind assistance of Felicitas Aigbogun, Chidi Odinkalu, and Maxwell Kadiri in both the project and the preparation of this report.

1. Data derived from the press briefing of the Honorable Attorney General and Minister for Justice, Chief Bayo Ojo San, and as contained in the Report of the Presidential Working Group on Prison Reforms and Decongestion (Abuja, February 2005), 6, 49.

2. Report of the Presidential Working Group (February 2005), 6–7, 73.

3. Ibid., 6.

4. See Chidi Anselm Odinkalu and Osaze Lanre Ehonwa, Behind the Wall: A Report on Prison Conditions in Nigeria and the Nigerian Prison System (Lagos: Civil Liberties Organisation, 1997).

5. This phenomenon, known as the Holding Charge, is discussed in detail below.

6. The project is a collaborative undertaking between the Justice Initiative, the Legal Aid Council of Nigeria, the judiciary, the federal Ministry of Justice, the Directorate of Public Prosecution in the states, the Nigerian Bar Association, the Nigerian Police Force, the Nigerian Prison Service, civil society representatives, the National Youth Service Corps, and the National Working Group on Legal Aid Reform.

7. National Youth Service Corps lawyers are relatively new members of the Nigeria Bar Association who are on compulsory national service for one year. Such lawyers are not paid salaries but are given a monthly state allowance to augment their stipends from their places of primary assignment. As their primary assignment is under the project, they are given monthly stipends by the project.

8. That is, the judiciary, police, prisons, the prosecution service, and the Legal Aid Council.

9. Nigeria’s federal attorney-general constituted a National Working Group on Legal Aid Reform in 2004, with a mandate of reviewing and updating the Legal Aid Act and improving legal aid delivery in line with best practices internationally.

10. See Report of the Presidential Working Group on Prison Reforms and Decongestion (Abuja, February 2005), 49.

11. Data derived from analysis from the office of the Nigerian Comptroller-General of Prisons with reference numbers PHOND: 66/VOL.III/81; PHK.91/VOL. XTX/516; PHS.676/VOL. 2/349; ISPH/66/VOL. XV/75, 6 April 2005, 14 April 2005, 9 April 2005, and 5 April 2005, respectively.

12. Ibid.

13. In Nigeria capital offenses exist in both the criminal law system (the penal code and the criminal code) and the Sharia penal system. Under criminal law it is applicable for offenses such as murder, culpable homicide, armed robbery, and treason.

14 For instance, section 236(3) of the Criminal Procedure Law of Lagos State gives magistrates’ courts, without trial jurisdiction for capital offenses, mandatory powers to remand any person alleged to have committed such offenses. In effect, the procedure under section 236(3) allows for remand without the suspect’s being charged. This is contrary to section 35(1) of the 1999

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Constitution, which recognizes remand only after a proper charge has been filed against a suspect in a court with the requisite trial jurisdiction.

15. The committee comprises representatives of the inspector-general of police, the director- general of the Legal Aid Council, the director-general of the National Orientation Agency, the Justice Initiative, the chief judge of the state, the attorney-general of the state, and the chairperson of the Nigeria Bar Association in the state capital.

16. The data is derived from statistics provided by the office of the Nigerian Comptroller-General of Prisons given to the project team at the beginning of the project in March–April 2005, contained in compilation with reference numbers PHOND: 66/VOL.III/81; PHK.91/VOL. XTX/516; PHS.676/VOL. 2/349; ISPH/66/VOL. XV/75 on Ondo, Kaduna, Sokoto, and Imo State respectively.

17. Ibid. This data was collected and analyzed by the project team and the Legal Aid Council.

18. Data provided by the office of the Nigerian Comptroller-General of Prisons given to the Project team at the beginning of the project in March–April 2005, contained in compilation with reference numbers PHOND: 66/VOL.III/81; PHK.91/VOL. XTX/516; PHS.676/VOL. 2/349; ISPH/66/VOL. XV/75 on Ondo, Kaduna, Sokoto, and Imo states respectively and the 2005 unpublished reports of the Legal Aid Council of Nigeria.

19. Paper presented by the Inspector General of Police, Mr. Sunday Ehindero, at the Stakeholders Meeting on Strengthening the Police-Duty Solicitors Scheme in Nigeria (Abuja: Open Society Justice Initiative, the Legal Aid Council of Nigeria, and the Nigeria Police Force) December 16, 2005.

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Ebb Tide: The Russian Reforms of 2001 and Their Reversal

Olga Schwartz looks at the adoption undo some of its most important of Russia’s new Code of Criminal advances. Furthermore, detention is Procedure in 2001 and the backlash used as frequently today as it was in that soon followed, and examines the first half of 2002. their impact on pretrial detention. The reversal of pretrial detention In 2001, the Russian government reform in Russia has its roots in adopted a new Code of Criminal the adoption of the new CCP—specifi- Procedure (CCP) that expanded the cally in the competition among rights of criminal defendants and different governmental agencies and erected additional barriers to the use legal scholars during the process of and length of pretrial detention. The adopting the new code. A moderate new code, for example, shortened to draft of the code, which represented a two months the amount of time defendants can typically be held in custody Legislators introduced changes to pending trial. More fundamentally, the code transferred from the prosecu- the code that undo some of its most tion to the judiciary final authority important advances. over the use of pretrial detention. Before the new code entered into force in July 2002, prosecutors were able unilaterally to arrest and detain sus- compromise among many agencies pects until trial. Today, Russian judges and which advanced to a second decide which suspects will be placed reading by parliament in 1999, was in detention and for how long. abruptly revised and radicalized during the peak of reforms led by These changes are important steps the Presidential Administration in forward in their own right and 2000–2001. This more progressive appeared to contribute to a reduction version, with stronger protections in the frequency of detention at least against arbitrary detention, has met in the first six months after the intro- with strong resistance in the trenches duction of the new code. A number of of justice administration and is now amendments to the pre-2001 code also gradually being reversed.1 set in motion a decline in the use of This paper describes the evolution detention from the beginning of 2001 of the reforms to the Code of Criminal onward. Yet the trend in pretrial Procedure as well as some of the detention in Russia today leads in patterns in the use of detention in the other direction. Legislators have the aftermath of these changes. introduced changes to the code that

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It speculates about the impulses for “radical reformers,” and also consider- reform and the personalities and insti- able setbacks.2 This paper describes tutions that augur for and against the some of these turns in order to illumi- progress that has been made so far. nate the institutional interests in The paper begins with an account of opposition to reform, as well as the winding road of reform. It ends the forces—people, ideas, and organi- with a description of some of the signs zations—that promoted change in of the restoration of a less progressive pretrial detention. model of criminal justice in Russia. I was a member of one of the working groups created at the Ministry of Justice of the Russian Federation in 1992 that prepared an initial draft of The disagreements among the new code. I later worked for the justice agencies, rooted in institutional Committee on Legislation and Judicial Reform of the Duma (lower house of competition, were not resolved by the new parliament), which prepared the draft code but rather swept under the rug. code for the first reading by parliament in 1997. I personally collected many thousands of comments on and amendments to the draft adopted in the first reading, some of them being Adopting the New Code rather confusing and contradicting of Criminal Procedure one other. I also witnessed some of In 1991, the RSFSR Supreme Soviet the interactions on and off the official (parliament) proclaimed the necessity floor of debate that eventually yielded of legal reform to build the rule of law the new code. The disagreements and establish the separation of pow- among justice agencies, rooted in but ers, including an independent and not limited to institutional competi- powerful judiciary. Judicial reform was tion, were not resolved by the adoption declared one of the main objectives of of the new code but rather swept the state, and criminal justice reform under the rug. These disagreements as the main task of judicial reform persist today, and a conservative crim- because of its role in protecting inal justice agenda, illustrated best human rights. by the strengthening of the Federal A new Code of Criminal Procedure Security Service and its preoccupation was passed in November 2001 and with terrorism, is ascendant. came into force in July 2002. The new code took more than a decade to draft The Winding Road of Legislative Change and then required a fortuitous political Some democratic provisions in the situation that would allow its adoption field of pretrial detention (as the most by the legislature and signing by the important field from the point of view president. Along the way, there were of human rights violations) were intro- many battles, short-term victories for duced even before the new code was

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adopted. In 1992 the old CCP of 1960 before trial be limited to two months.3 was amended to allow so-called habeas But this draft was too progressive for hearings—appeals against the prose- many people. Some critics said it was cutor’s decision to put a suspect “before its time,” implying that Russia in detention. The Russian Federation was not ready politically or materially Constitution of 1993 went even fur- to adopt such radical new rules. Also, ther and declared that all the decisions the strange language of the draft made on pretrial detention should be made it seem that portions had been trans- by a judge. But this norm did not enter lated from English into Russian, and into legal force until much later. even some of the sections—taken In the mid-1990s three very differ- directly from American rules of crimi- ent concepts of the CCP prevailed: nal procedure—seemed too drastic one draft was prepared by the Legal for many legal scholars. The brash Department of the Presidential personal behavior of Sergei Pashin, Administration, another by the the young leader of the working group Ministry of Justice, and a third by the for this draft, appeared high handed to Prosecutor General’s Office. These many senior legal scholars and practi- different approaches ultimately led to tioners and thus undermined the bitter disagreements among the three draft’s political support. agencies. This competition initially A less progressive draft of the code, seemed healthy, as many Russians the result of a compromise between and foreign donors saw the plurality different agencies of law enforcement, of ideas and political debate within was introduced to the Duma by government institutions as democrat- the Ministry of Justice and finally ic. But within the government there adopted in the first reading in 1997. was no strong will to tame this compe- Still, more than 3,000 amendments to tition or reconcile the different this draft were introduced, and it did groups, and neither the government not receive a second reading until nor the president wanted to introduce 1999. Reasonable legislative processes any of these drafts to the Duma. were blocked by fierce competition A draft was finally introduced into par- over the nature of power in criminal liament in 1996 by a group of MPs justice among the institutions of jus- headed by Anatoly Lukianov, who had tice in Russia, as well as fundamental participated in the aborted coup of disagreements over key principles. August 1991. It was not until 2000, when the presi- The draft code created by the dent decisively intervened in the Presidential Administration was the legislative process, that these disputes most progressive. In the field of pretri- were resolved. By then, the meaning al detention it provided for detention of “reform” had changed. only by order of a court, limited to 48 The impasse was broken in 2000 hours the period of custody before a during the presidency of Vladimir suspect must be brought before a Putin, when a new wave of interest in judge, and required that detention judicial reform arose. In March 2001,

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an amendment to the existing code counsel and without the possibility excluded the possibility of detention of appeal. for suspects facing less than two years’ In addition to this shift of power, possible incarceration unless there the code introduced four rules that were extraordinary circumstances. protect defendants’ rights. First, in the The amendment, moreover, repealed a absence of a judge’s review of arrest or provision that permitted pretrial extension of detention within the first detention solely on the grounds of 48 hours of arrest, the code orders the the “dangerousness” or seriousness suspect to be released immediately of the offense. Putin’s deputy chief and unconditionally. A special amend- of staff, Dmitrii Kozak, proposed a ment regarding this issue was intro- “package of reforms” reducing the duced into the Law On the Order of independence of the courts and dilut- Holding in Custody Suspects and ing judicial immunity, which softened Accused, which allowed the director of law-enforcement opposition to the the jail to release the suspect or more radical provisions of the new accused immediately after the expira- code. A new working group of legislation of this term, absent a court order tors, led by Elena Mizulina, quickly extending the term. edited the draft code so that it more Second, the code requires a written closely resembled the original concept record of an apprehension of a sus- of the Presidential Administration’s pect, and his delivery to a police station draft of 1993. With a Duma more loyal within three hours after arrest. The to President Putin, the law was adopt- record shall state the time and date of ed at the end of 2001. alleged execution of the crime, the date, the time, and the place of Key Provisions of the Code the apprehension, and the grounds Relating to Pretrial Detention and reasons thereof, the results of a Virtually all key provisions in the new body search of the suspect, and the code relating to pretrial justice proce- suspect’s explanations. dure expanded the power of the courts Third, the code excludes “danger- and diminished that of the procuracy. ousness of the crime” as a sufficient The authorization of detention and ground for detention and adds a penal all measures relating to search and threshold: unless there are extraordi- seizure, including access to informa- nary circumstances, officials may take tion about bank accounts and mail, into custody only those who are were shifted from the procuracy to the accused or suspected of having com- courts. This truly was a dramatic mitted an offense punishable under change and major victory for the rights criminal law by a period of imprison- of the defendants and human rights, ment exceeding two years. for throughout the Soviet era all deci- Fourth, the code discourages sions on pretrial detention were made lengthy detention. It limits initial pre- by the procuracy, without the partici- trial detention to two months, a period pation of the defendant or his defense that can be extended to six months

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only by a new decision of the same dis- concept of a rule-of-law state, the trict court judge. A continuation of the essence of which is the separation of period of detention can be requested powers into three branches. Many only by the chief prosecutor of a Russians recognized the need to cre- region and only in the cases of “grave” ate a new, democratic system of court and “especially grave” crimes—that is, structure and court procedure. offenses carrying more than five years’ Second, there was a genuine con- possible incarceration. Holding a pris- cern for the protection of the rights oner beyond 12 months is permitted of defendants, because there are few only in “exceptional cases” and at the spheres of state activities in which request of the prosecutor general of the measures of restraint are applied the Russian Federation or his deputy so intensively as in the course of and granted only by a judge of the criminal proceedings. In a democratic regional-level court. Pretrial detention society, most people agreed, criminal beyond 18 months is forbidden; the procedure should balance the state’s accused must be released immediately interest in prompt and complete reso- after this term. This clock, of course, lution of crimes and criminal prosecu- stops when a suspect is bound over for tion of persons committing them trial, but the judiciary now also has to against the individual’s interest in abide by time limits: if the court has being free from undue restriction of not issued a verdict after six months, his rights by the state. Many people in or after a year in exceptional cases, the Russia felt, however, that this balance 4 defendant must be released. could not be struck through continued Please see the appendix to this use of the old Soviet Criminal report for a side-by-side comparison of Procedure Code of the RSFSR of the old and new codes. 1960, and the new Russia started to draft a new one in 1992. The Forces for Reform Third, Russia was under pressure The victory of progressive forces in the from the Council of Europe to make reform of pretrial detention was the these changes. Regulating pretrial result of at least four factors. First, detention became even more impor- many government leaders, public offi- tant when Russia joined the Council cials, and nongovernmental groups of Europe in 1996 and ratified the wanted to belong to the West and saw European Convention on Human the reform of criminal procedure leg- Rights in 1998. By then, the draft code islation as one way to gain admission was already approved by the Russian to Europe—or what was typically Parliament in the first reading, so the called the civilized world. Also, after drafters had an opportunity to use many years of isolation, large num- international experience and interna- bers of Russians began to understand tional good practices in the course that it was possible to join this of its further preparation. (The draft “civilized world” only after accepting was assessed by experts from the its universal values, including the Council of Europe, the American Bar

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Association, and the U.S. Department number of detainees as the facilities of Justice). can legally hold (in Moscow it is 2.6 Fourth, conditions in jails were times).6 There are frequent and credi- awful. Russia’s prison and jail popula- ble reports of inmates and detainees tions rose dramatically in the 1990s, being beaten and tortured by law and overcrowding produced violence enforcement and correctional offi- and illness that affected guards and cials.7 Prison conditions also fall well inmates alike. Russia managed this below international standards. growth poorly, resorting to amnesties The overcrowded and dangerous and ad-hoc releases to keep the popu- conditions are much worse in pretrial lation of inmates under control. detention centers than in prisons or But there was little confidence in labor camps. As many Russian and administrative measures to resolve international human rights organizations have testified, confinement in SIZOs, where thousands of prisoners Russia’s prison and jail populations every year contracted tuberculosis as rose dramatically in the 1990s, and well as other diseases, amounted overcrowding produced violence and to torture. This conclusion was accepted by different UN and European illness that affected guards and Human Rights Commissions in 8 inmates alike. 1995. It was also embraced by the former deputy minister of justice, Yuri Kalinin, one of the leading voices for progressive penal reform in the these concerns. The reform of crimi- country.9 nal procedure was seen as part of the solution to these ailments. The Case of Kalashnikov The problem of dangerous detention Problems and Patterns in conditions became especially evident the Use of Pretrial Detention after Russia joined the Council of Russia has one of the highest prison Europe. One of the first cases against population rates in the world, with an Russia considered by the European estimated 594 individuals out of every Court of Human Rights was the case 100,000 residents in prison at the of Kalashnikov, who complained about beginning of 2006.5 This incarcera- both the length of detention and the tion rate is eight to 15 times higher conditions in the detention facility. than that in most European countries. At the time of the court’s review, There is also a large population in Kalashnikov had been in detention for pretrial detention. Pretrial detention four years, one month and four days. centers, known as SIZOs (for sled- The court accepted the suspicion that stvennye izolyatory, or investigative the applicant had committed the isolators), are perennially overcrowd- offenses and that the possibility of ed: on average there are 2.4 times the interfering with the investigation

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could initially suffice to warrant the rate at which convicted defendants applicant’s detention. However, once were given custodial sentences the collection of evidence was com- remained fairly stable—around 28 plete, that argument was moot. The percent—this increase in crime yield- court also found that detention condi- ed a larger number of inmates.12 tions in Russia were unsatisfactory Detention also was not used spar- and fell below the requirements set for ingly. Many petty offenses in Russia penitentiary establishments in other were criminalized, and the criminal member states of the Council of code allowed judges to assign impris- Europe.10 Kalashnikov’s cell, designed onment for most crimes. Experts for eight inmates, was populated on from the Council of Europe, visiting average by between 18 and 24 persons. penitentiary facilities in 1994, were Inmates in the cell had to sleep in shocked by several cases in which the turns, on the basis of eight-hour shifts offenders were arrested and kept in of sleep per prisoner, but even that was disrupted by the constant lighting in the cell, inadequate ventilation, and The cell, designed for eight inmates, was infestation by vermin. The court there- populated by between 18 and 24 persons. fore held that the conditions in the cell where the applicant was detained could be regarded as “inhuman or degrading treatment” and that the pretrial detention for shoplifting three period spent by the applicant in deten- cucumbers or stealing two jars of jam tion pending trial exceeded a “reason- from their neighbors. able time.”11 But the main reason for the lengthy detentions and overcrowded detention Why Are Jails So Crowded? centers lies in the organization of The conditions in the jail in which Russia’s investigative agencies and the Kalashnikov was detained were not structure of criminal proceedings as a unique. Throughout Russia in the whole. The CCP of 1960 determined 1990s, jails were operating at twice exact time limits only in connection their capacity. There were many caus- with the length of investigation (with es for this crowding, including the possibility of an extension) and set- increases in the amount of crime, the ting the date of the trial. The extensive likelihood of prosecution, frequent and very precise requirements regard- use of detention, and slow growth in ing evidence collection and the relative the amount of jail space. Although we simplicity of getting an extension from do not have reliable information on the prosecutor led to a situation in rates of crime, we do know from the which the two-month time limit for Ministry of Justice that between 1993 investigation was never observed. The and 1996 there was a 40 percent absence of meaningful time limits, increase in the number of persons combined with inefficiency in the convicted of crime. Even though the investigations, resulted in the over-

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crowding of detention centers by per- sets of amendments aimed at “the sons whose cases were stuck at differ- maintenance of exact and uniform ent stages of the proceedings. application of the code, [and] elimination of misinterpretation of some What Was the Impact of the New norms.”14 Code of Criminal Procedure? For the first time in Russian history, The Initial Impact on Pretrial Detention the government endeavored to track Several officials reported at the final and evaluate the impact of the Code monitoring conference in Moscow in of Criminal Procedure on the justice December 2003 that the use of pretri- system.13 Headed by Elena Mizulina, a al detention had been substantially working group made up of the drafters reduced. Data presented by the Office of the code received a grant from of the Prosecutor General of the the U.S. Department of Justice and Russian Federation showed that, in launched a two-year project titled the first three months after the code “Monitoring the Implementation of was introduced—that is, July, August, the Code of Criminal Procedure.” The and September of 2002—pretrial project was approved by both the detention as a measure of restraint Presidential Administration and the was applied against 33,309 persons. Duma Committee on Legislation. The courts refused detention in the The use of arrest and detention was cases of 3,273 persons (9.8 percent an important subject of study but not of all the applications brought by pub- the only concern of the group. lic prosecutors).15 These and other The working group traveled all over numbers struck most people as a sign Russia and conducted seminars and of both less frequent detention and conferences in all the federal circuits success in the reform. of the Russian Federation in order to Vyacheslav Lebedev, the chairman explain to perplexed officials some of the Supreme Court of the Russian provisions of the new code and also Federation, who had written a doctoral receive feedback from the agencies dissertation on the subject of pretrial implementing those provisions. The detention, closely monitored develop- attempt to monitor and evaluate the ments and was generally very pleased impact of the reforms yielded new and with the results. At the end of 2003, important information about the qual- he stressed in his interview with ity of justice in Russia. At the same Vedomosti, the most important busi- time, this process opened up the ness newspaper in Russia, that as reform of criminal procedure legisla- of June 1, 2003, courts had applied tion to a backlash of changes that pretrial detention as a measure of reversed the progressive trend of the restraint against 173,000 citizens, a previous five years. On the basis of the figure he claimed was much smaller information gathered, the working than in analogous periods before the group introduced to the Duma several new code. Public prosecutors, he said,

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detained nearly twice this number in introduction of the new code. the year immediately before transfer Amendments to the CCP (dated July of this power to the courts.16 4, 2003) made the position of The results seemed to please the suspect even worse than it had foreign observers. In its resolution been under the Soviet CCP. Today, concerning the judgment of the the CCP contains a provision that European Court of Human Rights in allows the court to extend the initial the case of Kalashnikov v. Russia, the period of 48 hours of detention by Committee of Ministers of the an additional 72 hours if one of the Council of Europe noted with particu- parties requests additional time to lar satisfaction the significant decrease provide additional evidence in support in overcrowding in pretrial detention for or in opposition to the request facilities (SIZOs) and the ensuing improvement of sanitary conditions. The resolution cited statistics submit- New changes to the Code of Criminal ted to the committee by the Russian authorities, according to which the Procedure stunted the reforms not long average number of persons commit- after their effects began to be felt. ted to detention on remand per month decreased from 10,000 in 2001 to 3,700 in October 2002. In addition, the International Centre for Prison Studies at the University of London for pretrial detention. Apparently, noted that in 2000 Russia’s prison this loophole is not widely used. population rate was 750 per 100,000 According to the data presented by citizens and that by 2003 it had fallen First Deputy Prosecutor of Moscow to 680 per 100,000.17 Yuri Sinelschikov in 2003, in the first four months after the introduction of This information suggests that the this amendment, Moscow courts reforms had an enormous and largely granted extensions to only 119 per- positive impact on practices in pretrial sons, or 2.4 percent of all applications. detention. But unfortunately, the Still, the change in the law set a bad sustainability of these changes was precedent. never tested. New changes to the Code An additional set of amendments of Criminal Procedure stunted the introduced on April 22, 2004, went reforms not long after their effects even further and extended to 30 days began to be felt. the amount of time prosecutors had to bring charges against suspects Changing the Code of Criminal accused of especially grave crimes, Procedure: The Backlash including terrorism, taking hostages, The Duma made a series of regressive organization of illegal armed groups changes to the regime of pretrial and participation in such groups, detention 12 months after the gangsterism (banditry), violence to life

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and person of a state official, forced the Federal Security Service and the assumption of state power, armed Ministry of the Interior worked togeth- rebellion, sabotage, aggression against er to promote legislation providing persons or organizations enjoying one month of detention without a judi- international protection, and any other cial order. In 2004, these efforts were offense punishable by more than rewarded by the Duma. 10 years of imprisonment (Article Counterreforms have also chipped 18 100). Even 10 days of detention away at the rules that eliminated indef- without bringing any charges is inite detention. Previously, “termless impermissible from the point of view pretrial detention” was allowed in the of the Russian Constitution and the new code only during the “familiariza- European Convention of Human tion” of the defendant and his counsel Rights because the suspect has no with the criminal case. But counterreforms adopted on July 4, 2003, extended the use of indefinite deten- Counterreforms chipped tion to cases in which the defendant away at the rules that eliminated was apprehended in a foreign country. indefinite detention. When necessary for the conduct of additional preliminary investigations, the court may extend the term of detention of such an individual. So, as information for his defense—and 30 was possible during Soviet times, pre- days is clearly in breach of the trial detention again may be extended European Convention. up to two years. This amendment represented the The same amendments allowed restoration of a rule first established the investigator to control the defen- during the 1990s. In June 1994, hav- dant and his counsel’s familiarization ing conceded to the pressure of law with the case. The investigator may enforcement agencies, President Boris set a timetable for familiarization and Yeltsin signed a decree that extended if the defendant and his counsel do up to 30 days the term of allowable not meet the terms set by the court, detention for persons suspected of the investigator can stop the familiar- gangsterism. The decree, although ization and send the case to court clearly unconstitutional, was responsi- for consideration. This amendment ble, according to archival documents, is a direct violation of defendants’ for at least 27,000 detentions in rights because it limits their ability to 1995–1996. Yeltsin rescinded the decree in 1997, but the idea was prepare for trial. revived in 2000 by then-Speaker of the Duma Boris Gryzlov. In 2001, Gauging the Impact of These Changes Minister of Justice Yuri Tchaika unsuc- There is no monitoring project or cessfully introduced to the State Duma other vehicle to examine what impact, a draft law allowing pretrial detention if any, these revisions to the code have for 30 days without charges. In 2002, had on practices in pretrial detention.

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To study the impact of the provisions the excision from the old CCP of a for limitless detention, one would large list of offenses for which the dan- need access to the records of the gerousness of the charge alone could prosecution and Federal Security justify an order of detention. It also Service (FSB). And to analyze how shows that the amount of detention frequently pretrial detention is extend- continued to decline in the second half ed, one would need access to the of 2002—that is, the first six months raw data maintained by the Judicial after the new CCP came into effect. Department of the Supreme Court of Since then, however, and before the the Russian Federation. But law amendments to the code discussed enforcement and judicial institutions above, the number of suspects in Russia today only disclose certain remanded into custody by the courts statistics. has grown substantially. Nevertheless, it is possible to assess It is not clear what has caused general trends in the use of detention, the increase in pretrial detention. and by all accounts, it grew between The number of suspects identified by late 2002 and 2005. The court the police actually decreased between statistics provided by the Judicial 2002 and 2004, from 1,257,000 to Department at the Supreme Court 1,222,504, and only afterward began of the Russian Federation confirm to rise.19 It is also not clear what role that there was a steady increase in the legislative changes played in this both the amount of pretrial detention growth. Their contribution to these and the likelihood that judges would trends may have been negligible, and grant prosecutors’ applications for it is possible that the significant detention between 2003 and 2005. decline in the number of detention In the year 2003, there were 234,000 orders between July and December applications for detention, of which 2002 was unrelated to the new CCP. 211,000 (90.2 percent) were granted One former police investigator report- by the court. In 2004, there were ed that when the new CCP came into 237,000 applications, of which force, investigators had not been prop- 215,000 (90.7 percent) were granted. erly trained or equipped (they lacked, And, in 2005, there were 277,000 for example, photocopying machines applications, of which 255,000 (91.8 to provide the court and the defense percent) were granted. Only in 2006 with copies of motions requesting (the last full year for which data detention) and thus frequently did not is available) did the number of appli- request detention, even when it was cations stabilize at 249,000, of which warranted. Once these weaknesses 91.3 percent were granted. were overcome, however, the number The chart on page 114 records of detention orders increased and trends in the use of detention from eventually reached the level recorded 2000 through 2006. It illustrates immediately prior to the implementa- clearly that the amount of detention tion of the new CCP. Without further declined rapidly in 2001, right after investigation, of course, we cannot be

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Trends in the use of pretrial detention in Russia, 2000—2006

177,027

174,437 168,176

140,137 133,300 128,379 126,200 121,757 110,138 120,206 105,580 96,868 95,126 77,604 Number of Detentions

Jan- July- Jan- July- Jan- July- Jan- July- Jan- July- Jan- July- Jan- July- June Dec June Dec June Dec June Dec June Dec June Dec June Dec 2000 2001 2002 2003 2004 2005 2006

Sources for data: Jan. 2000—June 2002: B. Ia. Gavrilov, The CCP of the RSFSR and the CCP of the Russian Federation: A Comparative Analysis from the Perspective of a Practitioner and Academic, Iuridicheskii Konsultant, No. 9 (2003); July 2002—June 2006: Judicial Department, Supreme Court of the Russian Federation, Forma S04.

sure of the validity of this account. But Official data presented on the website if it is true, it suggests that trends in of the FPS indicate that as of October pretrial detention are not directly 1, 2005, 156,600 inmates were con- affected by changes in the law. It also fined in 203 pretrial detention centers implies that the “judicialization” (i.e., (SIZOs), seven prisons, and other transferring from prosecutors to facilities functioning as pretrial deten- judges) of all decision-making powers tion centers. regarding pretrial detention has not by The extent of overcrowding today itstelf had a sustained impact on the remains well below what it was in the use of pretrial detention in Russia. late 1990s, when the jails operated at nearly twice official capacity and in The Return of Intensive Overcrowding? some jails there were three and a half The facilities for pretrial detention inmates per jail bed. Still, there is a in Russia can legally accommodate strong sense that Russia has not 130,000 inmates. But according to resolved the problem of overcrowding. the deputy director of the Federal And recent trends may place pressure Penitentiary Service (FPS), Vladimir on the government to adopt arbitrary Semenyuk, the average daily popula- policies of ad hoc releases. In October tion in 2005 exceeded 150,000. 2005, for example, the members of

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Moscow Helsinki Group (MHG) Russian courts consistently relied on demanded that the State Duma pass the gravity of the charges as the main an amnesty bill making it possible factor in determining the application to release up to 40,000 inmates who of pretrial detention. The ECHR has they claimed were sentenced for non- repeatedly held that while the severity violent crimes. Even the Federal of the sentence faced is a relevant ele- Penitentiary Service estimates that ment in assessing the risk of abscond- 25 percent of jail inmates are either ing or reoffending, the gravity of the acquitted or released before sentence, offense alone is not enough to justify calling into question the necessity pretrial detention. of detention. “Our prison population Ultimately, the ECHR found that would dwindle if these people were by failing to address concrete facts or not arrested,” say human rights consider alternative preventive meas- activists.20 ures, and by relying almost exclusively on the gravity of the charges, the The Persistence of Arbitrary authorities prolonged the applicant’s and Lengthy Detention detention on grounds that cannot be The problem of needlessly long deten- regarded as “relevant and sufficient.” tions still exists, as was revealed when The authorities failed to justify the Dolgova v. Russia was heard by applicant’s detention on remand and the European Court of Human thus violated Article 5 § 3 (concerning Rights.21 Ms. Dolgova, a member of the excessive length of the applicant’s the National Bolsheviks Party, was detention on remand) of the European arrested in the waiting area of the Convention on Human Rights. president’s office where several members of her party chained themselves The Future of Pretrial together in the hope of obtaining Detention in Russia a meeting with the president. She There are a number of reasons to be was held in pretrial detention by worried about the future of detention a court decision on the ground that in Russia, above and beyond the con- she was suspected of a particularly cerns about jail overcrowding. First, serious criminal offense. She spent there is an absence of progressive almost 12 months in custody before political leadership on the issue of being found guilty as charged and detention. Second, justice officials are given a suspended sentence of three taking advantage of the new norms. years’ imprisonment. Third, the profile of defendants may In its ruling, the ECHR stressed be changing in ways that make them that while a reasonable suspicion that more likely to be detained. Fourth, the defendant has committed a grave there are signs that the judiciary is offense is a requirement for continued impatient with the setting of time lim- detention, this justification no longer its for trials and is willing to accept suffices after a certain lapse of time. longer periods of detention before The European court found that sentencing.

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Elena Mizulina, the MP who without a visa). There is reason to worked closely with the Putin admin- believe that in Moscow and some istration to pass the new code, was not other cities there are huge numbers reelected to parliament in 2004, and of transients, guest workers, and the absence of her or other liberal lead- others living in the underground ers in the Duma helps explain why so economy, and when these persons many regressive amendments were become suspects in crimes, it may be adopted by the legislature. Most of the necessary to detain them. Otherwise, counterreforms were proposed by they simply disappear.”22 other deputies on behalf of the Ministry of the Interior and the Office Two Reasons for Hope of the Prosecutor General and were There are, nevertheless, two signs of intended to strengthen the position of hope for change in the future. One comes from a much-maligned political innovation in Russia: the so-called The counterreforms were intended to Public Chamber. The Public Chamber strengthen the position of law enforcement includes some of the best-known and most influential members of agencies—for example, by increasing the Russian society. Members of the time allowed for summary investigation. Public Chamber were recruited and elected under the total control of the Presidential Administration and have a right to examine human rights law enforcement agencies—for exam- protections in different spheres of ple, by increasing the time allowed for public affairs and also have access to summary investigation and extending draft laws before their introduction to the period of time for bringing the parliament. To many people’s sur- arrested person before a judge. In a prise, some of the members of the short period both the prosecution and chamber took their responsibilities the courts have learned how to use the seriously and started real work in new rules to their advantage. revealing societal problems. It is possible that the profile of For example, on March 10, 2006, defendants exposed to the threat of the well-known defense attorney and detention is changing, too. Peter chair of the Moscow State Law Solomon, an expert on Russian crimi- Academy, Anatoly Kutcherena, who nal justice, observed that “While an chaired the chamber’s Commission increase in serious crime is unlikely for Control over Activities of Law to explain levels of detention or trends Enforcement Agencies and Judicial in their use, another factor may matter Reform, invited Supreme Court and that is the share of suspects who Chairman Vyacheslav Lebedev to his either come from another region or commission’s meeting and expressed live illegally in a particular location his concern about the alarming (either without registration or even situation with pretrial detention.

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According to Kutcherena, the statistics the noncustodial punishment, it can provided by the Federal Enforcement be replaced by incarceration. Service suggested that levels of According to the Law on detention are higher today than during Introducing Criminal Code into Force, the period in which prosecutors all new alternative measures of themselves decided on detention. restraint should be introduced after Kutcherena cited figures suggesting “the readiness of the situation” is that 380,000 had been detained in established—but not later than the 2005. Lebedev disputed this claim year 2005. So in theory, community and replied that according to court service is already available as an alter- statistics the figures are much lower native punishment. But unfortunately, (254,000). Still, the disparity prompt- noncustodial punishments require ed an agreement to reexamine the their own infrastructure—for exam- figures and also another meeting with the commission in order to clarify the results.23 Progressive changes are not A second source of hope is the sustainable without changes unswerving desire of the prison service, which reports to the Ministry of in the attitudes and values of law Justice, to reduce crowding, diminish enforcement and justice officials. the use of detention, and introduce noncustodial punishments for offenders. In December 2005, then–Minister of Justice Yuri Tchaika called for ple, those sentenced to community changing criminal policy, decriminal- service must be monitored to ensure izing some offenses, and restricting they complete the sentence—so their the use of pretrial detention because of use is still minimal. overcrowding in SIZOs. It is not clear The use of noncustodial punish- if this proposal will gain any traction. ment provides some hope for reduc- One way to reduce SIZO over- ing pretrial detention in Russia in the crowding is the use of noncustodial future. But for now, the situation is punishments. The Russian criminal clear: progressive changes—even code provides for the following non- those introduced by the government custodial punishments: community itself—are not sustainable without service, correctional services, liberty changes in the attitudes and values of restriction, and arrest. These punish- law enforcement and justice officials. ments may be imposed for commit- Even with the existence of political and ting certain crimes. Noncustodial pun- institutional support to sustain these ishment may be imposed based on the changes, nothing can be done without criminal—for example, if it is his first shifting the attitudes and values of offense. If the criminal does not serve those implementing the reforms.

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APPENDIX The table below compares some of the provisions of the new code with the rules in the old CCP.

CCP RSFSR (1961) CCP RF (2001)

1. Speedy Trial Provisions

Detention is presumed to last only two months but is Detention is presumed to last only two months but is extendable to three months by decision of a district extendable to six months by a district court upon a prosecutor. Extendable again to six months by decision motion filed by the investigator and approved by district of a regional prosecutor. prosecutor.

Extendable to 12 months in exceptional cases of grave Extendable to 12 months by a district court in cases of and especially grave crimes by decision of Deputy grave and especially grave crimes only, or “exceptionally Prosecutor General. complex cases,” upon a motion filed by the investigator and approved by a regional prosecutor.

Extendable to 18 months in exceptional cases of grave Extendable to 18 months by a regional court in cases of and especially grave crimes by decision of the grave and especially grave crimes only, or “exceptionally Prosecutor General. complex cases,” upon a motion filed by the investigator and approved by the Prosecutor General or his deputy. All decisions on extension can be appealed to the higher court.

No limitation on detention during the trial. (The deten- The period of detention during the trial is limited to six tion is automatically extended until the end of the trial if months from the moment of receiving the case by the the judge in the preparation stage decides to keep the judge till the moment of rendering the decision. defendant in custody.) Extension of this term is possible only for cases of grave and especially grave crimes for not more than three months each time. The decision can be appealed again to the higher court (Article 255).

2. Penal Threshold Pretrial detention can be ordered only if the offense can Pretrial detention can be ordered only if the offense can be punished by more than one year of incarceration be punished by more than two years of incarceration (Article 96). (Article 108).

3. Grounds for Detention In exceptional cases: detention can be ordered in cases In exceptional cases, detention can be ordered in cases where, upon conviction, the punishment might be less where, upon conviction, the punishment might be less than one year of imprisonment. For all crimes specifical- than two years of imprisonment, if: ly named in the Article, the “dangerousness of the 1) the person has no permanent residence in the terri- crime” alone is sufficient to justify detention (Article tory of the Russian Federation; 96). 2) the person’s identity has not been established; 3) the person has violated a previously imposed measure of restraint; 4) the person has fled from preliminary investigation agencies or from court (Article 108).

4. Habeas Hearings No hearings. Seventy-two hours of detention before Forty-eight hours’ term of detention of the suspect with- charges are brought against the suspect (Article 122). out court decision. A court order is required to place suspect into custody (Article 94).

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Notes

Olga Schwartz is project coordinator for the Russian Foundation for Judicial Reform.

1. For a very different account of the politics and consequences of the adoption of the new code of criminal procedure, see Matthew J. Spence, “The Complexity of Success: The US Role in Russian Rule of Law Reform” (Washington, D.C., Carnegie Endowment, Carnegie Paper no. 60, July 2005).

2. For an account of these debates by a Canadian scholar, see Peter H. Solomon, Jr., “The Criminal Procedure Code of 2001: Will It Make Russian Justice More Fair?” in William Alex Pridemore, ed., Ruling Russia: Law, Crime and Justice in a Changing Society (New York: Rowman & Littlefield Publishers, 2005).

3. The draft code softened this rule by allowing a prosecutor to request from the court extensions of the period of detention—for not more than two months on the first application and one month on the second. Articles 165–170 and 172–177 of the draft code prepared by the Presidential Administration (Moscow: State Legal Department of the President, 1994).

4. In addition to these restrictions on detention, the new code also provided for the use of alternative measures of restraint such as house arrest and bail. At the same time, a revision of the Criminal Code eliminated incarceration as a penalty for a large number of less serious crimes, which automatically excluded the possibility of detention for those accused of committing those offenses.

5. See, for example, www.kcl.ac.uk/depsta/rel/icps/worldbrief/world_brief.html.

6. See “Man and Prison” (Moscow: Public Center for Criminal Justice Reform Assistance), www.prison.org.

7. See, for example, “Human Rights Observation in Perm Region in 2000” (Moscow: Association of Civil Inspectors), http://control.prpc.ru/pris_04.shtml.

8. See for example, “Comments on Russian Federation by the UN Human Rights Committee” (New York: United Nations, Doc. CCPR/C/79/Add.54, 1995); see also, “Report to the Russian Government on the visit to the Russian Federation carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 2 to 17 December 2001” (Strasbourg: CPT, CPT/Inf [2003] 30).

9. See, for example, the text of his speech in London, November 2002, “The Russian Penal System: Past, Present and Future,” www.prisonstudies.org.

10. The court noted that the cell in which the applicant was detained measured between 17 m2 (according to the applicant) and 20.8 m2 (according to the government). It was equipped with bunk beds and was designed for 8 inmates. The court thus recalled that the CPT has set 7 m2 per prisoner as an approximate, desirable guideline for a detention cell (see the 2nd General Report – CPT/Inf [92] 3, § 43), i.e. 56 m2 for 8 inmates.

11. Kalashnikov v. Russia, Judgment of July 15, 2002.

12. Irina Andriushechkina, “Arrest as a Measure of Restraint,” Iuridicheskii Konsul’tant, No. 8(44) (August 1997).

13. The impact of the reforms of criminal justice in the 19th century was studied closely by legal scholars but not government officials.

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14. See explanatory note to the draft federal law, “On the Amendments to the Code of Criminal Procedure of the Russian Federation,” introduced to the Duma in December 2002.

15. See the report of Elena Mizulina, “Criminal Procedure Reform—a Year after Adoption of the New CCP,” presented at the conference of the Russian Academy of Civil Service, 2002.

16. Vyacheslav Lebedev, “Esli sudia nischii, slozhno govorit’ o bespristrastnosti pravosudia,” Vedomosti, July 1, 2003, www.vsrf.ru/news_detale.php?id=752.

17. See Roy Walmsley “Prison Population Size: Problems and Solutions” presented at a Council of Europe seminar for judges and prosecutors in the Russian Federation, Moscow, 2000.

18. The text of Article 100 of the CCP RF in 2001 allowed, in exceptional instances, judges to impose a measure of restraint on a suspect even if charges had not been brought within 10 days. If no charges were brought within the period specified, however, the measure of restraint was to be immediately revoked.

19. See the crime reports published on the website of the Ministry of the Interior, www.mvdin- form.ru.

20. See “Human Rights Activists Demand Amnesty For 40,000 Inmates,” Novye Izvestia, October 25, 2005, http://en.rian.ru/analysis/20051025/41883899.html.

21. Dolgova v. Russia, Judgment of the European Court of Human Rights, March 2, 2006.

22. Solomon, “The Criminal Procedure Code of 2001” in Pridemore, Ruling Russia.

23. Alek Akhundov, “Verkhovny Sud Proschitalsya s Arestami [The Supreme Court Miscalculated the Arrests],” Commersant-Daily, No. 42 (3373), March 11, 2006. According to the bureau of statistics in the Judicial Department, this disparity can be explained by the nearly 100,000 defendants who were detained by judges during trial or as a result of a conviction and sentence.

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Frustrated Potential: The Short and Long Term Impact of Pretrial Services in South Africa

Louise Ehlers examines South Africa’s services and more informed decision- short-lived Pretrial Services project and making processes in relation to bail finds promise in the concept of throughout the country. The institu- improving bail administration. tionalization of pretrial services did not occur. Indeed, little further effort This paper examines the impact of was made after 2000 to expand the efforts to improve the administration BJA model of pretrial services. Today, of bail on the size, experience, and even in the three locations in which management of the awaiting trial pop- the new approach to bail was piloted, ulation in South Africa. It also there are few signs of the original explores questions about the politics innovation. of lasting justice reform. The paper focuses on one project in particular, the Pretrial Services project, which Since the first democratic elections encouraged more rational and equitable bail decisions by providing in South Africa in 1994 a wide range courts with independent information of initiatives has aimed at transforming about defendants. The Pretrial Services project was the criminal justice system. conceived as an experiment and jointly implemented by the Bureau of Justice Assistance (BJA) and the South African The Pretrial Services project was Ministry of Justice in 1997. The South not South Africa’s only example of an African Ministry of Justice and the effort to improve justice and protect Vera Institute of Justice, a nonprofit human rights. Since the first demo- organization in New York, established cratic elections in South Africa in the BJA in 1997. The Open Society 1994 a wide range of initiatives has Foundation for South Africa provided aimed at transforming the criminal support to the Vera Institute for the justice system as a whole. These Pretrial Services project. include legislative amendments to Upon the completion of a round penal and procedural law and institu- of pilot programs in 1999 the project tional and departmental restructuring. was officially handed over to the Some of these reforms endeavored to Department of Justice by the BJA, better manage and reduce the size of under the assumption that the depart- the prison population. But the Pretrial ment would then introduce pretrial Services project was an example of a

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particular kind of reform, a “demon- mon law on bail given judicial officers’ stration project,” that was based on uncertainty about the law’s application several assumptions about how mean- with the coming into force of the ingful and lasting change can take country’s post-1994 constitution. place in criminal justice practices. An An amendment to the Criminal analysis of this experience yields sev- Procedure Act entrenched the consti- eral observations about the difficulties tutional notion that an accused person of launching and sustaining systemic has the right to be released on bail, transformations of justice systems “unless the court finds that it is in through discrete experiments and the interests of justice that he/she be innovation. detained in custody.”3 The new law This paper describes some of the also obliged judicial officers to play immediate impacts of the Pretrial an active role in bail proceedings by Services project on the pretrial pri- seeking out relevant evidence and sioner population, prison overcrowd- encouraging them to consider all ing, and bail decisions.1 But its main potentially relevant information per- goal is not to evaluate that impact.2 taining to bail applications, including The paper instead focuses on the less the fact that the police require time visible and harder to measure process- to investigate allegations. Courts were es by which innovations take place in allowed to postpone bail applications criminal justice in South Africa and by for seven days for this purpose. which justice officials think about and Some commentators felt that, “by accommodate change. Several partici- international standards, the 1995 pants and observers of these changes amendments were strict measures. were asked what they remember about They provided, for example, for the this experience, why this demonstra- continued detention of someone who tion project was launched, and why it might commit further crime rather was not more closely aligned with than limiting pretrial detention only to national-level reforms which might those who might not stand trial or who have increased its sustainability. In might interfere with witnesses or this sense, the paper is about the other preparations for the trial.”4 strategies for reducing detention and In 1997 the Minister of Justice the assumptions about lasting change introduced further amendments to the in justice on which they appear to bail law.5 These changes included, depend. It is also about the difficulties among others, a new provision where- of making these changes in environ- by an accused person charged with a ments of acute public concern about serious offense, such as murder, crime and public safety, which in aggravated robbery, and rape, is South Africa remains considerable. detained awaiting trial unless he or she satisfies the court that “exception- Restricting Access to Bail al circumstances” exist that in the In 1995 the South African government “interest of justice” permit release. sought to clarify and codify the com- At the time a number of scholars cor-

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rectly predicted that the legislative poor handling of cases have resulted changes would increase the likelihood in bail being granted in serious cases. that accused persons would be We need to promote legislation that detained awaiting trial.6 will compel courts to refuse bail under certain circumstances.”10 Triggers for Legislative Change The legislative restrictions to the These legislative amendments were an right to bail were part of a broader attempt by the minister of justice to strategy to enhance the government’s respond to public concerns about tough-on-crime image and strengthen crime—concerns that grew alongside the ability of law enforcement to deal 11 the introduction of democracy and the with crime more effectively. Thus, at demise of apartheid. Some observers suggest the crime rate spiraled upward following the transition to democracy and began to represent a The public remained convinced 7 threat to democracy. It is not clear that the right to bail was to blame whether there was a real increase in crime in this period or by how much it for high levels of violent crime. might have increased. But the perceived growth in crime, at least, and its wide discussion in the media, had a strong impact on public perceptions of around the same time as the bail laws safety and insecurity. were being revised, the South African government promulgated legislation Moreover, notwithstanding the that enhanced the state’s capacity to tougher bail law, the public remained combat organized crime and criminal convinced that the right to bail, per se, gangs,12 provided for minimum was to blame for high levels of violent sentences,13 and restricted the release crime. This perception was fueled by a of convicted prisoners on parole.14 number of publicized cases in which Moreover, the government’s National bail was granted because of lapses in Crime Prevention Strategy (NCPS) the criminal justice process.8 There was downgraded in importance in developed a growing belief that judi- favor of a law-and-order approach to cial officers were too lenient in granti- dealing with crime.15 ng bail. In 1996, President Nelson Mandela expressed the need for “legislation to tighten bail conditions Impact of Changes to the Bail despite threats by idealists to take the Law on Detention Practices government to the Constitutional At the time of the 1997 changes to the Court.”9 Even the minister of justice bail law, some analysts predicted an was vexed by examples of dangerous increase in the number of unsen- repeat offenders’ being granted bail. tenced prisoners as a consequence of In January 1997, he complained: “The the new legislation.16 One study found insensitivity of the courts and the

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Figure 1: Number of Unsentenced Prisoners, 1995—2005 (annual average)

57,811 60,000 55,524 53,748 54,001 54,069 51,215 47,305 50,000 46,601

37,247 40,000 30,170 30,000 23,783 20,000

10,000

1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005

Source: Judicial Inspectorate of Prisons that the new law had precisely this finalize investigations. There are other effect.17 According to official data, the possible factors, too, including the number of unsentenced prisoners increase in the total number of almost doubled between 1995 and accused. We cannot sort out these 1998 (Figure 1). effects here. All we can say is that the For any justice system, of course, it changes to the bail law probably is difficult to draw a direct causal link helped contribute to an increase in the between legislative change, judicial use of detention. decision making, and prison popula- During the late 1990s, the signifi- tion dynamics. The increase in the cant increase in the number of unsen- size of the unsentenced prisoner tenced prisoners was a major contrib- population might have many sources, utor to prison overcrowding. Thus, including an increase in the length while the number of unsentenced of time accused persons await the final prisoners increased by 143 percent disposition of their case. And many between 1995 and 2000, the number people believe there indeed was an of sentenced prisoners increased by a extension of that wait time in this peri- more modest 26 percent over the od, due to increased case loads in the same period. In 1995, unsentenced lower courts, more frequent postpone- prisoners constituted just over one- ments, poor case flow management, fifth (21 percent) of the total prison and perhaps even an increase in the population; by 2000 every third pris- amount of time taken by police to oner (34 percent) was unsentenced.

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Introduction of Pretrial Services the Manhattan Bail Project and its In 1997, Minister of Justice Dullah replication in many cities throughout Omar decided to launch a pragmatic the United States during a period of project to empower judicial officers rising crime and criminal justice to make more informed decisions in transformation prompted by the grow- relation to the administration of bail.18 ing civil rights movement, made a per- In addition to the problem of danger- suasive case to senior decision makers ous offenders being released by the in the South African justice depart- courts, there were large numbers of ment to experiment with a similar indigent persons accused of nonvio- undertaking. lent offenses—overwhelmingly black people from poor communities— remanded into custody because they Faced with criticism from human could not pay bail. Faced with criticism of these practices from human rights rights organizations and budgetary organizations, budgetary pressures pressures, Minister Omar supported from the increase in the prison population, and perhaps doubts about the the introduction of Pretrial Services. fairness of restrictive bail legislation, Minister Omar supported the introduction of Pretrial Services (PTS). Operational Goals and Political Logic of PTS The PTS project was one of a range of demonstration projects designed, At the launch of the PTS project, implemented, and tested by the BJA Minister Omar commented that, over a seven-year period in South “Pretrial Services seeks to achieve the Africa. The BJA was itself the product constitutional objective of balancing of an agreement between the South the rights of the accused with the African Department of Justice and the rights of witnesses, victims, and Vera Institute of Justice to support indeed of our most vulnerable citi- the capacity for innovation in justice zens—our children, our women and 20 administration in South Africa. The communities.” Moreover, in a letter PTS project was conceived in part as a Minister Omar wrote: result of the success of the Manhattan The Pretrial Services Demonstration Bail Project, a pretrial services project Project is designed to do two things. initiated by the Vera Institute of First, it ensures that serious or repeat Justice in New York City in 1961 to offenders are not released on bail and reduce the amount of jail crowding that petty offenders are released on that resulted from discriminatory affordable bail or on [non-financial] con- and arbitrary assignment of high ditions. Second, it seeks to prevent bail amounts to defendants who could accused and their associates from intim- not pay bail and thus spent long idating witnesses, thus encouraging wit- periods of time in jail awaiting trial ness participation in the criminal justice 21 on minor charges.19 The success of system.

Justice Initiative 125 Pretrial Detention

It is not easy to divine the with the BJA introduced pretrial serv- underlying political reasons for the ices as a demonstration project. Its introduction of the PTS project. Some chief purpose was to provide verified observers say Minister Omar was a information about accused persons at strong advocate of human rights their arraignment in court so that judi- but was unable to advocate openly cial officers could make balanced, for stronger protection of the rights equitable, and reliable decisions about of accused persons in a charged politi- bail. The BJA described the objectives cal environment, and so sought relief of the project in this way: in a discrete demonstration project that would balance the pressures PTS provides the court with a report for all adult accused in custody, containing verified information about the accused’s community ties, employment, previous PTS would facilitate a move convictions and other information needed for a bail decision. This information away from money-based bail and enables the court to make more appropriate bail decisions, which should mean help reduce the economic injustice that high risk, dangerous and repeat of incarcerating poor people. offenders are detained while awaiting trial. More appropriate bail decisions should also mean that low-risk, petty first time accused are released from custody. In order to facilitate this release the for protecting the public from violent PTS project attempts to strengthen or intimidating offenders and validat- supervision of bail conditions as a viable ing the rights of citizens not to be alternative to money based bail.22 presumed guilty and incarcerated before trial. Members of the Department of Whatever the motives involved, the Justice (bail officers) and South stated assumption of this pilot project African Police Service (SAPS) mem- was that through PTS, the Ministry of bers (supervision officers) staffed the Justice could change the profile of the PTS offices at the courts. A bail officer awaiting trial population. In addition took a digital photograph and finger- to ensuring that dangerous and violent prints of arrested accused persons offenders would not be granted bail, who were brought to court to apply for PTS would facilitate a move away from bail and stored this information in an money-based bail toward release on electronic database. The accused per- warning with reporting conditions son was then interviewed by a bail offi- that would help reduce the economic cer to elicit information relevant to injustice of incarcerating poor people assessing the risk of not complying who posed no evident threat but could with the conditions of bail, abscond- not afford to pay bail. ing, offending while awaiting trial, or Over the course of two years, the posing a threat to witnesses. A super- Department of Justice in collaboration vision officer would attempt to verify

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Case Studies

basic information provided by the ing facilities. Through this initiative, accused person, such as home/work witnesses were offered a range of serv- addresses, familial situation, assets, ices including lay counseling and in- and income, either by telephone or court witness protection. The rationale through direct contact with other per- was that by making the courts more sons in court or the community. All friendly to witnesses, witness appear- information was then entered on a ance rates would be enhanced. This computer with an electronic link ensured fewer postponements and between the PTS office at the court speedier trials, thereby reducing the and the SAPS criminal record data- likelihood that accused persons would base, providing information directly forget or otherwise miss their court from the SAPS database with regard to dates. accused person’s previous convictions PTS schemes were piloted in one within three hours of arrest. (This lower court in each of three different direct link was crucial to the operation provinces: Mitchells Plain Magistrates’ of PTS as a request for an accused per- Court in the Western Cape (launched son’s previous convictions could other- in August 1997), Johannesburg wise take up to eight weeks.) Magistrates’ Court in Gauteng A report (known as the first appear- (November 1997), and Durban ance report) was then generated prior Magistrates’ Court in KwaZulu-Natal to the accused person’s first appear- (May 1998). The sites were identified ance in court. The report contained a as three of the busiest courts in the summary of the basic information the country.23 PTS office had obtained from the accused and other sources, with brief notes about risk factors that the PTS Impact of the Pretrial office wanted to bring to the court’s Services Project attention. A recommendation section The BJA conducted an evaluation of of the report suggested conditions of the PTS project in March 1999.24 This release that sought to help minimize was constructed as both a process and the risks that might have been identi- an impact evaluation, and the findings fied. For example, if an accused person were developed using comparative had been charged with an offense baseline data collected in 1997 prior to involving domestic violence, the PTS the implementation of the project.25 report might recommend that release The evaluation reports provide a com- be conditional on the accused person’s prehensive breakdown of the findings having no contact with the com- in terms of changes in bail amounts, plainant while the case was pending. the use of warnings, and the numbers In a departure from the model of of people detained awaiting trial. The PTS developed by the Vera Institute, detailed figures are beyond the scope the BJA added another component to of this paper. In summary however, it the South African demonstration proj- was found that the project produced ect: the management of witness wait- mixed results.

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The evaluation revealed that the over one-fifth (21 percent), while the project did not have a significant proportion of accused persons who impact on the profile of detainees had bail denied was halved (Figure 2). awaiting trial across the three sites. It also found that there was no signifi- PTS Staff Perceptions cant change in the bail amounts set at of the Project the Durban and Johannesburg courts. To find out what participants thought Notwithstanding these sobering find- of the PTS project, I conducted inter- ings, significant positive changes in views with a total of 18 people directly the administration of bail at the involved in the conceptualization Mitchells Plain site were identified.26 and implementation of the project. The median bail amount set by the These included senior officials within Mitchells Plain court fell significantly the Department of Justice, previous after the introduction of the PTS project (from R500 to R300). The propor- employees of the BJA, court personnel tion of prisoners awaiting trial from from the Justice Department and the Mitchells Plain who had been granted South African Police Service, and fun- bail (i.e. accused who could not afford ders of the PTS project. Most of the the bail set by the court) showed a justice officials interviewed thought sustained reduction over the period the project had potential and showed of the research. This figure decreased positive results. For example, the from the baseline of 75 percent in June interviewees pointed out that the 1997 (the Mitchells Plain PTS office number of detainees awaiting trial became operational in August 1997) who originated at Mitchells Plain to below 40 percent in March 1998, court halved during the project’s lifes- after which it stabilized at around 40 pan. Moreover, information about percent. This decline is an indication arrested accused—such as where they that the PTS project provided judicial lived and their employment status— officers with reliable information on was thought to be helpful to judicial the amount of bail individual accused officers in deciding whether to release detainees could afford to deposit with such accused persons and, if so, on the court. what conditions. The number of prisoners awaiting Erstwhile bail officers and supervi- trial from Mitchells Plain declined as sion officers interviewed felt the PTS the proportion of accused persons project had a positive effect on the day- released on warning—without any to-day running of the courts. conditions other than to appear on Specifically, they felt that the project their specified court date—increased created a framework for informed from 40 percent to 50 percent decision making around detention between June 1997 and February decisions. It was noted that the direct 1999.27 Moreover, the use of money link of the PTS office to the SAPS bail in Mitchells Plain decreased from criminal record database saved signifi- a third (34 percent) of all cases to just cant time in establishing the criminal

128 Open Society Case Studies

Figure 2: Bail Decisions at the Mitchells Plain Demonstration Site, June 1997 and February 1999

60% 50 50%

40 40% 34 30% 21 20% 9 10% 4

% released on warning % released on money bail % bail denied

June 1997 Feb. 1999

record of accused persons. These ben- tion of accused persons was seen as efits were not limited to Mitchells impeding court productivity from the Plain. prosecution’s point of view. Not all feedback was positive, however. Some interviewees, particularly Justifications for Not Sustaining judicial officers, felt that the closure of the Pretrial Services Project the project did not negatively affect the In September 1999, the BJA handed functioning of the courts. Some prose- over the PTS project to the cutors interviewed complained that Department of Justice. The handover the PTS office delayed the holding of of the project was governed by a bail hearings given the time it took to Memorandum of Understanding verify information provided by (MoU) signed in September 1999 by, accused persons. It was also felt that among others, the minister and the the PTS office unnecessarily duplicat- acting director-general of justice. In ed the work of other agencies by, for this MoU it was agreed that the BJA example, independently collecting would relinquish responsibility for the information already available in the PTS project and donate all equipment, police’s investigation dockets. In light supplies, and materials to the Ministry of this, the daily screening and evalua- of Justice. The BJA compiled a start-up

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Pretrial Detention

and training manual for the establish- ponents of the original PTS project are ment of new PTS sites, which formed the witness waiting facilities and asso- part of the handover documentation. ciated services. The Department of Justice undertook It is a widely held view that things to integrate PTS at the existing three started deteriorating soon after the sites into its day-to-day operations and BJA handed the project over to the to consider drafting legislation in sup- Department of Justice. A number port of PTS. The department further of shortcomings help explain why undertook to allocate the necessary the project did not take off as planned, much less continue and expand after the formal transfer of responsi- Little of the original PTS model remains bility for its administration to the Department of Justice. operational at the pilot sites and the project has not expanded nationally. Alignment of PTS with Justice Department Objectives The experiment with pretrial services took place at the same time that the resources to maintain the existing PTS South African government launched sites and to roll out PTS offices a major initiative to transform the to other court centers throughout technological infrastructure of the the country.28 entire justice system. Some of the The provisions of the MoU reveal components of PTS operations were the extent of the political support that not easily assimilated into this mod- existed, at both the ministerial and ernization plan. departmental levels, for integrating A centerpiece of the South African PTS into the mandate of the Justice government’s National Crime Department and replicating it nation- Prevention Strategy (NCPS), which ally. Yet, at the time of writing, little of was launched in 1996 and introduced the original PTS model remains oper- a comprehensive new approach to ational at the three pilot sites, and the addressing crime, was the develop- project has not expanded nationally. ment of the Integrated Justice System The equipment funded by the BJA has (IJS). The strategic goal of the IJS fallen into disrepair, and the original was to integrate and automate the dif- staff has been redeployed. The police ferent aspects and components of the collect and verify some information on criminal justice system, and it was the people they arrest, but this is not backed by an interdepartmental board done specifically to assess accused per- (the IJS Board) that itself comprised sons’ risk of not complying with their representatives of the departments of conditions of bail and assist judicial Justice, Correctional Services, Social officers in their pretrial decision-mak- Development, and Safety and Security, ing process. The only remaining com- as well as the South African Police

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Service and the National Prosecuting with those being developed by the IJS Authority.29 In short, the justice sector prior to the handover of the project to as a whole was preoccupied at this the Justice Department. Cooperation time with the successful introduction with the technocrats within the rele- of new technology. vant government departments might Some officials at the justice depart- have ensured the sustainability of the ment, moreover, believed then that key BJA’s model. aspects of PTS would be adequately covered by the new system and felt Institutionalizing the PTS Project that the system would do away with There were no institutional struc- “the explicit need for the separate tures within the Justice Department to institution of a PTS environment.”30 ensure the continued operation and Today, a key component of IJS—the replication of PTS; judicial officers Court Process Project (CPP)—pro- and court personnel at the operational vides the same linkage of fingerprint level were unaware of the training and criminal record information that manual for the establishment of new the BJA piloted.31 PTS sites developed by the BJA. While it appears that much energy Moreover, there were a number of was put into developing the relation- other obstacles to the institutionaliza- ship between the BJA and the tion of the PTS model: Department of Justice, what is absent is any real commitment to cooperation Time and Capacity Constraints between the BJA and the senior mem- The BJA helped implement four dis- bers of the IJS board despite the close crete projects over a seven-year period, proximity of their goals. This raises including the development of a prose- the question: Had there been closer cution taskforce on vehicle hijacking; collaboration between the two, would a prosecution-led anti-rape strategy; there have been a more concerted and a plea-bargaining project. Given effort to ensure that the PTS compo- the scale and complexity of each of nents were more strategically incorpo- these projects, and the limited capaci- rated into the broader IJS initiative? ty of the BJA, the two-year period the One of the views offered by a former BJA allocated to the PTS project BJA employee is that the BJA would (August 1997 to September 1999) was have benefited from a strong, locally insufficient to establish and institu- based (i.e. South African) board that tionalize a PTS model adequately could have facilitated this cooperation within the criminal justice system. as well as a range of other transitional Moreover, delays in setting up PTS processes on behalf of the project.32 sites in Durban and Johannesburg In retrospect it would have been meant that these sites were functional helpful if the BJA had made a concert- for less than two years before the BJA ed effort to ensure that its information ceded responsibility for the project to technology systems were compatible the Justice Department. It is not sur-

Justice Initiative 131 Pretrial Detention

prising that the results in these two full three-year budget cycle (the time sites were the most disappointing. period for which South Africa’s government departments plan their Reliance on External Funding expenditure with the national treas- The practice of donor-funded foreign ury) and therefore was not able to consultants providing management monitor how the project was incorpo- support for a government service is rated into the Justice Department’s fraught with difficulties. If funding for new spending flow. a new project is drawn from the rele- The problem most commonly vant government department from the raised by interviewees was the lack of outset it is more likely the project will funding for PTS following the handover. According to documentation, as well as interviews with court person- The practice of donor-funded foreign nel at the pilot sites, there was uncertainty about funding for the project. consultants providing management While it appears that some funding support for a government service is was allocated for the project at the national level, dedicated funding for fraught with difficulties. PTS did not filter down to the provinces. The perception of personnel in the provincial offices of the be aligned with the broader strategic Justice Department was that they were plan of that department. It also expected to draw from their core budg- ensures that there is a clear and realis- ets to support the continuation and tic appreciation of the costs involved. expansion of the project. Moreover, human resources departments in the relevant government Lack of Interdepartmental Cooperation agencies would be obliged to create This PTS project required a sustained specific job posts to staff a project and effort in ensuring interdepartmental ensure that a salary line item is includ- budgeting and cooperation. However, ed in the overall departmental budget. the project was promoted strongly as a One year after the commencement Department of Justice project. In light of the PTS project, the BJA sought of this, there was little assurance from support from the senior bureaucra- the outset that the departments of cy—at the deputy director-general Safety and Security and Correctional level—in the Department of Justice. Services would continue to offer their This delay cost the BJA the necessary support and personnel once the proj- financial and personal support for the ect was handed over to the Justice national expansion of the PTS project. Department. In fact, there were no As a result, financial support for PTS supporting structures or guidelines dwindled soon after the handover of for partner agencies such as the SAPS, the project. The BJA withdrew from resulting in the withdrawal of key staff the project before working through a seconded to the pilot sites by the police

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and the Department of Correctional to seconded staff members, the BJA Services shortly after the handover. did not pay salaries, did not formally On the face of it, the BJA acted influence their performance evalua- correctly in gaining the buy-in of tions or promotions, and could not the “right” role players. The accepted formally reward or discipline them. wisdom is that one needs support This awkward relationship compelled at the top level in order for a project the BJA leadership to rely on informal to be institutionalized. The minister incentives to encourage good perform- of justice was fully supportive of PTS. ance. Moreover, government employ- He gave the project generous publicity ees who were seconded to the PTS and co-opted the support of his project complained that their work for counterparts in other government departments. It can be argued, however, that the BJA underestimated the The BJA underestimated the importance and the amount of time it would take to gain the cooperation importance and the amount of time and trust of the bureaucracy and oper- it would take to gain the cooperation ational staff within all the relevant and trust of the bureaucracy. government departments to ensure the successful implementation of the project at the level of the three demonstration sites. the project went unappreciated and unrecognized by their government 33 Staffing Dilemmas employers. At the beginning of the BJA’s operations, a number of senior government The Political Environment officials were reluctant to implement a It is important to understand the polit- PTS project because of its potential ical environment at the time the PTS cost and drain on departmental budg- project was launched. The minister of ets. As a result, the BJA used existing justice was a veteran of the anti- Justice Department and police person- apartheid struggle and an enthusiastic nel, seconded to the PTS project, to implementer of the government’s new administer and implement the project. transformational agenda. It has been This was necessary to show that argued that the minister managed the government could implement PTS transformation of his department without having to hire new skilled per- rather clumsily, unnecessarily alienat- sonnel or train existing personnel at ing significant sections of his largely considerable expense to the state. white professional staff (notably prose- 34 The BJA consequently negotiated cutors and magistrates). The period with various government departments during which the PTS project was to obtain the requisite seconded staff being implemented was characterized to fill the operational positions of the by ongoing wage disputes between the PTS project. This meant in respect department and prosecutors, resulting

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in strike action as well as an acrimo- of the Justice Department, PTS nious High Court battle between a received significantly less support number of white state attorneys and from the new minister, who had other the Justice Department regarding the priorities on his agenda. minister’s affirmative action appoint- ments. It is possible that the PTS proj- Potential for Pretrial Services to ect failed to thrive because of a gener- Succeed in South Africa Today al resistance by a significant number of magistrates and prosecutors to The Prison Population in South Africa the broader transformational agenda According the International Centre for of the justice minister. Prison Studies, South Africa’s prison Hostility toward the justice minis- population rate is the 10th highest ter on the part of judicial officers was in the world (excluding a few small especially evident outside the minis- island states).35 In September 2006, ter’s Western Cape powerbase. This South Africa’s prisons, built to accom- may be another reason why the modate 115,000 inmates, were hold- PTS demonstration sites outside of ing 158,500 prisoners.36 Of these, Mitchells Plain (which is located in 43,600, or 28 percent, were unsen- the Western Cape) were the least suc- tenced. South Africa’s prison popula- cessful. While there was no blatant tion rate of 344 per 100,000 of refusal to implement the PTS project the general population is more than at any of the three demonstration twice that of neighboring countries sites, there seems to have been a sub- Zimbabwe and Lesotho. tle undermining of the process in What are the options for mitigating Durban and Johannesburg. South Africa’s prison overcrowding problem? If the government wished Project Dependency on to reduce overcrowding from pretrial One Champion detainees, should it focus its efforts Another issue that should not be on bail reform—that is, reducing underestimated is the extent to which the number of people placed in projects are the personal idée fixe of a prison—or shortening the amount particular individual (in this case, of time it takes to adjudicate the Minister Omar). Minister Omar joint- cases of those in custody? And what ly conceptualized and developed the benefit might the resurrection or PTS project with the BJA and promot- revitalization of Pretrial Services bring ed and supported the project during to that effort? his term in office. A new justice min- The answer depends in part on the ister had been appointed by the time profile of the prison inmates and the project was handed over to the the sources of prison overcrowding. Justice Department. While the new Is overcrowding the result of exces- minister officially undertook to inte- sively long stays in custody while grate PTS into the broader programs defendants await the outcome of trials

134 Open Society Case Studies

Figure 3: Unsentenced Prisoners in Custody Three Months or Longer, 1996—2005

12,000

10,000

8,000

6,000

4,000 3-6 months 2,000 6-12 months more than 12 months

0 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005

Source: Judicial Inspectorate of Prisons

or the result of a consistently high decisions, might help in several ways. number of accused persons being A number of prisons contain substan- sent to prison to await trial, even if tially higher than average proportions their stay there is relatively short? The of unsentenced prisoners. For exam- answer also depends on what changes ple, South Africa’s most overcrowded the government can effectively intro- prison at the end of 2005, duce, irrespective of the sources of Johannesburg Medium A Correctional overcrowding. Centre, contained 5,599 unsentenced The direct or immediate contribu- and 152 sentenced prisoners. The 38 tion of Pretrial Services to the solution prison was built for 2,630 inmates. of these problems would be modest Moreover, a large number of people overall. Most inmates in South Africa are in detention because of the gener- (72 percent) are sentenced prisoners ally excessive amount of bail, the aver- and it is this group (particularly those age duration of pretrial detention is serving long sentences) that is cur- long, and the conditions for unsen- rently driving the growth in the South tenced inmates are unsafe. African prison population.37 The overall number of unsentenced inmates The Problem of Excessive Bail has decreased in recent years. And yet The Judicial Inspectorate of Prisons bail reform, and especially the ration- argues that a significant number of alization of pretrial processes and accused persons should not be in pre-

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trial custody.39 In particular, the Conditions of Detention Inspectorate points at the 12,700 The conditions for unsentenced unsentenced prisoners (almost a third inmates are far worse than for their of all unsentenced prisoners) who, in sentenced counterparts. Unsentenced February 2006, had been granted bail inmates do not have access to rehabil- but were unable to pay the amount set itation programs, they receive no by the court.40 The courts did not have training or schooling, have little access an objection to pretrial release for to recreational activities, and can await these people, provided they deposited trial for periods ranging from a couple a sum of money with the courts. of days to a number of years. However, as a result of insufficient Unsentenced prisoners also struggle information on the financial means of to get access to medical treatment, the accused or an unwillingness by reading material, bedding, and exer- the courts to take into account the cise. Even modest reductions in the personal circumstances of the number of unsentenced inmates accused, the courts imposed bail would have great significance for the which thousands of accused simply population of pretrial detainees. could not afford. Conclusion Prolonged Detention While the length of detention has Unsentenced prisoners spend lengthy increased since the mid 1990s and periods of time in custody awaiting remains at a high level, the number of finalization of trial and sentence. We unsentenced prisoners has declined know that from June 1999 to since 2000, albeit quite modestly in December 2001 the average number most years. The decrease in the num- of days in custody for this population ber of pretrial detainees cannot be increased from 130 to 145 days, or an attributed to one specific event but average of five months.41 rather to a broad range of factors, Data provided by the Judicial including a high-profile lobbying cam- Inspectorate of Prisons reveal that the paign by the Judicial Inspectorate of annual average number of unsen- Prisons for a reduction in the number tenced prisoners in detention for three of unsentenced prisoners; the intro- months or longer increased substan- duction of an integrated case flow tially between 1996 and 2000 and management system for South remained at a high level thereafter. Africa’s criminal courts; legislation Those in detention for more than 12 allowing for the expeditious reduction months increased phenomenally over of bail amounts;43 the promotion this period: from 192 detainees in of the use of police bail;44 a drive by 1996 to 6,006 in 2005 (Figure 3).42 the Department of Correctional Put differently, in 1996 only 0.6 per- Services to increase the use of correc- cent of unsentenced prisoners spent tional supervision in lieu of pretrial more than one year in prison; in 2005 detention;45 and the introduction of almost 13 percent did so. plea bargaining.46

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Pretrial Services would likely however, have only a limited impact on reduce the number of unsentenced the duration of detention. A range of prisoners who are granted bail at unaf- other factors outside the control of fordably high amounts. A PTS pro- PTS, such as the efficiency of the gram could ascertain and verify an police’s investigations, the availability accused person’s income and his of witnesses, and the competence of access to money held by relatives and prosecutors and defense lawyers, may friends. A PTS program would also all influence the length of the pretrial encourage judicial officers to make use period and the duration of the subse- of nonfinancial conditions of bail quent trial. based on the circumstances of and risk posed by the individual accused. Moreover, a PTS program is likely to Pretrial Services would almost certain- recommend the pretrial release (either on money bail or some nonpecuniary ly reduce the number of unsentenced condition) of accused persons who are prisoners who are granted bail at currently denied bail altogether because judicial officers lack reliable unaffordably high amounts. and verified information about them and not because the accused persons in question pose levels of risk that war- South Africa’s PTS project was rant detention. short lived and was tested in only three By helping to reduce the number of sites for a limited period. The data is unsentenced prisoners, a PTS program thus inconclusive. Even so, some would indirectly contribute to better promising trends emerged from the conditions of detention. Everything Mitchells Plain site in relation to the else remaining equal, lower rates of administration of bail. These included overcrowding in detention facilities the reduction in the median bail should provide the average detainee amount, the increase in the use of with more space and better access to warnings as an alternative to money recreational facilities, medical treat- bail and incarceration, and the result- ment, and food. ant decrease in the number of people An effective PTS program could in Pollsmoor Correctional Centre have some influence on the average referred from Mitchells Plain court duration of detention. PTS would allow who had been granted bail. Moreover, judicial officers to conduct bail hear- the decision to allow more accused per- ings more efficiently. Moreover, a sons to await trial in the community reduction in unsentenced prisoners did not have a negative impact on the should result in fewer bail applica- absconding rate. tions, thereby freeing court time for PTS is no panacea for South holding trials. As trials are finalized Africa’s inefficient and costly pretrial more quickly, the average duration of detention regime. PTS can, however, detention should decline. PTS would, gather better and more detailed infor-

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Pretrial Detention

mation on accused persons than judi- conditions of their release. PTS could cial officers, prosecutors, or defense assist judicial officers in coming to lawyers typically have at their disposal fair and rational pretrial decisions— and use it to guide better decisions and an important service in a country minimize the chances that a dangerous like South Africa where the poor criminal will abscond or that an indi- are disproportionately likely to be vidual is wrongfully detained. Properly detained awaiting trial as they cannot applied, such services can encourage afford to post bail. In sum, PTS has courts not to rely unduly on pretrial the potential to balance individual detention by minimizing the risk of rights to liberty with society’s interest defendants’ failing to comply with the in public security.

Notes

Louise Ehlers is director, Criminal Justice Initiative at the Open Society Foundation for South Africa.

1. This paper is not intended as an evaluation of the BJA or its work but as a look at what can be learned about criminal justice transformation from one of the few projects that has focused specifically on the pretrial detention population in South Africa.

2. For internal evaluations of the Pretrial Services project by the BJA, see R. Paschke, Process and impact assessment of the pretrial services demonstration project (Cape Town: Bureau of Justice Assistance [BJA], BJA Report No. 3, March 1999); M. Baird, Update on the Bureau of Justice Assistance (report to Dullah Omar, Minister of Justice, and Hishaam Mohammed, Regional Office of Justice, Western Cape). See also R. Paschke, Accused, their charges and bail decisions in three South African magistrates courts—baseline information prior to the implementation of pretrial services (BJA, BJA Report No. 2, November 1998); and R. Paschke, Pollsmoor awaiting trial population profile and a study of its appearance decisions in Mitchells Plain Magistrates Court: Preliminary results and the role of the pretrial services demonstration (BJA, November 1997). For a more critical appraisal of this impact, see W. Scharf, and B. Tshela, “Stumbling at the first hurdle? Pretrial services project: Lost opportunity in the transformation of the South African justice system,” in Jonathan Burchell and Adele Erasmus, eds., Criminal justice in a new society, essays in honour of Solly Leeman (Cape Town: Juta, 2003).

3. Criminal Procedure Second Amendment Act No. 75 of 1995.

4. Jeremy Sarkin, Esther Steyn, Dirk van Zyl Smit and Ron Paschke, “The Constitutional Court’s Bail Decision: Individual Liberty in Crisis? S v Dlamini,” South African Journal of Human Rights 16 (2000), 297.

5. Criminal Procedure Second Amendment Act No. 85 of 1997.

6. See E. Steyn, “Pretrial Detention: Its Impact on Crime and Human Rights in South Africa” Law, Democracy and Development 4(2) (2000); and G. Bursey, “Bail – time for a return to sanity,” De Rebus 33 (September 1999).

7. Scharf and Tshehla, for example, claim that crime escalated dramatically between 1994 and 1996. They contend that the time lag between the dismantling of the old South African system and the construction of the new proved to be a fertile breeding ground for crime. See Scharf and Tshehla, “Stumbling at the first hurdle?” in Burchell and Erasmus, Criminal justice in a new society (2003).

8. One case that received much media coverage was that of an accused man released on bail who murdered a six-year-old girl shortly before she was to testify against him for allegedly raping her.

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The man had been released on bail of R2,000 despite the fact that the police were investigating two other allegations of rape against him and that the police were opposed to the granting of bail. See: “Mamokgethi: and justice for all?,” Weekly Mail & Guardian, July 31, 1998.

9. The Citizen, September 27, 1996.

10. Fast Facts (Johannesburg: South African Institute of Race Relations, March 1997).

11. See M. Schönteich, “Criminal justice policy and human rights in the New South Africa,” Law and Justice Journal 3, No. 2 (2003).

12. Prevention of Organised Crime Act No. 121 of 1998.

13. Criminal Law Amendment Act No. 105 of 1997; see also J. Sloth-Nielsen and L. Ehlers, A Pyrrhic victory? Mandatory and minimum sentencing in South Africa, ISS Paper No. 111 (Pretoria: Institute for Security Studies [ISS], 2005).

14. Correctional Services Act No. 111 of 1998, Chapter VII.

15. Eric Pelser, “‘Operation Crackdown’: The New Policing Strategy,” Nedbank/ISS Crime Index 4(2), (2000), 7–10.

16. See Marion Edmunds, “Restricting bail may limit rights, experts say new bail laws will paper over the cracks,” Mail and Guardian, June 6–12, 1997.

17. M. Schönteich, Making courts work. A review of the IJS Court Centre in Port Elizabeth, ISS Monograph No. 75 (ISS, October 2002).

18. The Vera Institute and its South African subsidiary, the Bureau of Justice Assistance, were instrumental in conceptualizing and developing this intervention and initiated the idea within the South African justice ministry. A project committee chaired by the minister of justice oversaw the BJA. With the exception of the director, who was from the Vera Institute, the BJA’s staff were South African. During its operations in South Africa, the BJA was funded by the Open Society Foundation for South Africa, Atlantic Philanthropies, and Chase Manhattan Bank and received some financial support for administrative functions from the Department of Justice.

19.“History,” Vera Institute of Justice, http://www.vera.org/section8/section8_4.asp, accessed January 15, 2007.

20. Address by Dr. A.M. Omar, minister of justice, at the launch of the Pretrial Services Office, Mitchells Plain Magistrates’ Court, August 29, 1997.

21. Letter from Minister Omar to the Minister for Safety and Security, Sydney Mufamadi, inviting the latter to the launch of the Pretrial Services project, August 13, 1997.

22. Paschke, Process and impact assessment of the Pre-Trial Services Demonstration Project, BJA Report No. 3 (BJA, March 1999).

23. The BJA also played a role in opening a PTS office in Port Elizabeth in 1999, shortly before the PTS project was handed over to the justice department. The work of the Port Elizabeth PTS office was neither managed nor evaluated by the BJA. See The Integrated Justice System Court Centre. A blueprint of the Eastern Cape experience April 1999 – February 2002 (Port Elizabeth: Business Against Crime, 2002).

24. Paschke, Process and impact assessment (BJA, March 1999).

25. See Paschke, Accused, their charges and bail decisions in three South African magistrate’s courts – baseline information prior to the implementation of pretrial services, Report No. 2 (BJA, 1998).

26.Interviews with court personnel indicate that the Mitchells Plain site went furthest in implementing the PTS model and experienced less bureaucratic and political resistance than the other two sites.

27. Paschke, Accused, their charges and bail decisions (BJA, 1998), 31–32.

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28. Memorandum of Understanding, between the South African Ministry of Justice and the Bureau of Justice Assistance, September 2, 1999.

29. H. Ebrahim, The Integrated Justice System: How far we’ve come, SDR 2, No. 3 (2003).

30. “Embedding the functionality of the Pretrial Services (PTS) demonstration in the Court Process Project (CPP)” (Department of Justice).

31.Pieter Du Rand, Chief Director, Court Services, Department of Justice, Towards an integrated justice system approach (Cape Town: Centre for the Study of Violence and Reconciliation, Criminal Justice, a new decade: Consolidating transformation, conference paper, February 7–8, 2005).

32. A South African BJA board was eventually established in 2002, but this was only after the handover of the PTS project to the Department of Justice.

33. Michelle India Baird, Ten lessons learned from the Bureau of Justice Assistance (New York: Vera Institute of Justice, unpublished briefing paper, October 2005), 7.

34. See, M. Schönteich, Lawyers for the people: The South African prosecution service, ISS Monograph Series, No. 53 (ISS, March 2001). Magistrates are judicial officers who work in South Africa’s lower courts. All three PTS demonstration projects were situated at the level of the lower courts.

35. World Prison Brief (London: International Centre for Prison Studies [ICPS]), www.prisonstudies.org/, accessed January 16, 2007.

36. Statistics (Department of Correctional Services), www.dcs.gov.za/WebStatistics/, accessed January 16, 2007.

37. C. Giffard and L. Muntingh, The effect of sentencing on the size of the South African prison population (Cape Town: Open Society Foundation for South Africa, 2006).

38. Annual Report 2005/2006 (Cape Town: Judicial Inspectorate of Prisons), 20, http://judicialinsp.dcs.gov.za/Annualreports/ANNUAL%20REPORT%202006.pdf, accessed January 16, 2007.

39. The Judicial Inspectorate of Prisons is a statutory body mandated by Parliament to monitor prison conditions and report on the treatment of prisoners.

40. Annual Report 2005/2006 (Judicial Inspectorate of Prisons), 28–29, http://judicialinsp.dcs.gov.za/Annualreports/ANNUAL%20REPORT%202006.pdf, accessed January 16, 2007.

41. T. Leggett, A. Louw, M. Schönteich, and M. Sekhonyane, Criminal Justice in Review: 2001/2002, ISS Monograph No. 88 (ISS, November 2003).

42. Annual Report 2005/2006 (Judicial Inspectorate of Prisons), 14, http://judicialinsp.dcs.gov.za/Annualreports/ANNUAL%20REPORT%202006.pdf, accessed January 16, 2007.

43. One of the key contributors to the awaiting trial population is unaffordable bail. A 2001 amendment to the Criminal Procedure Act allows the head of a prison to apply to court on behalf of prisoners in a particular facility to have their bail amounts reduced.

44. In respect of minor offenses, the Criminal Procedure Act allows for the police to grant bail without the case’s going to court.

45. The Criminal Procedure Act allows three options for release of an accused prior to trial. Namely, release on warning, bail, or under the supervision of a correctional officer in lieu of bail. The Departments of Justice and Correctional Services are promoting the latter option.

46. An amendment to the Criminal Procedure Act in 2001 introduced a formalized system of plea and sentence agreements to achieve a quicker turnaround time on cases, thereby reducing both the backlog in the lower courts and the number of prisoners awaiting trial.

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Pathway to Justice: Juvenile Detention Reform in the United States

D. Alan Henry considers the problem arrest.” This paper will discuss juve- of juveniles in pretrial detention in the nile detention—the detention of juve- United States and a novel project that niles charged with a criminal act pend- reduced their number. ing disposition of their charge—and In the United States, the presumption discuss one simple way to reduce it of innocence is a constitutional guar- that has been shown to work in vari- antee and a pillar of the criminal jus- ous different states of the nation. tice system. Perhaps as a result, there In the United States, the juvenile are numerous pretrial service agencies justice system was created to empha- throughout the nation that provide size—to a greater degree than the risk assessments to judicial officers to adult system—rehabilitation and care- aid in the release or detention deter- taking. For this reason, juveniles are mination, as well as supervision serv- almost always detained separately ices for persons deemed to require from adults, go to a different court them for safe pretrial release. These than adults, and have different sen- supervision services include drug test- tencing guidelines if convicted.2 ing, monitoring of house arrest, elec- A central principle of this system tronic monitoring, and more. Given holds that the detention of juveniles the constitutional framework and the should be an exceptional event.3 existence of supervision alternatives to Unfortunately, this principle has been detention, it may be surprising to find more or less abandoned in favor of a that there are many pretrial detainees juvenile system that increasingly in the United States. resembles the adult criminal justice The problem of pretrial detention system and emphasizes incapacitation in the United States is complex and and punishment. As a result, the multifaceted, in part due to the differ- detention of juveniles in the United ent ways in which each of the 50 states States is anything but exceptional. has developed its criminal justice and Juvenile detention in the country corrections systems.1 To add complexi- increased by 72 percent between 1985 ty, the term detention in the United and 1995,4 and existing juvenile facili- States is used in various forms. A for- ties did not expand to handle this eign national found in the country increase. During that same period without proper documentation, for the number of detention facilities example, is held in “detention,” which categorized as overcrowded grew from is distinguished from being “under 24 to 178.5

Justice Initiative 141 Pretrial Detention

To address this problem a reform The Problem of Juvenile Detention effort called the Juvenile Detention The pretrial detention of juveniles, Alternatives Initiative (JDAI) was though not a new problem in the developed and supported by the Annie United States, has seen a significant E. Casey Foundation, a private philan- spike in numbers over the past 30 thropic organization. This reform years. Between 1985 and 1995, the effort has proven successful in reduc- number of juveniles locked up in ing juvenile detention—both admis- detention centers nationwide on an sions and lengths of stay—in pilot average day went from 14,000 to near- jurisdictions across the country. The ly 23,000—an increase of approxi- JDAI supported a number of local mately 72 percent.9 In the same peri- governments in effecting changes od, the number of overcrowded deten- that would reduce the placement of tion centers in the United States increased by 640 percent, from 24 to Juvenile detention in the 178 facilities. And the percentage of juveniles held in overcrowded facili- United States increased by 72 percent ties tripled, from 20 percent to 62 per- between 1985 and 1995. cent. For some observers, another statistic was the most disturbing: during the same period, operating expenses juveniles in detention. One tactic for public detention centers more than employed involved improving the doubled, from $362 million to $820 10 speed with which courts adjudicated million. cases, thereby reducing the number The growth in detention of juve- of juveniles detained pretrial. niles created many problems for What follows is a description of states, counties, and cities, and these part of this initiative and of the role problems followed a similar pattern. played by the Pretrial Services Crowding forced facility administra- Resource Center (PSRC),6 a non- tors to rearrange existing space to hold governmental organization based in the increasing numbers of juveniles. Washington, D.C.7 Between 1993 and Classroom and recreation areas were 2004, the Annie E. Casey Foundation the first to disappear, followed by the contracted with PSRC to support the implementation of double- and triple- efforts of the JDAI pilot sites to reduce bunking. The indefensible conditions the amount of time in adjudicating of confinement that resulted created criminal cases against juveniles.8 legal problems for governments. As part of this work PSRC interviewed Lawsuits were often filed challenging justice leaders, supported a process the legality of the crowding and the of deliberation and research into conditions of confinement that result- processing patterns, and helped local ed.11 Violent incidents in these facili- officials as they sought to achieve ties involving the incarcerated juve- greater efficiency and introduced alter- niles and facility staff became com- natives to detention. monplace.

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Case Studies

Finally, the courts stepped in, fre- g A further 34 percent were incarcer- quently ordering changes in facilities ated for technical violations of pro- to establish adequate care and safety bation requirements and status for the incarcerated juveniles. But offenses. These violations included missing a court date, breaking a rule court orders failed to ameliorate the of probation, or otherwise violating problems, given that many county and a court order; state justice systems, already financially strapped, were unable to absorb the g The remaining 29 percent were costs of implementing these orders. detained on violent charges, Even for relatively wealthy jurisdic- although some were not classified 12 tions there was a more basic and trou- as major. bling question: “Why is this happen- Similar findings surfaced in other ing and who’s to blame?” jurisdictions in the early- to mid- To add to the complexity of the 1990s. Because of the level of the offenses many of those detained did problem, criminal justice decision not appear to require incarceration. makers—judges, police, probation Nevertheless, the number of juveniles officers, prosecutors, and other elected detained continued to increase dra- officials—erroneously believe that the matically, and while federal courts juveniles detained are too dangerous were ordering change, the causes of to be released and few alternatives to the problem and its solutions detention exist. This perception has remained elusive. been proved unfounded by surveys that examine detention populations. A Better Way These reveal that many juveniles held in facilities are charged with minor “It is probably fair to say that no area of offenses and/or technical violations of domestic policy—not even welfare—has probation, not with the commission of been so thoroughly abandoned to misin- violent crimes. One of the JDAI sites formation, overstatement, oversimplifi- took a “snapshot survey” of the juve- cation, emotion and disregard for conse- niles in their county detention facility quences as has the arena of juvenile justice.” on a randomly chosen day in 1995, — Douglas W. Nelson, President, Annie E. revealing the following: Casey Foundation g Of the population of detainees, seven percent were charged with In 1993, the Annie E. Casey drug offenses; only one-sixth of Foundation launched a multiyear, those were charged with selling or multisite project known as the distribution of narcotics; Juvenile Detention Alternatives Initiative (JDAI). Its aim was to g Another 30 percent were detained demonstrate that governments could for property, public order, and establish better systems to accomplish “other” charges; the actual purposes of juvenile deten-

Justice Initiative 143 Pretrial Detention

tion. Experts in juvenile law, alterna- During a lengthy planning period tives, programming, management, in each site stakeholders and the foun- community outreach, and research dation jointly selected areas of primary were called together from around focus and prepared for the work of the the country to help the foundation initiative. Some places made efforts to devise a plan for taking on this nation- reduce time spent on special detention al problem. cases; others targeted the conditions of The idea that emerged and that confinement. In all of the sites local guided all subsequent efforts was sim- governments tasked newly formed ple but challenging: transfer responsi- committees of justice officials to study bility for the solution of the problem judicial processes and outcomes in from delinquent juveniles to adults in three main areas: positions of public power. According 1) How admission to detention deci- to Bart Lubow, the senior associate at sions were made; the foundation who has headed the national JDAI project since its incep- 2) How cases were processed through tion, “Even people who work in the the juvenile justice system from juvenile system largely operate as if arrest to disposition—the focus of things will only get better if the kids this paper; and start behaving differently…. JDAI took 3) Whether there were sufficient a different tack. It sought to change alternatives to detention for deci- the way the adults who operate, guide, sion makers to reach just deci- monitor, or support the system behave sions. as a prerequisite to any change in juvenile conduct and any improvements in In each site a JDAI manager was public safety or the quality of justice.”13 appointed. The manager’s primary job was to coordinate the various JDAI The Casey Foundation initially efforts within the jurisdiction and to identified five local governments in schedule technical assistance visits which to try to inculcate a more swift from the foundation as needed. and accountable process of administering juvenile justice. Each local government received a planning grant The Role of the Pretrial from the foundation and the opportu- Services Resource Center nity to receive financial support to PSRC was brought into the initiative implement changes proposed in the to provide case processing assistance planning process. The five sites to the sites. PSRC also worked with selected were Portland, Oregon; other technical assistance providers Sacramento, California; Chicago, such as the Center for the Study of Illinois; Milwaukee, Wisconsin; and Youth Policy in developing alternatives New York City. Two of the sites—New to detention (such as electronic moni- York and Milwaukee—subsequently toring) and risk assessment instru- decided to withdraw from the initiative ments that helped officials evaluate due to insufficient local support. objectively the needs of juveniles and

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the likelihood of reoffending. The So while judges and other actors focus of PSRC’s work was changing didn’t believe they were responsible the way cases were processed. PSRC for correcting the crowding problem, had extensive experience in case pro- they were willing to listen to informa- cessing and its impact on institutional tion and suggestions about changing crowding, but up to this point its work their practices to make the system had been limited to adult jail systems; more efficient and just. this was the first foray into the juvenile Multiple visits to each of the sites field. PSRC staff was relieved to find and one-on-one interviews with the that much of their experience was critical actors in the system—judges, transferable to the juvenile system and probation officers, prosecutors, that many of the techniques and data defense, and detention facility admin- requirements were virtually identical. istrators—were conducted. The interviews sought descriptions of all the The Diagnosis steps in the process, from arrest to It was not automatically assumed that disposition of the case. While the poor case processing was a part of the interviewers focused on the particular pretrial detention problem in the three work done by the person interviewed, sites. Each site had different time lines they also asked interviewees about the for case processing; some were faster system’s workings in general in order than the others. But while it was not to learn their perceptions of how the assumed that case processing delays system operated. were a cause of crowding, there was a The hypothesis, based on case strong and shared belief that a review processing efforts in other courts, was of case processing in the sites might that front line officials—prosecutors, reveal opportunities to increase effi- judges, and defense lawyers—often ciencies and improve the justice sys- did not know how long cases could tem, no matter how fast cases were take if not closely monitored and currently processed. had little understanding of the needs The difference between increasing and routines of their justice system efficiencies, on the one hand, and partners. reducing detention, on the other, JDAI’s assessment supported this was critical for site personnel. The hypothesis: interviews uncovered sig- assumption that case processing pat- nificant disparities between reality and terns must change in order to reduce the interviewees’ perceptions of how crowding was not welcomed by the other system actors worked. For all judges, prosecutors, or defense example, when a defense lawyer was lawyers. As one judge pointed out, asked how long it usually takes a pro- “My job is to adjudicate according bation officer to prepare a placement to the laws of this state. Where they recommendation,14 the response was, put them is up to [the facility adminis- “They have thirty days, but they always trator]. Finding beds is his job; not take longer so I take that into account mine.” when asking for my next court date.”

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Yet probation officials said they were of choices that if adopted would capable of making placement recom- decrease the time to disposition. mendations in a matter of days, if A question that arises when talking required, and that only a very few about improving case processing is, cases required more than two weeks. “why didn’t the governments do it In another instance, a juvenile court themselves?” There are two answers to judge believed that he was compelled this question: first, the local profes- 15 to provide a continuance in a case, sionals certainly had the capacity and “if the defense and prosecution the intelligence to identify areas for change; in fact, they often made suggestions during the interviews that The hypothesis was that front line were incorporated into the recommen- officials—prosecutors, judges, and dations and work plans. But as out- siders, the JDAI staff members were defense lawyers—had little understanding able to ask questions that would be dif- of the needs and routines of their ficult for system actors to pose to each other about how they work. justice system partners. Second, there is the reality of bureaucratic inertia, even in courts. Several interviewees cited a culture in agree”—only to find that another which certain processes were followed judge in his court sets a limit of one simply because they had always been continuance per case except in the followed. most desperate circumstances. Similarly, the interviews often The Intervention turned up forms and reports that Armed with information about how where not required, investigations that the systems actually worked and a list were no longer necessary, and other of suggested changes, JDAI proposed repetitive or wasteful practices.16 action, beginning with the acknowl- Finally, a map of the stream of deci- edged leader of the local juvenile jus- sions and actions taken by each actor tice system, the chief judge. The chief and agency in the justice system was would be thoroughly briefed on the created to see if any particular steps suggested/recommended changes; could be eliminated or combined with why they made sense, how they would another step and whether any of these improve case processing, the data sup- steps could be completed more quick- porting the need for the changes, and ly. Where possible, at least one exam- reports from other jurisdictions where ple was provided of another jurisdic- the proposed change(s) had already tion where the suggested change was been adopted. already in place. After obtaining the support of the The goal was to provide the key chief judge, other members of the actors with a series of options, a menu JDAI committee were briefed, either

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individually or together. Finally, the tion court. It was standard practice for committee members would decide the initial appearance judge to set the when the changes would be imple- next court date for 15 days thereafter, mented and in what order. during which the juveniles were rou- The actual changes introduced at tinely detained. By order of the chief each site varied, but they all fell into judge, this practice was eliminated: one of four categories: early disposi- every case in the initial appearance tion efforts; early prosecutorial screen- court is now heard the very next day in ing; continuances; and post-adjudica- its assigned court. This simple adjust- tion hearings. ment has significantly reduced unnec- Early disposition efforts began by first identifying the types of cases that might be concluded quickly—cases where there was general agreement as The case processing segment of the to their likely final disposition. These JDAI effort had a noticeable impact on the were usually minor cases in which the juvenile had little or no prior criminal detention problem in the selected sites. activity. Such cases would then be accelerated to their agreed upon disposition, usually by an identified judge who would hear the cases at a certain essary detention. In other sites, con- time every day. tinuances began to be scheduled for the earliest date available on the calen- Early prosecutorial screening was dar of the court; no longer did the con- very similar but involved all cases venience of the adversarial parties gov- entering the system. In some of the ern the selection of the next hearing sites, cases brought into the system date. after arrest would have to wait a lengthy period of time before the pros- Other changes included earlier ecutor’s office was ready to file a for- intervention by defense, better notifi- mal case in court. The juvenile would cation to defendants and victims as to have to remain in detention during court dates, earlier court action on pro- that time. With this screening acceler- bation violations and other adminis- ated, cases that would eventually be trative hearings, and tighter schedul- dropped could be dismissed immedi- ing rules for the court, all of which ately, saving detention and court time. reduced the number of continuances and length of detention. Continuances were addressed by the sites in three ways: reducing the In two of the sites it was found that number of continuances; reducing the detention time didn’t end when the number of days between continu- case was adjudicated. Juveniles were ances; or both. For example, in one held for weeks while probation offi- site all new cases were brought to a cers developed a plan for their super- single court for their initial appear- vision or tried to find a facility that ance and then assigned to an adjudica- could accept the juvenile. In one of the

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Changes in case processing time in Cook County and Sacramento County, 1994 and 1997

190 73 200 80 124 51 150 60

100 40

50 20

0 0 Cook County Average Case Sacramento County Average Case Processing Time, Days Processing Time, Days

1994 1997 1994 1997 sites the procedures for preparing Perhaps most important, all three placement plans were streamlined. sites were successful in substantially The new procedures still provided the reducing case processing times sentencing judge with the critical for juveniles in detention: 39 percent information needed but eliminated in Chicago, 28 percent in Portland, other extraneous material, resulting in Oregon, and 43 percent in a shortening of the time between the Sacramento.17 adjudication and the actual sentenc- The changes had other beneficial ing/placement. effects for the justice systems. In theory, decreasing case processing times The Impact should also decrease the rate of fail- The case processing segment of the ures to appear (FTA) for court. JDAI effort had a noticeable impact FTAs have a corrosive effect on the on the detention problem in the select- entire court system, as witness partici- ed sites. The data collected showed pation, delivery of evidence, and coor- that case processing times in all three dination of juries is affected at a siz- sites decreased significantly. In Cook able expense to the court. In addition, County (Chicago), the average delin- victims suffer: they must return quency case took 190 days to disposi- repeatedly to court and can become tion in 1994. By 1997, that number more disappointed with the justice had been reduced by 35 percent, to system with every delay. The new 124 days. Sacramento County lowered attention to case processing and its average case processing time for reduction in time seemed to carry over a delinquency case from 73 days in to FTAs, particularly in one site. 1994 to 51 days in 1997, a reduction of In 1994, the Juvenile Court in Chicago 30 percent. had a 38 percent failure to appear rate,

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according to the court clerk. By the were juveniles detained for shorter second quarter of 1995, when case periods, but the counties recognized processing changes had been imple- savings in the cost of running their mented, the rate had dropped below correctional facilities. 20 percent and remained there through the end of 1996, when track- Sustaining Change ing ended. The other two sites began Sustaining reform in any system is dif- with low FTA rates and maintained ficult, and the U.S. juvenile justice sys- them during the same period. tem is no exception. The work of the Cases can be processed differently without added cost; it involves simply a change in the rules governing how Officials identified two factors that long a particular activity will take. they believed were critical to the Although each of the sites was given a success of case processing reforms: planning grant and was eligible for up to $2.25 million over the first three collaboration and timing. years of the initiative to assist in implementing the many recommendations that were made, this money Casey Foundation continues to this was used primarily in other areas of day, with new sites being introduced to the initiative: developing a risk assess- the JDAI concepts and practices, while ment protocol and instrument, subsi- sustaining change remains one of the dizing the start-up of new alternative foundation’s goals.19 programs, hiring temporary help to As for the first three sites selected, allow system actors to continue their the reforms and improvements made day-to-day work while data collection by the sites during their JDAI experi- and/or research was undertaken, and ence are solidly in place at the time of other critical activities for the site. writing. The three counties discussed Finally, speedier court processing here have replaced the foundation’s reduces the harmful impact of delay support and taken on the fiscal on the juvenile. Slow justice postpones responsibility of continuing these the acceptance of responsibility. efforts after experiencing their eco- As Jeffery Butts, a noted researcher in nomic, social, and practical benefits. the area of juvenile courts claimed: “When the arrest for an alleged A Final Note offense is followed by months of inac- Officials at the three sites identified tion before disposition, the juvenile two factors that they believed were crit- will fail to see the relationship ical to the success of case processing between the two events.”18 reforms: collaboration and timing. In sum, JDAI’s efforts to reduce While other system changes—such case processing times had a signifi- as improving detention facilities or cant effect in the three sites. Not only introducing new programs—were

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introduced comparatively easily during detention reform. “You have to build the JDAI experience, most of these up trust before you take on case could be implemented by a single sys- processing,” said one of the judges, tem actor. Case processing changes, “get some little wins first.” A public however, needed the support of all the defender from another site agreed: system actors to occur, and as such, “Case processing takes such a high required a great degree of collaboration degree of collaboration and confidence and coordination between these actors. and trust among all the players…it Second, the site officials felt strong- probably would be easier to start with ly that case processing should not be a something that would be easy to site’s first effort in addressing juvenile achieve and build from there.”

Notes

D. Alan Henry is the former executive director of the Pretrial Services Resource Center, now known as the Pretrial Justice Center.

1. Under the U.S. Constitution, individual states are given great latitude as to the definition of criminal acts and the responses to such acts. As long as the state criminal laws do not conflict with the federal constitution, the federal government will rarely interfere.

2. For over 60 years the U.S. Supreme Court has recognized that minors are different in the eyes of the law. As one noted jurist stated, “Children have a very special place in life which law should reflect. Legal theories and their phrasing in other cases readily lead to fallacious reasoning if uncritically transferred to determination of a state’s duty towards children.” May v. Anderson, 345 U.S. 528, 536 (1953), (Justice Frankfurter concurring opinion). For a review of Supreme Court holdings related to the special circumstances of juvenile offenders see, for example, Bellotti v. Baird, 443 U.S. 622, 635 (1979).

3. For further background information about the juvenile system in the U.S., contact the Center on Juvenile and Criminal Justice, www.cjcj.org, or the National Juvenile Detention Association, www.njda.com.

4. Census of Public and Private Juvenile Detention, Correctional and Shelter Facilities, 1985–1995 (Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention, 1996).

5. Ibid.

6. The author was the executive director of the Pretrial Services Resource Center from 1982 to 2006.

7. For more information on the Pretrial Justice Center, contact: www.pretrial.org.

8. This account draws from the Casey Foundation’s series of publications, Pathways to Juvenile Reform, particularly one of the publications, No. 5, “Reducing Unnecessary Delay,” which I wrote for the Foundation in 1999. Persons wishing to learn more about this reform effort are encouraged to contact the Annie E. Casey Foundation at www.AECF.org.

9. See, “Reducing Unnecessary Delay,” 4. The statistics in this paper focus on the period immediately preceding JDAI’s reform effort. The number of detained juveniles in more recent years has in fact decreased. See percent change from 1997 to 2003 on the Juvenile Offenders and Victims 2006 National Report at the U.S. Department of Justice web site, http://ojjdp.ncjrs.org/ojstatbb/nr2006/downloads/chapter7.pdf.

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10. See “Planning for Juvenile Detention Reforms,” Pathways, No. 1 (JDAI, 1995), 10.

11. While pleas were sometimes filed by individual defense lawyers, in most instances national groups such as the Youth Law Center, the Juvenile Law Center, and similar not-for-profit entities either filed the initial pleadings or came in as partners to the filings.

12. See “Reducing Unnecessary Delay,” 5. The term “status offenses” traditionally refers to infractions such as missing school, out after curfew, and other minor infractions. Some of these juveniles were held simply because no adult could be located to take custody of them.

13. R. Stanfield, The JDAI Story: Building a Better Juvenile Detention System (Baltimore: Annie E. Casey Foundation, 1999), www.aecf.org/publications/data/overview.pdf., 9.

14. “Placement recommendation” is the term used for the recommendation that probation officers make about the type of supervision a child should receive. The word “placement” specifically refers to the juvenile being “placed” or assigned to a program (such as substance abuse or mental health treatment program), a school, or a type of facility (such as a group home or other correctional facility).

15. A “continuance” in the United States is a postponement of a hearing to a later date. Usually it is granted when parties in a case need more time to prepare and/or the court must wait for evidence or reports from other agencies.

16. For other examples, see, “Reducing Unnecessary Delay,” 40–41.

17. R. Stanfield, The JDAI Story: Building a Better Juvenile Detention System (Baltimore: Annie E. Casey Foundation, 1999), www.aecf.org/publications/data/overview.pdf.

18. See J. Butts, Waiting for Justice (Pittsburgh: National Center for Juvenile Justice, 1996), 4.

19. For up-to-date information on the AECF’s JDAI work please visit their web site http://www.aecf.org/initiatives/jdai/index.htm.

Justice Initiative 151 Pretrial Detention

Studies in Reform: Pretrial Detention Investments in Mexico, Ukraine, and Latvia

Efforts to improve the practice of pre- abuses in overcrowded prisons, and trial detention can employ many differ- promotes social and economic disloca- ent strategies—and encounter many tion for detainees and their families. different obstacles. Current and former Justice Initiative personnel Benjamin The Justice Initiatives Naimark-Rowse, Martin Schönteich, Programming Methodology Mykola Sorochinsky, and Denise Tomasini-Joshi describe three reform Consistent with international stan- efforts supported by the organization. dards, the Justice Initiative aims to rationalize resort to pretrial detention, and to encourage its use only where there is a genuine risk of flight, There should be less detention, obstruction of justice, or serious fur- shorter periods of confinement, ther criminal activity. In short, the Justice Initiative believes there should and better conditions for inmates. be less detention, shorter periods of confinement, and better conditions for inmates. It is also interested in strengthening the role of international Introduction norms, and especially human rights In many countries where the Open standards, in the process of adminis- Society Justice Initiative works, arrest tering criminal justice in the pretrial is often arbitrary, pretrial detention is phase, and it hopes to prevent dis- unduly prolonged, the conditions of crimination in the application of detention threaten public health, and detention. The Justice Initiative works vulnerable groups suffer dispropor- to accomplish these objectives by: tionate confinement. The hazardous situation to be found in many pretrial g promoting alternatives to pretrial detention centers around the world detention through research and provided the initial impetus for the advocacy, developing demonstration Justice Initiative to select pretrial projects, and providing technical detention as an important area of assistance to pretrial detention reform initiatives; focus. Excessive and/or prolonged pretrial detention not only undermines g promoting the adoption of interna- the rights to liberty and speedy tional pretrial detention standards process, but contributes to other rights and norms in domestic criminal

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justice systems, and highlighting vision center. These three country-spe- the gaps between a state’s de jure cific projects are reviewed in detail and de facto compliance with inter- below. national standards; Mexico: New Laws g positively influencing public opinion on the issue of pretrial deten- Require New Practices tion; and The use of pretrial detention in Mexico is widespread, rigid, and excessive—it g documenting and interpreting pre- is the rule, rather than the exception. trial detention initiatives which have Traditionally, Mexico’s federal and succeeded in reducing the use and state constitutions and criminal proce- the negative consequences of pretri- dure codes govern the use of pretrial al detention.

Justice Initiative Interventions In much of Mexico, pretrial detention is The Justice Initiative has developed a mandatory for persons charged with number of projects that aim to reduce and rationalize the use of pretrial a wide range of “grave” crimes. detention in compliance with international standards, and promote alternatives to pretrial detention. In 2002-05, the Justice Initiative worked in Latvia detention, which is mandatory for persons charged with a wide range to reduce the number of juveniles and of “grave” crimes. Contrary to interna- young adults held in pretrial deten- tional standards, which require that tion, through the establishment of pretrial detention be used in excep- pilot pretrial release programs in the tional and narrowly circumscribed form of bail supervision centers. circumstances only, Mexican law com- During these years, the Justice pels judges to apply pretrial detention Initiative also worked in Ukraine to purely on the basis of the crime with help develop and disseminate judicial which a defendant has been charged. guidelines which specify the manner Even charges of “non-grave” offens- in which international standards, es can result in pretrial detention if a designed to limit the use of pretrial conviction could result in a prison detention, can best be deployed by term. Even where pretrial release is judges in the context of Ukrainian law theoretically possible, the lack of alter- and practice. In 2004, the Justice natives to unconditional release dis- Initiative began working in Mexico to courages many judges from authoriz- reduce and rationalize the use of, and ing it. Mexico’s legal system also sets promote alternatives to, pretrial deten- onerous financial hurdles for the tion practices through research, public application of financial bail, making awareness raising, training, policy pretrial release virtually impossible for advocacy, and the development of a the indigent. pilot pretrial evaluation and bail super-

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Figure 1: Pretrial Detainees per 100,000 of the General Population, 1994-2006

85 90 79 78 80 72 75 65 71 70 63 60 57 52 53 46 50 50 40 30 20 10 0 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006

Unsurprisingly, given its rigid legal Mexico’s 100 million inhabitants took framework, Mexico’s pretrial detention an important step towards democratic data is predictably gloomy. In late governance. 2006, the country’s prisons housed Mexico’s new administration 214,500 inmates of which 92,600, or assumed power intending to signifi- 43 percent, were awaiting trial (up cantly reform the country’s archaic from 71,500 in 2001). The number of and inefficient criminal justice sys- detainees measured as a rate per tem.2 A significant part of this inten- 100,000 of the general population tion was rights related; officials were almost doubled from 46 to 85 per quick to acknowledge abuses under 100,000 between 1994 and 2006 the old system. However, widespread (Figure 1). Many Mexican prisons are concerns over public security quickly overcrowded, with the national medi- made criminal justice reform one of an occupancy rate hovering around the knottiest political challenges fac- 134 percent of capacity.1 They are also ing the new government. Reports of dangerous centers of violence and dis- high-profile kidnappings in Mexico ease, and have proven porous for vio- City and the unsolved murders of hun- lent criminals who appear to escape dreds of women in Ciudad Juarez per- with ease. vaded the national and international A new era in Mexican politics was media. Suspects were frequently ushered in with Vicente Fox’s victory coerced into making confessions, yet at the polls in 2000. With this peace- only three percent of crimes commit- ful transition from over seven decades ted resulted in a prosecution.3 In June of authoritarian one-party rule, 2004, hundreds of thousands of

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Mexicans marched through a dozen g Undertaking a cost-benefit analysis cities expressing their frustration at of Mexican pretrial detention prac- the crime situation and demanding tices and alternative models to pre- change. More accountable and sensi- trial detention. The results of such tive to public opinion in Mexico’s new an analysis will raise awareness of democratic dispensation, criminal the financial cost of the excessive justice policymakers were confronted use of pretrial detention and provide policy makers with valuable infor- with a dilemma faced by most liberal mation to craft more cost-effective democracies at one time or another— pretrial detention laws. the challenge of balancing individual rights to liberty with the societal inter- g Working with state-level policy mak- est of public security. ers and criminal justice officials to promote pretrial detention reform, The Intervention In mid-2004 the Justice Initiative Suspects were frequently coerced began to work on pretrial detention reform in Mexico. Several factors into making confessions, yet only motivated the decision to engage in three percent of crimes committed this effort. Mexico is an important resulted in a prosecution. regional power in Latin America, with a population and economy second only to that of Brazil. Should Mexico’s criminal justice reforms fail, it would and presenting trainings on rights- weaken the country’s democratization based pretrial detention practice in a process. Moreover, the Fox administra- number of Mexican states. tion’s patent—albeit diminishing— g Focusing attention on the social enthusiasm for criminal justice costs of Mexico’s rigid pretrial reform, the lack of a strong domestic detention policies by compiling and lobby for pretrial detention reform, disseminating personal histories of and the opportunity to strengthen individuals who have been detained local civil society capacity to provide awaiting trial. alternatives to pretrial detention, all The Justice Initiative’s long-term made a case for Justice Initiative goal in Mexico is to foster and engagement. entrench a fair, rational, and rights- From the beginning of its work in based pretrial detention regime which Mexico, the Justice Initiative partnered is respectful of international standards with a local non-governmental organi- and norms. Initially, however, the zation (NGO), Renace. The Justice objective was to reduce—and eventu- Initiative–Renace project has sought ally eliminate—the catalogue of grave to promote pretrial detention reform offenses, and thereby increase judicial through a number of interrelated discretion, through legislative change. activities, including:

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Pretrial Detention

The project would accomplish this Mexico, prompted the Justice Initiative goal by working at the federal and project to shift its focus from the state level to promote criminal federal to the state level. After investi- code reforms. gating a number of states in early By 2005, it was clear that the 2006, the state of Chihuahua was Fox administration would not be identified as being suitable for a proj- able to deliver on its much touted ect-sponsored intervention to promote criminal justice reform package. and entrench rights-based pretrial President Fox lacked a majority in detention practices in compliance with congress and proved unable to win international norms. approval of any significant legislative In mid 2006, Chihuahua’s legisla- reforms. Moreover, the details of the ture, with support from all three major administration’s reform package were parties, passed an ambitious package disappointing. While the reforms of legislative reforms which came into sought to introduce adversarial and effect in the state capital, Chihuahua oral proceedings and entrench the City at the beginning of 2007 (the presumption of innocence in the reforms are being implemented in a constitution it also—somewhat staggered manner). The reforms paradoxically—did not advocate radically change the way in which eliminating the “grave” crimes classifi- pretrial detention decisions are made cation for which pretrial release is and administered. Crucially, the tradi- prohibited. tional distinction between “grave” and “non-grave” offenses was repealed. As State-Level Opportunities a result, all defendants—including As the federal reform reforms stalled, those charged with a serious offense— a number of states became interested are eligible for pretrial release as in implementing criminal justice they await the their trials. (However, reforms of their own. Most reform shortly before publication the category proposals focused on radically over- was reinstated for five offenses.) hauling state-level criminal procedure Moreover, Chihuahua’s new criminal codes to introduce oral, adversarial procedure code provides statutory proceedings. An important compo- guidance to judicial officers to use nent of a number of state-level pretrial detention as an exceptional legislative reform packages is measure and only on grounds which reducing the number of crimes mirror those found in international classified as “grave” or eliminating standards (i.e. risk of flight, risk of the distinction between “grave” and offending, and interference with the “non-grave” offenses altogether. proper administration of justice). This unexpected development, The reforms brought about three whereby a number of states overtook specific challenges for Chihuahua’s the federal government as the van- criminal justice officials dealing with guard of criminal justice reform in pretrial detention issues, namely:

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g a significantly greater volume of In essence, the project offered to cases requiring a pretrial release/ develop an institutional model to detention decision by a judicial empower judicial officers and other officer; criminal justice officials to make informed and rational pretrial deci- g a greater proportion of cases requir- sions, and provide supervisory servic- ing a pretrial release / detention es for selected defendants, so that decision which involve serious the maximum number of pretrial crimes; and detainees can be released without g an increase in the number of alter- undue risk to public safety. natives to pretrial detention. In late 2006, after the project identified Chihuahua as a promising A bail evaluation and supervision candidate for reform and began dis- center would provide criminal cussions with the office of the state justice officials with trustworthy attorney general, a consortium of state entities (including the Secretariat for information on the potential risk Public Security and the three major a defendant may pose. political parties) asked the project to help the state manage the implications of its new, more progressive, pretrial detention law. In response the project The project created a pretrial deten- proposed to help develop and imple- tion working group in Chihuahua, ment a pilot bail evaluation and super- made up of senior members of the 4 vision center in Chihuahua City. Department for Public Security, the The key objectives of such a center attorney general’s office, congress, and are twofold. The first is to undertake the Supreme Court. The working a risk assessment of individual group is responsible for maintaining defendants by collecting information governmental support for the pilot bail from a variety of sources about evaluation and supervision center and detainees, and provide criminal justice ensuring effective collaboration and officials with trustworthy information coordination between the key state on the potential risk a defendant may agencies whose support is crucial to pose reneging on his conditions of the center’s success. The working release, and to assist judicial officers group, moreover, fosters local owner- in coming to a fair and effective ship in the development of the pilot release / detention decision based on center and can be used as a conduit objective and reliable criteria. The sec- through which local in-kind and finan- ond objective is to provide profession- cial support for the center can be al supervisory services for high-risk obtained to ensure its long-term sus- defendants who would otherwise not tainability. At the time of writing, key be released awaiting trial. state officials (and a few business lead-

Justice Initiative 157 Pretrial Detention

ers in Chihuahua) are trying to consol- administered. Policymakers have pro- idate support for a pretrial services vided little time and limited resources project. The impending application of for training the judges, prosecutors, the new code to Ciudad Juarez, police officers, and defense lawyers Chihuahua’s largets city, has raised the responsible for making the new sys- political stakes greatly. tem work effectively. Should the broader impetus for reform abate or Future Challenges even stall, it is likely to negatively As the project goes about promoting affect the reform of pretrial detention political reforms it faces a number of practices. challenges. At the operational level, Although the attorney general’s the project continues to grapple with a office and the Secretariat of Public recalcitrant judiciary which is uncom- Security have so far been ardent cham- fortable with the added responsibility pions of the center’s proposed mission, it remains to be seen how the system’s agents react in practice. As is the case in most of Mexico, Many judges fear criticism should they Chihuahua’s system of legal aid is release a defendant who subsequently weak and poorly funded. The defense bar is largely inexperienced at mar- commits a serious crime. shalling relevant information and arguing forcefully for pretrial release. A pretrial services center will have to of issuing a pretrial ruling for all be nimble with outreach and training detained defendants, irrespective of if its materials are to be put to use by the seriousness of the charge levelled all litigants. Lastly, there is time pres- against them. Understandably, many sure: the project must find ways to judges fear media criticism and public ensure that system actors do not sim- disquiet should they release an await- ply fall back on old habits and effec- ing trial defendant who subsequently tively thwart the reform. commits a serious crime or absconds. With a new president, Felipe The mistaken release of a dangerous Calderon, in power, federal-level crim- defendant could also discredit the inal justice reforms are still pending. work of the pilot center in the context At the time of writing, significant of a society plagued by violent crime. advances had been made that appear Further risks are posed by the to favor the chance of a progressive broader criminal justice reforms new federal pretrial detention policy underway in Chihuahua. It remains to which follows Chihuahua’s lead. For be seen whether the ambitious transi- example, recent drafts would signifi- tion from an inquisitorial to an accu- cantly limit the use of the “grave” satory, adversarial, and oral system can crime category. be accomplished given the massive To succeed, the project must antici- change this implies in how justice is pate and manage the challenges dis-

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cussed above. To date the project has defendant, a judge has to take into trained prosecutors and judges in sev- account the gravity of the alleged eral states on the use of bail evaluation offense, as well as the defendant’s age, and supervision services. Provided health, family circumstances, financial such trainings are repeated at regular situation, primary economic activity, intervals and expanded to defense and place of residence. lawyers and police officers, the anxiety The code further provides that a criminal justice personnel may have defendant can be placed in pretrial about the new pretrial detention sys- detention only if the offense with tem and the pilot center can be mini- which he is charged is punishable, mized. The project will also have to upon conviction, by more than three work with the media and civil society years imprisonment. An exception to groups to market the benefits of the this rule provides for pretrial deten- new system and bail evaluation and tion, even for defendants charged with supervision. minor offenses, in “exceptional cir- Over the longer term the project cumstances” where, for example, a hopes to establish an inter-state forum defendant has no fixed abode, has a to allow state-level criminal justice pol- record of absconding, or the true iden- icymakers and officials to exchange tity of the defendant cannot be ascer- good practices regarding the imple- tained. mentation of pretrial detention The law, therefore, neither requires reform. Such a forum can serve as nor allows the imposition of pretrial a platform for promoting pretrial detention based solely on the crime detention reform throughout the with which a defendant is charged. country, thereby dispersing the risk This was not always the case in should the reforms fail in a particular Ukraine. Prior to major amendments state. Moreover, such a forum can play to the CCP in 2001, pretrial detention an important role in aligning federal could be applied on the basis of the reform proposals with state-level gravity of the crime with which a reforms. defendant was charged. The 2001 amendments also “judicialized” (i.e. transferred from prosecutors to Ukraine: Improving judges) all decision-making powers Pretrial Detention Practice regarding restrictions on individual through Judicial Training liberty, including decisions to impose According to Ukraine’s Code of pretrial detention.6 Criminal Procedure (CCP), pretrial The 2001 amendments to the CCP detention may only be imposed if rea- largely aligned Ukrainian pretrial sonable grounds exist that a defendant detention law with the requirements may attempt to abscond; obstruct the of the European Convention on investigation; or pursue criminal activ- Human Rights.7 At the time of the ities. To determine the type of restric- amendments, Ukraine had one of the tion to place on an awaiting trial highest imprisonment and pretrial

Justice Initiative 159 Pretrial Detention

detention rates in Europe.8 Conditions city, Kharkiv. A representative sample in Ukraine’s pretrial detention facili- of cases in which pretrial detention ties were severely criticized by the was imposed during 2002 was ana- European Committee for the lyzed. The survey focused on the deci- Prevention of Torture.9 Moreover, sion-making process judges used to many pretrial prisons in Ukraine were come to a pretrial release or detention chronically overcrowded and were fer- decision. tile breeding grounds for the trans- According to the survey results, mission of communicable diseases. most judges applied pretrial detention on the basis of a few variables, notably the gravity of the offense with which a The amended CCP presented an defendant is charged, a defendant’s opportunity to reform an ailing and lack of a registered permanent residence (in large part a leftover from inhumane pretrial detention system. Soviet times when every citizen had to be formally registered at an address), and a defendant’s prior criminal con- The Intervention duct and employment status. Some 69 percent of cases surveyed revealed The amended CCP presented an that detention decisions were based on opportunity to reform an ailing and the gravity of the offense with which inhumane pretrial detention system. defendants were charged. Judges gen- This legislative opening and Ukraine’s strategic importance presented a erally did not take into account the full compelling case for Justice Initiative array of factors mandated by the code engagement.10 In early 2002, in when deciding which defendants to cooperation with Ukraine’s Soros detain. Crucially, most judges failed to foundation, the International properly evaluate the risk individual Renaissance Foundation (IRF), the defendants posed of absconding, Justice Initiative implemented a three- obstructing the criminal investigation, year project aimed at maximizing or offending. the revised code’s potential to limit the The survey results also provided use of pretrial detention.11 The project some evidence that judges’ pretrial sought to achieve this by enhancing detention rulings were discriminating the quality of judicial decision-making against the poor. Over four-fifths (81 during the pretrial phase of criminal percent) of the cases surveyed involved proceedings and thereby reduce the unemployed persons. This occurred incidence of cases where pretrial even though the unemployed consti- detention is used. tute “only” two-thirds of convicted During the first phase of the proj- defendants. It was also found that a ect, a survey of judicial practices in the mere 7 percent of defendants covered application of pretrial detention was by the survey were represented by a conducted in Ukraine’s second largest lawyer during their pretrial hearing.

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Figure 2: Pretrial Detainees per 100,000 of the General Population, 2001-05

111.3 111.2 120 97.8 100 86.1 77.8 80

Detainees per 100,000 20

0 2001 2002 2003 2004 2005

Source: Center for Judicial Studies; Supreme Court of Ukraine.

The survey consequently revealed Supreme Court as both a coauthor of that many judges tended to ignore the guidelines and a trainer at project- important aspects of the CCP when sponsored seminars, which signifi- making a pretrial release or detention cantly enhanced the status and appeal ruling. This finding led to the second of the project’s written materials and stage of the project: namely, the pro- trainings. duction of a series of publications, During 2004-05, a series of proj- including a workbook for project- ect-sponsored judicial trainings were sponsored trainings on pretrial deten- held in Kharkiv and Kyiv. The train- tion, and guidelines for judges on the ings were conducted by the Center for correct application of Ukraine’s pretri- Judicial Studies, an NGO with a good al detention law. All materials provid- working relationship with the ed examples of good and bad practices Ministry of Justice and the Supreme in pretrial detention based on actual Court. The center also had several cases found by the project’s years’ experience in organizing train- researchers in the aforementioned ing seminars for Ukrainian judges on survey. The materials also stressed aspects of the European Convention European regional standards govern- on Human Rights. ing the application of pretrial deten- The final phase of the project tion, in particular the case law of the involved the development of pilot European Court of Human Rights. legal aid schemes for arrested persons The project enlisted a justice of the in Kyiv and another regional center,

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Chernihiv. Project-sponsored lawyers 2004 and 2005. This decline occurred were placed on duty at police notwithstanding the fact that over the stations to provide assistance to same period the level of recorded arrestees who were at risk of being crime in Kyiv rose (contrary to the placed in pretrial detention. national trend) by 14 percent and the number of defendants by two percent. Project Impact In Kharkiv (a site for the project- During the years of the project’s oper- sponsored trainings) the number of ation, the overall number of pretrial appeals against pretrial detention rul- detainees in Ukraine declined, from ings of the lower courts declined by 12 111 per 100,000 of the general popula- percent in a five-month period after tion in 2002 to just under 78 per the project trainings, compared to a 100,000 in 2005 (Figure 2). Over the similar five-month period prior to the trainings. This decline in the number of appeals is likely to be at least partly Lawyers were placed on duty at police the result of judges being more faith- ful to the CCP as it applies to pretrial stations to provide assistance to detention. arrestees who were at risk of being There are also indications that the placed in pretrial detention. project’s judicial skills-building activities were effective in changing judicial attitudes. In June 2005, the Center for Judicial Studies surveyed judges of the same period the number of pretrial Kyiv regional and local courts who had detainees, calculated as a proportion of participated in the project-sponsored the total prison population, declined trainings. The survey revealed that 89 12 from 23 percent to 18 percent. Much percent of the surveyed judges of this decline cannot be attributed to believed the number of defendants the project, as only a small proportion who are detained awaiting trial is of the country’s judges had participat- excessively high. Moreover, almost ed in the project sponsored trainings four-fifth of the respondents (78 per- by the end of 2005. Moreover, record- cent) felt that efforts should be made ed crime decreased over much of this to reduce the number of pretrial period—a factor which may have con- detainees in Ukraine. tributed to a reduction in the application of pretrial detention.13 Facilitators of Project Successes It is interesting, however, that in Kyiv, where a significant number of A repeat of the survey of judicial prac- judges attended the project trainings tices in the application of pretrial (which commenced in March 2005), detention, which the project under- the number of pretrial detainees took in 2003, would be required to declined by over four percent between accurately measure the project’s impact on the quality of judicial

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decision-making during the pretrial turn, was a product of Ukraine’s phase of criminal proceedings. But it obligations to the CoE.14 A CoE treaty can be ascertained from the above, monitoring body, the European albeit imperfect, data that the project Committee for the Prevention of made a positive impact on judicial Torture and Inhuman or Degrading attitudes and practices. Given that Treatment or Punishment (CPT), visit- these successes were achieved in a ed Ukrainian pretrial detention facili- country which until 2001 had one of ties in 1998, 1999, and 2000. The Europe’s most draconian pretrial CPT made it known that the poor con- detention regimes, what enabled the ditions under which pretrial detainees project to achieve these accomplish- were incarcerated could realistically ments over such a short period of be improved only if there was a time? It is possible to identify at least decrease in the number of pretrial two cogent explanations. detainees or a reduction in the average First, the project was not promoted length in their detention. purely as a pretrial detention reform undertaking. Rather, it was presented Sustaining Project Impact as a vital component in the govern- As a consequence of the project’s activ- ment’s effort to humanize criminal ities and at the urging of the Justice justice policy and practice in compli- Initiative’s partner, the IRF, several ance with European human rights standards. In this respect the project international donor organizations capitalized on a widely shared belief have started supporting pretrial deten- 15 among Ukraine’s criminal justice pol- tion-related projects in Ukraine. This icy makers: namely, that it was neces- is an encouraging development as no sary to move away from a repressive major donor was working in this field Soviet-style system, and that this when the project began in late 2002. was possible only by incorporating Moreover, the IRF itself has contin- European standards into a more ued its engagement with pretrial humane criminal justice system. detention issues in Ukraine. In 2006 Second, a key policy goal for the it provided a grant to the Center for Ukraine government was to nurture Judicial Studies to train judges on the country’s membership in the alternatives to pretrial detention. The Council of Europe (CoE). Ukraine was center will also provide joint practical permitted to join the CoE in 1995 on training sessions for judges, prosecu- the condition that, among other tors and lawyers on the application changes, it reformed its criminal of alternatives to detention and to justice system in accordance with improve their skills regarding good European norms. The amendments pretrial detention practice. A different to the CCP in 2001 were motivated IRF grant permits the continued pro- by a need to bring the country’s crimi- vision of free legal aid to arrestees at nal procedure in line with Ukraine’s risk of being placed in pretrial deten- Constitution. The constitution, in tion at two Kyiv police districts.

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Figure 3: Pretrial Detainees per 100,000 of the General Population, 1999-2006

180 162 147 151 155 158 160 142 140 120 96 100 77 80 60 40 20 0 19992000 2001 2002 2003 2004 2005 2006

Source: Latvian Prison Administration

Latvia: Reducing Pretrial Detention The Latvian Criminal Procedure through Bail Supervision Code provides for eight different secu- With the collapse of the Soviet Union, rity measures in respect of persons Latvia regained its independence in awaiting trial. Only judges have the 1991. Almost immediately, the small authority to impose the two most Baltic state of 2.3 million people began restrictive security measures—pretrial reforming its criminal justice system. detention and house arrest. The onus By the turn of the century, Latvian law is on the police and prosecution to permitted the imposition of pretrial apply—formally, and in writing—to a security measures only if there were judge for the detention of a suspect. sufficient grounds to believe that the While detention may be used as a persons concerned will abscond, inter- security measure only where the fere with the criminal investigation, alleged offense may, upon conviction commit new crimes, or to ensure the of the perpetrator, result in a custodial enforceability of a court’s judgement. sentence, there are very few offenses Judicial officers have to consider vari- where imprisonment is not a potential ous, statutorily enumerated, criteria in sentence. deciding whether to impose a security measure. These include the serious- Reformist Pressure ness of the offense and the character Between 1991 and 2002, the number of the accused, including his familial of sentenced prisoners in Latvia and personal circumstances. decreased by 21 percent, while the

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number of pretrial detainees increased pretrial detention establishments.20 by 53 percent. The number of pretrial The CPT recommended that Latvia’s detainees as a proportion of all prison- pretrial detention law and practice be ers increased from 28 percent in reconsidered. Among the internation- 1991 to 43 percent in 2002. al standards designed to limit the use Disconcertingly, in 2002 almost two- of pretrial detention, the CPT specifi- thirds (63 percent) of incarcerated cally suggested implementation of a juveniles were pretrial detainees. recommendation of the Committee Accused juveniles faced a significantly of Ministers of the Council of Europe greater risk of being detained awaiting which provides that: “When examin- trial than their adult counterparts. ing whether custody pending trial In 2003, Latvia had the highest rate can be avoided, the judicial authority shall consider all available alternative of pretrial detainees of European 21 prison systems for which figures were measures.” available, incarcerating 158 detainees per 100,000 of the general population Juveniles were more likely to be detained compared to a European mean of 66 (Figure 3).16 awaiting trial than their adult counterparts. A 2000 United Nations country assessment of Latvia estimated that “only half of the population behind In mid 2002, the Latvian parlia- bars is incarcerated under humane ment amended the Criminal and secure living conditions.”17 Under Procedure Code to expedite trials and such conditions “pursuit of their own thereby reduce the average length of human development for many or most time persons are detained awaiting individuals is impossible while in trial. Parliament also established a detention, which bears a negative working group to draft a new law on influence on rehabilitation, and on criminal procedure for the country. the rest of an individual’s life.”18 These legislative developments, A report released in early 2002 by Latvia’s high rate of pretrial detention, the Latvian Center for Human Rights the above-mentioned CPT report, and and Ethnic Studies, an NGO, stated: the reformist pressures placed on “In 2001 the primary human rights Latvian policy makers by their coun- problem in Latvia remained the same try’s eagerness to join the European as in previous years: a huge backlog in Union (EU), provided an opening to the courts resulting in long pre-trial promote pretrial detention reform. detention periods.”19 In a 2001 report on Latvia, the The Intervention European Committee for the In September 2002, the Justice Prevention of Torture (CPT) com- Initiative and the Center for Public mented on the “intolerable” condi- Policy-Providus, a Riga-based NGO, tions which it found in the country’s initiated a three-year project with the

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goal of reducing the number of juve- The project also sought to respond niles and young adults held in pretrial to the supply side of the excessive use detention. of pretrial detention—that is, the In order to make sense of the high process through which persons were pretrial detention rate, and to recom- placed in detention and remained mend ways of reducing the number there. The project established two pilot of detainees, the project undertook bail supervision centers to demon- a study to evaluate Latvian pretrial strate how a system of bail supervision detention practices. During 2002-03, can function in Latvia. In December the project analyzed almost 300 ran- 2003, the project set up the first such domly selected criminal case files center in the coastal city of Liepaja. involving accused persons assigned From the outset, the project’s abili- pretrial detention. A second survey, ty to develop an effective alternative to pretrial detention was impeded The project established two pilot by legislation which did not allow bail supervision as a security measure for bail supervision centers to demonstrate persons awaiting trial. So in lieu of how a system of bail supervision bail supervision, the project decided to operate through a pretrial security can function in Latvia. measure that was allowed under the law: police supervision. Police supervision is a measure designed to restrict an accused person’s freedom of move- to elicit the views judges, prosecutors and police officers had on pretrial ment. Specifically, it means that the detention issues was carried out person is not allowed to leave their in 2003. region of permanent or temporary residence, or to frequent specified places The case study and survey results or establishments, and the accused provided an empirical basis for identi- must report to the police at regular fying problems in Latvia’s pretrial detention regime. It was found that intervals. Conditions of police supervi- Latvia’s pretrial detention legislation sion are limited by law and it is impos- was often incorrectly interpreted and sible for the courts to add bail supervi- applied, and that aspects of the legisla- sion as a condition under the rubric of 22 tion were vague and did not always police supervision. The project comply with international standards. responded to this legislative lacuna by In response, the project commis- entering into a series of cooperation sioned a renowned expert to advise agreements with the police, prosecu- Latvian policymakers on amending tion, and courts in Liepaja to establish the Criminal Procedure Code to bring their formal support for the Liepaja the country’s legislation, as it applies center and its activities. to pretrial detention, in line with Accused persons released on police European standards. supervision have to comply with cer-

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tain rules to remain at liberty as they Service office in Liepaja in late 2005 await trial. Informally, the Liepaja cen- that the center could focus exclusively ter developed its own rules for its on bail supervision activities. clients. For example, anyone under A second pilot center was opened supervision had to commit to partici- in the city of Rezekne in May 2005. At pate in regular center activities and the time of the opening, Rezekne had not be intoxicated while at the center. the highest crime rate in the country, The weakness of this informal and 54 percent of arrested juveniles approach is that the police and the were kept in detention awaiting trial. courts are powerless to penalize accused persons who do not comply Lack of Sustainability with the center’s rules. The police can At the end of 2006 the Liepaja center only react in cases where an accused closed its doors, and the Rezekne cen- breaks a court-imposed condition of ter did so in late 2007. The inability of release on police supervision. In prac- the project to ensure their long-term tical terms, center staff could exert financial sustainability is the main some influence to get accused persons reason for discontinuing the work of to comply with their rules, however. the two pilot centers. From its incep- Judges would frequently ask the center tion, the Liepaja center was funded to submit pre-sentence reports on exclusively by the project, while the behalf its clients who were convicted Rezekne center received some modest by the courts. As positive reports could support from the Rezekne municipali- influence the courts to impose more ty. There are a number of reasons lenient sentences, the center’s clients why the pilot centers were neither had an incentive to cooperate with sustained nor led to the development staff. of additional bail supervision centers During the first year of its opera- in other parts of Latvia. tion the Liepaja center had difficulties At its inception, the project benefit- establishing itself as a supervision ed from the high-level contacts that service. Initially the center’s staff com- Providus had cultivated in the Latvian pleted numerous pre-sentence reports criminal justice system. Providus and supervised convicted offenders enjoyed considerable credibility within post-trial, in effect operating as a pro- government institutions and had been bation service. For strategic reasons it invited to participate in governmental was decided by the project that the working groups, including a working center would perform such tasks at the group to establish a national probation request of the police, prosecution, and service. When the Liepaja center was courts to establish a good relationship created, the project gambled on the with local criminal justice actors and support of the Ministry of Justice— promote a professional and trustwor- especially that of the minister of jus- thy image for the center. It was only tice—to amend the Criminal with the opening of a State Probation Procedure Code and formally add bail

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supervision as an alternative to pretri- court facilities and an increase in the al detention. This, in turn, would have number of judges in Latvia’s capital made the country’s new Probation city, Riga (where a third of all Latvians Service responsible for the provision live) in 2003. At around the same time of bail supervision services. At the amendments to the Criminal time, the Probation Service expressed Procedure Code shortened the pretrial interest in providing such services investigation phase of the criminal through its own staff and offices in process under certain circumstances, some locations, while funding and and imposed statutory time limits for contracting civil society organizations the maximum duration of detention. to provide bail supervision in others Moreover, an increased focus on judi- locales. In early 2004, the country’s cial training in the years immediately prior to Latvia’s accession to the EU increased judges’ awareness of The project succeeded in placing European pretrial detention standards. the concept of bail supervision on Future Opportunities the agenda of Latvia’s policy makers. It is sobering to conclude that the project’s first pilot bail supervision center in Liepaja closed its doors after three years, and that the pilot center in governing coalition collapsed and the Rezekne did so after just over two project was unable to establish as good years of operations. Notwithstanding a relationship with the new minister this setback, the project succeeded of justice. It was consequently a set- remarkably well in placing the concept back to the project when Latvia’s new of bail supervision on the agenda of Criminal Procedure Code, which came into force in October 2005, did Latvia’s policy makers—although too not make provision for bail supervi- late to sustain the operations of the sion as an alternative to pretrial deten- two pilot centers. tion due to a lack of support from the In late 2006, the State Probation Ministry of Justice. Service, in a report to the Ministry of After Latvia joined the European Justice, commented positively about Union in May 2004, the threat that a the impact of the project’s pilot cen- lack of progress in reforming its pre- ters. The probation service noted that trial detention regime could delay its bail supervision services provide effec- accession to the EU was no longer tive and individualized attention to credible. Moreover, the number of pre- persons in conflict with the law, there- trial detainees declined dramatically by changing the behavior of juvenile between 2003 and 2006, from 158 to accused and encouraging them to lead 77 per 100,000 of the general popula- a law-abiding life.23 tion (see Figure 3). This decline is In a Ministry of Justice strategy attributable to the opening of new document for the years 2007-2009,

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the ministry committed to drafting an uniformity embedded in processes of implementation plan for a national globalization, and the information bail supervision service by 2009. necessary to comprehend local prob- Providus, the Ministry of Justice, and lems from a distance is not readily the State Probation Service are collab- available. In addition, the inventory of orating on developing a project pro- ready solutions to many of the prob- posal to solicit foreign financial assis- lems in pretrial detention is small, tance to support the implementation often highly specific, and usually of bail supervision throughout expensive. The history of specific legal Latvia.24 transplants, too, whether in the form Providus also serves on a Ministry of statutory borrowing or the adoption of Justice working group tasked with of international legal covenants, is full considering proposed amendments to of instances of poor portability. It is the Criminal Procedure Code. It is not clear that remedies devised for likely that Providus’s proposal—that problems in one country are easily bail supervision as an alternative to transferable to others. pretrial detention be included in a To mitigate these challenges the future amendment to the code—will Justice Initiative has adopted the prin- be supported by both the Ministry of ciples of diversity, collaboration, and Justice and the State Probation replicability in its programming. Service. It is unclear, however, when Promoting better decisions about such an amendment would come into detention across the globe requires an force. Providing bail supervision eclectic approach, with agile responses nationally will require considerable to different environments and chang- financial resources and the expansion ing expectations. Creating the environ- of the probation service as the likely ment to bring about lasting change in agency responsible for the effective the field of pretrial detention requires implementation of bail supervision new kinds of collaboration between services. At the time of writing it governments and NGOs, and a com- appears unlikely that bail supervision mitment to learning by all parties. services will be introduced in Latvia Cooperation with donors makes it pos- 25 before 2009 or 2010. sible to build upon current efforts to improve justice, and benefit from their Conclusion local knowledge and experience. The The Justice Initiative faces several Justice Initiative strives to generate important challenges when working learning which will be applied by oth- on rights-based pretrial detention ers in analogous situations and there- reform on a global scale. First, crimi- by serve as a catalyst for a process of nal justice remains a local and varied change in the arena of rights-based phenomenon, despite the pressure of pretrial detention reform.

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Notes

The authors are current and former personnel of the Open Society Justice Initiative’s National Criminal Justice Reform program. 1. World Prison Brief Online, (London: International Centre for Prison Studies, 2007). 2 .The Fox administration’s proposed reform of the public security and criminal justice system was ambitious. It involved revising several constitutional provisions, promulgating six new laws and amending a further eight. 3. Guillermo Zepeda Lecuona, Crimen sin castigo: Procuracion de Justicia Penal y ministerial publico en Mexico, (Mexico City, Fondo de Cultura Económica y Centro de Investigación para el Desarrollo, 2004), 220. 4. Bail evaluation and supervision is more commonly known as “pre-trial services” (PTS), especially in the United States where PTS have been in existence the longest. In the United States, PTS generally provide two major functions: evaluation and supervision. At the evaluation stage, background information on a defendant, including criminal record information, is obtained and verified by an impartial party. The risks of the defendant absconding, interfering with the administration of justice, or committing a serious crime while awaiting trial are evaluated. Based upon the evaluation, a recommendation is made to the presiding judge as to whether the defendant should be released pretrial and, if so, under what conditions. This mechanism provides judges with the necessary information to make informed release decisions. The supervision function provides a number of oversight options for defendants whom a judge would otherwise not release pretrial. For example, PTS may provide drug testing to defendants whom the judge has ordered into drug treatment, and visits or telephone calls for defendants under house arrest. 5. The proposal for federal-level reform was submitted to congress in late 2006 by a network called Red Nacional a Favor de Juicios Orales y Debido Proceso Legal (“National Network for Oral Trials and Due Process of Law”). 6. Under the old pre-2001 system, a procurator made the decision to detain someone without contemporaneous judicial or other independent scrutiny. 7. The Council of Europe (of which Ukraine became a member in 1995), recommends that in deciding whether or not to detain, a court should consider: (i) the seriousness of the alleged offense, (ii) the strength of the evidence that the accused committed the offense, (iii) the penalty to be incurred upon conviction, (iv) the character, and personal and community ties of the accused, and (v) the conduct of the accused. See: Council of Europe Recommendation No. R (80) 11 of the Committee of Ministers to Member States Concerning Custody Pending Trial (27 June 1980), https://wcm.coe.int/ViewDoc.jsp?id=679045&Lang=en>. 8. Marcelo F. Aebi, Council of Europe Annual Penal Statistics: Survey 2002, (Strasbourg: Council of Europe, 2003). 9. Report to the Ukrainian Government on the Visit to Ukraine Carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 24 November to 6 December 2002, CPT/Inf (2004), (Strasburg: Council of Europe, 2004) 35. 10. Ukraine, which gained its political independence from Russia in 1991, is the second largest and sixth most populous (population 46.7 million in 2006) country in Europe. 11. The IRF, a member of the Soros Foundations network, is an independent, charitable organization and one of the largest private charities in Ukraine. Since 1990, the IRF has both funded and helped implement numerous law reform and rule of law projects in Ukraine. 12. Tsentr Suddivskikh Studiy, Otsinka Efektyvnosti Vykonannia Proektu “Znyzhennia Kilkosti Dosudovykh Zatryman V Ukraiini: Monitoryng Ta Udoskonalennia Suddivskykh Navychok”. [Center for Judicial Studies, Evaluation of Effectiveness of the Implementation of the Project “Reducing Pre-Trial Detention in Ukraine: Monitoring and Judicial Skills-Building”] (2006).

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13. Between 2002 and 2003, the rate of recorded crime increased from 939 to 1,168 cases per 100,000 of the population, and thereafter declined to 1,100 (2004) and 1,035 (2005) recorded cases per 100,000 of the population. 14. A draft of the Ukraine Constitution was vetted by a body affiliated with the Council of Europe, the Venice Commission for Democracy through Law. See Opinion on the Draft Constitution of Ukraine (Text approved by the Constitutional Commission on 11 March 1996 (CDL (96) 15), available at, ). 15. These donor organizations include the Swiss Agency for Development and Cooperation, and the American Bar Association’s Central and Eastern European Law Initiative (ABA-CEELI). 16. Figures for the Russian Federation were not available. See, Marcelo F. Aebi, Council of Europe Annual Penal Statistics, Survey 2003, SPACE I, (Strasbourg: Council of Europe, 2004), 23. 17. Putting People First. Challenges and Opportunities for Cooperation between Latvia and the United Nations, A United Nations Common Country Assessment, (New York: 2000), 24. 18. Ibid., 26. 19. Human Rights in Latvia in 2001, (Riga: Latvian Center for Human Rights and Ethnic Studies, 2002), 7. 20. Report to the Latvian Government on the visit to Latvia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 24 January to 3 February 1999, CPT/Inf (2001) 27, (Strasbourg: Council of Europe, 2001), 36 and 46. 21. Recommendation No. R (80) 11 of the Committee of Ministers of the Council of Europe. See, Report to the Latvian Government on the visit to Latvia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 24 January to 3 February 1999, CPT/Inf (2001) 27, (Strasbourg: Council of Europe, 2001), 42. 22. Under the rubric of police supervision, the law permits the imposition of four conditions only: compulsory school attendance, house arrest, prohibition to go to certain places, and regular reporting at a police station. See Article 75, Latvian Criminal Procedure Code of 1961, as amended. 23. Personal communication, Inese Avota, Project coordinator: Bail supervision and alternatives to custody, Center for Public Policy-Providus, January 27, 2007. 24. Funding is being sought through the Norwegian Financial Mechanism which is making 1.17 billion euros available to ten new European Economic Area (EEA) states—including Latvia—in a wide range of priority sectors. 25. Personal communication, Inese Avota, Project coordinator: Bail supervision and alternatives to custody, Center for Public Policy-Providus, January 27, 2007.

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Mixing Politics, Data, and Detention: Reflections on Reform Efforts

Robert O. Varenik reviews common of attempts to address pretrial deten- themes among pretrial detention tion policies. The reforms described in reform efforts and the lessons that can this volume include two significant be extracted from them. legislative efforts (Chile and Russia); creation of a new administrative entity Within the already fraught territory of (South Africa); an administrative criminal justice policy, issues of deten- interagency reengineering (United tion and punishment are particularly States); and third-party efforts at charged. The case of pretrial detention inspection of or legal representation in is further complicated because the detention venues (India and Malawi, affected population1 is not only often and Nigeria, respectively). Have these initiatives mastered the difficult It is hard even to gauge the politics and the elusive metrics of this impact of any reform effort or the field? Do they signal any trustworthy directions for ensuring that the cause of a particular outcome. problems (and solutions) are properly appraised and appreciated? With these initiatives as a backdrop, this article poor but transient, complex, and hard suggests that reformers should focus to document, or even describe. With on achieving clarity about the consequently few advocates, their challenges they are tackling and the numbers are almost never measured results they obtain, and on fashioning precisely, although in many countries empirical arguments that appeal to a the pretrial population is significantly wider range of political values. The higher than the prison population. It successes and setbacks found in these is hard even to gauge the impact of seven initiatives, diverse in contexts any reform effort or the cause of a and content, point to this conclusion. particular outcome. It comes as no The accounts can be regrouped surprise, then, that many societies according to a few principal narratives have failed to take to heart the that highlight the difficulties in requirement of international law that managing both the politics and the detention of (presumptively innocent) metrics of pretrial detention reform. accused persons should be the In a first group, including Chile, exception rather than the rule. Russia, and South Africa, reform Despite the difficulties of the politics faltered, leading to a counter- endeavor, there is a growing number reform that rolled back the laws, or in

172 Open Society Reflection

the case of South Africa, meant a reforms, although for different rea- gradual administrative abandonment sons, including a desire at the time for of the pilot project and the practices greater proximity to the West and a inculcated by the project. In India and way to address pressure from the Malawi, political support for two Council of Europe and human rights inspired initiatives appears to be sig- activists regarding Russia’s record in nificant and sustained, but reformers this area. Law enforcement officials, themselves express questions about especially prosecutors, were largely how to interpret the results and their opposed to the reforms for institution- relation to the intervention. In two al as well as ideological reasons. cases (Nigeria and the United States), Keenly aware that the opportunities reformers were able to generate value created by their unlikely coalition were for official stakeholders. Believing that highly evanescent, a small group of they had isolated the problem and well-placed reform leaders adopted a could demonstrate the appropriate- very opportunistic approach, remov- ness of the approach and the desired ing prosecutors and other opponents impact, they were able to secure some of the reform from the legislative institutional changes that seem likely working group in order to ensure to persist. rapid passage of a revised code. The political and technical under- Yet the experiences of Russia and pinnings of success are often pro- also Chile suggest that identifying and foundly intertwined. One succinct even temporarily neutralizing oppo- recipe for successful reform calls for nents of reform may not be enough. providing doers and decision makers Adversaries resurfaced, reinforced, in with “information, options, and incen- short order. In Russia, subsequent tives.”2 That is, public officials need elections thinned the ranks of new knowledge that helps them make legislative reformers, while a suddenly good choices and a set of political rea- indifferent presidency presided over sons to take action. Common experi- a reconstituted working group that ence in the field seems to suggest that undermined some important ele- the politics of reform—the key incen- ments of reform barely a year after tives—are paramount, making it a their passage. Key reformers had been good place to start. intent on a victory while there was a As Olga Schwartz relates, a liberal- window of opportunity and opted to ized criminal procedure code had long exclude opponents and shorten the been stalled in the Russian Duma time for debate rather than win them until an unlikely source, incoming over or seek a lasting compromise. President Vladimir Putin, pushed it Because the other side hadn’t been through as an early salvo in (as hind- converted to the cause or presented sight now suggests) a long campaign with a reason to forgo opposition, it to limit the influence of the judiciary did not; biding their time, opponents and the legal establishment. Other had the next, if not the last, word on political elites also supported these reform.3 Ironically, it appears that the

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counterreformers were aided by some needed to avoid wholesale dismantling of the “beneficiaries” of the new of the original project. As Verónica legislation. Judges were never really Venegas and Luis Vial point out, the prepared for the new authority granted use of consensus as a political modali- to them or the new standards for ty for decision making may have applying it, and after a brief honey- masked simmering differences and moon they reverted to form, their lulled some players off their guard decisions mimicking those of the even in Chile, where deep schisms prosecution service which had previ- had historically divided the political ously determined pretrial detention camps. The ideological right remained or release. ready to pounce on an opportunity, and did. Veterans of the Russian and Chilean campaigns might well advise The acid test of reform should not that, as with electoral politics, the time be what can be attained, but to begin planning for the next skir- what can be sustained. mish is right after the initial victory. Beyond the legislative level, the del- icate courtship of parties in the reform process is equally critical. Working Given the inevitability of political closely with several juvenile justice shifts, the acid test of reform should agencies, the Juvenile Detention not be what can be attained, but what Alternatives Initiative (JDAI) identi- can be sustained. Adversity, whether fied numerous sources of delay and in the form of a public relations disas- inefficiency that contributed to an ter stemming from a case gone bad or acknowledged growing problem of sharp tilts in the political balance, juvenile facility overcrowding in the needs to be anticipated. When oppo- United States. Lessons from past nents of reform gained increased practice—for instance, never assume influence over the legislative process that related agencies know what the in Chile, supporters were caught others are doing—prompted them to unprepared to respond to what broker information in a way that they viewed as demagoguery about made them, and the reform process, increased impunity for criminals. valuable to officials, who then benefit- Although fierce in their opposition to ed from a host of low-cost solutions rollbacks, even the most ardent that relied on minor administrative reformers lacked data to refute the changes rather than legislation. charges because none of the system The Commonwealth Human Rights entities measured the impact of the Initiative (CHRI) in India found reforms on detention, absconding, or that agency representatives who had recidivism. Some of the academics traditionally been dismissive of input who had championed the initial from NGOs reacted positively to reforms became a somewhat surpris- CHRI’s often critical findings from its ing constituency for counter-reform, lay visits to detention sites. Dialogue, arguing that concessions would be leavened by new information, can be

174 Open Society Reflection

surprisingly fruitful. ing and sustaining political inroads. In Malawi, filling the needs of the The implementation of pretrial release police force created an unlikely and detention policies is a high-vol- alliance and defused a potentially ume undertaking well suited to data adversarial relationship. Reformers capture and analysis and offers oppor- had been unable to win police cooper- tunities to provide many system actors ation until their nongovernmental and policymakers with results that Paralegal Advisory Service (PAS) proj- will make reform a better political deal ect expanded to address juvenile for them. As D. Alan Henry puts it, detention, which the police had once “armed with information” his acknowledged as a problem area. U.S. JDAI team was ready to begin Offering to assist the police and politicking for change. The Justice parents of juvenile arrestees, the PAS then helped develop a screening mechanism for diverting young Isolate and observe different offenders, where appropriate, out of components in order to pinpoint the criminal justice process. In exchange, paralegals gained access to the problem area(s) among many monitor police– detainee interviews. moving and interconnected parts. The PAS then went one better, recruit- ing officers to train paralegals in investigative interviewing techniques and Initiative’s chief ally in an effort to custody procedures, which enhanced implement liberalized pretrial release the paralegals’ monitoring skills while rules in Chihuahua, Mexico, turned reinforcing the standards among out to be the state attorney general, police. The police also helped design who was explicit that pretrial release the paralegals’ code of conduct for was not her office’s natural calling but police station monitoring. who recognized that project-generated The PAS was forced into some dif- data provided strong arguments in ficult choices to forestall another polit- favor of related reforms that law ical obstacle. Rather than risk further enforcement should support. alienating the Malawi Law Society, The subtle complexities of criminal which it correctly perceived as resent- justice systems require that reform ful of incursions into the Society’s tra- should flow from careful diagnosis. ditional territory, the PAS demurred The hunt for the source of the prob- on several requests from the judiciary lem should approximate a mechanic’s to send paralegals into the lower approach under the hood of a car: courts, championing the position try to isolate and observe different that representation before a judge is components in order to pinpoint the strictly the Bar’s province. problem area(s) among many moving Although political imperatives can and interconnected parts. Reforms frustrate the pursuit of evidence-based that spring fully formed, like Minerva policy, empiricism has a role in mak- from Jupiter’s brain, without gestation

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or significant research, may be both remanded prisoners dropped an addi- relevant and useful, but when the tional 18 percent. Going forward, rationale for choosing a specific inter- reformers will have to address those vention is slender, the results may be problematic detentions stemming correspondingly modest, and the from decisions made earlier in the mechanism of impact hard to divine. process. Even due diligence does not inocu- CHRI’s program of lay visits to late against surprises. The PAS’s pre- prisons in several Indian states clearly project research in prisons revealed constitutes a useful intervention on widespread, lengthy, and unlawful several grounds: it mobilizes civil soci- detention of inmates who lacked the ety, creates a crucial precedent for legal knowledge and/or representation external oversight, and undoubtedly helps individuals who otherwise lack anyone to champion their rights. Yet Drawing up a plan without a clear sense for subsequent reformers trying to of the desired outcomes is an admission tackle pretrial detention across India, the true measure of its value may not that we don't know exactly where to aim. be the four-year reduction in the number of pretrial detainees (although this appears to be significant) but rather to challenge their status. However, the degree to which it enabled CHRI a lack of reliable data made it hard to prompt diverse stakeholders to to pinpoint where in the criminal probe a procedural and institutional process these phenomena had their thicket. Indeed, the project out- roots. At its inception in 2000, the stripped its aim of “opening up the project targeted prison sites. Only obscure character of prison manage- after the project had been operating ment through permitted community for two years was it discovered that the interventions” by discovering, as did reform was aimed too far down- its Malawian counterpart, the inter- stream: much of the pretrial detention connected and mutually determined problem stemmed from decisions nature of the criminal justice system. made earlier in the prisoner intake R.K. Saxena is skeptical of one-dimen- process. By 2005 reformers were faced sional measures, aware that the “price with results both mixed and hard to of a reduction” in the pretrial popula- interpret: a small reduction (just tion may be an increase in the number under four percent) in the pretrial of convicts and the speed with which detainee population over six years, and they are condemned. Looking back on a contemporaneous, massive 74 per- this complexity, Saxena poses an cent increase in the overall prison pop- invaluable question when he asks, ulation.4 Happily, however, with an “[what] would be a dependable indica- expanded cadre of paralegals focusing tor of reform in the situation of pretri- on gaining release of prisoners who al detention?” had “overstayed” their remand period, By way of response, we might look scarcely 15 months later the number of to Malcolm Sparrow, a widely respect-

176 Open Society Reflection

ed government innovations expert percent. This reduction took place (and a former detective chief inspector despite a 75 percent increase, cited in Britain) for a seemingly obvious but by Benjamin Naimark-Rowse and col- essential reminder: define your indica- leagues7, in the number of people tors before deciding on your interven- detained awaiting trial, because the tion.5 Drawing up a plan of attack overall size of the prison population without a clear sense of the desired more than doubled in the same peri- outcomes is an admission that we od.8 Without contextualizing informa- don't know enough about the target to tion, this indicator helps obscure the know exactly where to aim. fact that Mexico has relied for decades The uncertainty of our authors is on an inflexible legislative scheme, not theirs alone, and their skepticism repeatedly toughened in the face of about the results is healthy for the security fears, that renders perhaps field. Unfortunately, the world of pre- two-thirds of all charged offenders trial detention is still cast in some ineligible for pretrial release. darkness regarding the nature of suc- So what might a measure of success and how to measure it. The prob- cess in pretrial detention reform (or lem has diverse manifestations: exces- for that matter, a model of the prob- sive (too frequent and/or too lengthy) lem) look like? What indicators would pretrial problems, discriminatory we look to, and which way would they application, flaws in the process used be pointing (assuming that we are not for detention and release decisions, limited to data that is typically record- and inadequate physical conditions ed by governments and thus readily are the most common. But how do we available)? To begin with, the numbers define these problems quantitatively? of people in detention (both before How much is too much of a lawful, if and after conviction) might each be ostensibly rare, measure? What do you compared to population size (and compare it to? Although some policy expressed in per capita terms) rather experts have begun to articulate better than comparing the two detainee standards of measurement, for most groups to one another. In order to human rights groups, researchers detect the possible effect of law and lawmakers, there is little choice enforcement activity, which might but to utilize a core indicator—the swing detainee populations up or percentage of the overall “in custody” down independently of how release or population awaiting trial6—that can detention decisions are then made, be profoundly misleading for precisely those numbers might be also be com- the reasons our reformers suspected: pared to the number of arrests. Thus it provides only a partial glimpse of a the rate at which suspects are held in multifaceted picture. detention might be expressed, for In Mexico, to cite but one example, example, as two pretrial detainees per in the decade since 1995 the percent- five arrests. (Care should be taken to age of pretrial detainees among all control for other factors, such as high inmates fell from 50 percent to 42 rates of juvenile or gang crimes, which,

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as with “organized” crime generally, Of course, this might lead reform- tend to receive higher rates of pretrial ers to unsettling conclusions: that the detention.) The median length of time most helpful and feasible approach is someone spends in pretrial detention something unanticipated, or (worse) would also be a useful indicator. not part of their repertory—or even Tracking median times to disposition (a that there are many more critical measure of the time it takes to resolve fronts to this campaign than they had the case at the first instance level) previously considered. Confronting would tell us if a significant speeding this may pose a profound challenge on up of the judicial process was also at several levels to some actors. Like the play and possibly a cause of a dimin- proverbial man with just a hammer, ished pretrial detainee population. organizations tend to see most prob- Conviction rates, and a qualitative lems as nails—apparently tailor-made assessment of the process, from arrest for just the tools they have at hand. through charging and arraignment (or Admit that the problem derives from its equivalents) and on to verdict, also unexpected and/or diverse sources could shed helpful light on the ques- and you are obligated to consider that tion of whether other changes in the multiple approaches may be in order. way judges are handling cases might If resources are limited, and the explain why the pretrial population reform agenda not politically popular may have appeared to shrink in com- within the mainstream, individual parison to the postjudgment pool. Of reform groups may be hard-pressed to course, such studies of the diligence recruit new staff or partners capable of and fairness demonstrated by judges, filling gaps in capacity. prosecutors, and defense lawyers as However daunting the challenge of the process unfolds would provide tailoring the response to carefully invaluable additional information on measured symptoms, it does not whether judges are actually changing imply obsolescence for any of the the way they make pretrial release activities described. Better representa- decisions, although the high volume tion at the pretrial stage might help of relevant incidents that we would marshal facts that could make release want to evaluate might place some more common; defense lawyers could extraordinary demands on this sort of be well served by trained visitors to methodology. Thus, prima facie statis- holding cells who can interview tical evidence of a beneficial change detainees to develop relevant favorable without a corresponding cost might facts; appropriate legislative changes look like this: judges ordering pretrial could, if faithfully implemented, detention at a slower rate,9 while other directly attack a tendency to detain statistics hold steady. Going back to too readily. From this perspective, Sparrow’s injunction, with numerous the interventions described in this indicators and the desired trend lines volume might be reframed as useful identified, one can proceed to consider probes, an initial phase in a better- specific interventions. informed, possibly broader effort at

178 Open Society Reflection

measurable, sustainable change. just invested significant sums and pre- The important step of looking later- cious time in their own information ally at other experiences, not just management. These agencies could for other tools but for a broader have been a favorable audience for perspective on the dynamics of new information if it had been reform, seems to be difficult to take, or delivered in a way that enhanced, at least not typical. None of our rather than competed with, their accounts mentioned efforts in other recent efforts. countries, although it is not entirely Boiled down, the suggestion for clear what this indicates. The Justice advocates and reformers is to make Initiative certainly perceives a gap in the politics serve the policy and vice the literature, which this volume is intended to help address. Would forging links between reformers in different places be difficult because The suggestion for advocates and diverse experience is not viewed as a reformers is to make the politics terribly relevant source of ideas? Or would fostering the practice of serve the policy and vice versa. checking for counterparts and advice from abroad be fruitful? In fact, the range of experience versa. Data (e.g., the high or hidden discussed here usefully cautions us to costs of detention, the incidence of rethink the instinct to divide policy disease and violence affecting and politics into separate concerns. detainees still innocent in the eyes of Missed opportunities to measure (and the law) and analysis (e.g., the vast then trumpet) policy impact are disparities in pretrial decisions that actually a symptom of a failure to correlate with illegitimate factors like identify the political points that might race or poverty) can enhance the bolster or sway various constituencies. justifications for reform or counter Indeed, the closer one looks at the the opposition platform. Promoting a individual situations, the more evident politics of economic efficiency can not it becomes that the line we attempt to only reframe the debate away from the draw actually marks a broad interface traditional polarities of “hard” versus rather than a division. What South “soft” on crime but also encourage African reformers might have seen as greater scrutiny of the real impact a technical problem—the incompati- of policies that have no empirical bility of their new pretrial services soft- foundation. Attending to both politics ware with the emergent systems being and policy, and acknowledging their rolled out by the Department of Justice interdependence, at least ensures the and the courts—also reflected, as right posture for success, as it guaran- Louise Ehlers suggests, a missed tees that reformers will be oriented opportunity to understand and play to toward the greatest potential problems the motivations of agencies that had and opportunities.

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How would our reformers respond carceration is depriving the public of to this suggestion? One response resources (although ensuring that the might be that it is too dangerous to savings are actually redeployed to use- attempt in a policy arena characterized ful ends is another daunting battle). by far more demgoguery than detail. Some advocates of detention reform in The technocrat’s definition of success the United States have turned to may be sublime in its nuanced com- exposing the ways in which officials plexity, but for precisely that reason— have tried to hide the costs of prison its lack of simplification—is ridicu- construction through privatized lously uninspiring as a political objec- financing and the financial risks to the tive. Russian code reformers who con- governments (and taxpayers) that have ducted outreach among implementing pledged to make good on defaults.11 agencies, only to have their opponents In many countries, the marginal seize on the resulting feedback as the cost of an additional detainee is con- basis for undermining the reforms, sidered negligible, as labor costs are might say that their political opportu- low, little public money is spent on nity was both too valuable and too food or other items for the inmates, fragile to expose it up to a real dia- and overcrowding does not generally logue. 10 These are fair objections, and prompt the building of new facilities. cannot be dispelled until someone has Even in countries with lower fixed successfully piloted a synthetic costs, however, estimates of more indi- approach and inspired others to follow rect expense—lost employment, (and validate) the way forward. heightened exposure to disease and/or Is that feasible? The future chal- violence, and other expenses incurred lenge will lie in expanding the spec- by inmate families to help maintain trum of “winning” issues. Only the their detained relative—can begin to account from the United States look significant. If we stop to consider, mentions the costs of incarceration, a as Martin Schönteich suggests, the potential trump card. To many, this spread of infectious diseases such as will come as no surprise: in countries tuberculosis and AIDS among prison- with high labor costs and arguably ers and by them to the general popula- tougher rules on prison overcrowding, tion upon release,12 the impact on fam- putting defendants in pretrial custody ilies, business, the health care system, is more expensive than just about any and the public coffers could dwarf alternative means of ensuring that other concerns about incarceration defendants make it to trial without and soften resistance to reform. flight or further charges. Although In Mexico (with an officially some governments have actually estimated per capita prisoner cost of invested in prisons as a down payment aboutone-fifth of that in the United on a crude form of local economic States)13 the actual calculated public development, jurisdictions with stag- savings as a result of a modest bail nant or sinking economies should be supervision project in one Mexican ripe for an examination of how overin- state have proven a powerful incentive

180 Open Society Reflection

for a neighboring state government to Chilean and Russian accounts of explore proposals designed to help legislative efforts suggest that the lower historically high levels of pretri- agreements among different factions al detention. A forthcoming study of were tenuous or illusory and withered indirect costs of incarceration in quickly. The chief advocates of Mexico should add an important new Russian reform were not able to find dimension to the debate there. ways to avoid key changes through Marshaling comparative experi- compromise and instead witnessed ence—a rich source of data—has rollbacks that, according to Olga political as well as technical value. The Schwartz, sent a crucial signal that the United States’ deserved reputation as “addicted to incarceration” might enhance the political value of examples of alternative approaches tried There is much yet to be tried and learned. here. Because successful initiatives are universally attractive, politicians will characteristically be interested to learn what previously undetected advan- legislature was once again favoring the tages may have impelled others to prosecution—and detentions skyrock- embrace such experiments. eted. (Ironically, some of Chile’s most In some cases a more give-and-take influential reformers, lacking suffi- approach to politics might provide an cient data to rebut the claims arising alternative to “winning” the policy from the repeal factions, took a trans- debate. The most successful of our actional approach in selling off parts examples here all incorporated some of the pretrial detention reform in element of this approach. We have order to safeguard the larger re-engi- noted above the PAS’s quid pro quo neering of Chilean criminal proce- with the Malawi Law Society and D. dure.) South Africa’s pretrial services Alan Henry’s account of the search for project, in many ways the brainchild efficiencies he could offer to imple- of the justice minister, faltered menting agencies in the United States because the frontline agencies were in order to bring them on board. In never properly incorporated and felt fact, an important commonality across that the project’s primary currency— the five best-sustained initiatives was a new information about cases and workable arrangement with agencies defendants—never came downstream having some operational control over to them in a usable form. the subject matter. Even Nigeria’s proj- There are, of course, caveats. Even ect organizers, who enjoyed strong a battery of seemingly highly relevant political support at high levels of statistics remains subject to multiple government, were quick to seek interpretations. Additionally, the pub- formal collaborations with the police lic response to data can be unexpected. and obtain agreements with them at A 2002 survey of public attitudes the precinct level.14 By contrast, the in the United Kingdom regarding

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the shockingly high cost of incarcera- nents of reform—should be a distinct tion largely provoked calls to cut back advantage in bringing together numer- on the prison “luxuries” that were ous interests and producting collabora- presumed to be driving up expendi- tive actions. tures.15 Finally, political marriages of The ambiguities touched on here convenience can become, without prior and highlighted throughout this vol- warning, inconvenient for one or both ume suggest there is much yet to be parties—witness Putin’s divestment tried and learned and that future from the reform movement of 2002. efforts should embody a rigor and Reform advocates can help counter sophistication equal to the complexity negative influences by working with and sensitivity of the task. Even if the different messages and making sure relationship of the reform impulse to that they are timely. Case studies about politics—defined as the processes and individual successes with alternatives calculations that determine stakehold- to detention can be powerful vehicles er decisions whether to promote for public education and particularly and/or implement change—is useful in the wake of unfortunate inevitably characterized by tensions, it incidents that stoke fears about the should not be ignored. Good informa- dangers of liberalized treatment. tion is one critical tool for mediating Success in politics, partisan operatives these tensions, while allowing advo- remind us, is about crafting the right cates to marshal political support, messages for shifting audiences. define appropriate interventions, and Having good information—better, develop accurate and effective meas- at least, than that proffered by oppo- ures of impact.

Notes

Robert O. Varenik is the acting executive director of the Open Society Justice Initiative.

1. Pretrial detainees generally form a subset of the jail population, which in turn can include defendants detained awaiting trial; defendants who have been convicted already but are detained for a violation of their probation while they await trial on another offense; transferees from other facilities who have not been permanently assigned; and convicts serving relatively short sentences for misdemeanor-level crimes. When one considers the ever-changing nature of the population due to the relatively short-term stays (compared to post-conviction sentences) it becomes more apparent why it is extremely difficult even to isolate the pretrial detainee population for measurement.

2. This formulation comes from Christopher Stone of the Kennedy School of Government.

3. Another, more positive account of the Russian reforms avoids mention of the counterreform that followed. Lauding the tactics of the reformers for achieving something while circumstances permitted, the author notes that a more deliberate, less opportunistic approach might not have yielded anything before the tide turned against reform. Matthew Spence, “The Complexity of Success in Russia” in Thomas Carothers, ed., Promoting the Rule of Law Abroad (Washington, D.C.: Carnegie Endownment for International Peace, 2006). It is clear however, that after initial significant decreases in pretrial detention, the numbers shot up dramatically after 2002. Statistics

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from the Federal Enforcement Service actually indicate that the detention numbers were higher in 2005 than before the reform, although court data suggest they are still lower than prereform levels. See Olga Schwartz, “Ebb Tide: The Russian Reforms of 2001 and Their Reversal” on pp. 116-117 of this volume.

4. The project report provides statistics covering only the catchment area of the project.

5. Remarks at seminar, “Measuring Impact in Human Rights: Models for a Path Forward” (Cambridge Massachusetts: Carr Center for Human Rights, July 7, 2006).

6. See, for example, L. Bhansali and C. Biebesheimer, “Criminal Justice Reform in Latin America,” in Carothers, Promoting the Rule of Law Abroad (2006), 313–15. In a survey of results across Latin America, perhaps the world’s largest laboratory for criminal justice reforms, the authors draw upon figures from USAID, national governments, and UN and OAS-sponsored agencies mandated to study and compile data on criminal justice; for pretrial detention, this is the sole indicator cited. USAID’s technical guidance for its field personnel suggests that even this statistic represents a luxury, because outside Latin America many developing countries do not record much information about detainees. “Handbook of Human Rights and Governance Program Indicators” (Washington, D.C.: U.S. Agency for International Development, 1998), http://www.usaid.gov/our_work/democracy_and_governance/publications/pdfs/pnacc390.pdf.

7. See Benjamin Naimark-Rowse, et al., “Studies in Reform: Pretrial Detention Investments in Mexico, Ukraine, and Latvia” on pp. 152-171 of this volume.

8. In fact, as a proportion of the general population, pretrial detainees rose from 49 to 85 per 100,000 inhabitants in the decade after 1995.

9. In other words, fewer new pretrial detainees per arrest.

10. On the other end of the spectrum, Venegas and Vial point to an unusually high degree of consensus on pretrial detention reforms at the time Chile’s initial reforms were considered. This concensus resulted in there being virtually no debate on the issue, and reformers appeared unprepared for the fracturing of what they now view as an “unstable” coalition behind the reform. The consequent absence of crucial pretrial detention data to accurately guage the impact of reform left advocates ill-positioned to stem the damage from the mushrooming partisan demagoguery about the new system’s “promoting criminal impunity.” For reformers there, a more disciplined approach to the technical aspects of policy might have been better politics.

11. Kevin Pranis, Doing Borrowed Time: The High Cost of Back-door Prison Finance (Brooklyn: Justice Strategies, 2006) (citing bond experts who warn that “[a] wave of private jail construction designed to spur economic development in the rural Southwest poses a growing risk to bondholders and the counties that stand behind the projects”).

12. Martin Schönteich, “The Scale and Consequences of Pretrial Detention around the World,” on pp. 11-13 of this volume.

13. A recent study commissioned by the Justice Initiative preliminarily put the total of direct and indirect marginal per diem costs in one state at about $50 per prisoner.

14. Subsequent events have since proved the utility of this approach. Despite significant turnover among allies of the project, the reforms have survived and prospered.

15. “What do the public really feel about non-custodial penalties?” (London: Esmée Fairbairn Foundation, November 2002), www.rethinking.org.uk/PDFs/Briefing%203%20-%20Atti- tudes%20to% 20custodial%20sentences.pdf.

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Justice Initiatives

The Open Society Justice Initiative, an operational program of the Open Society Institute (OSI), pursues law reform activities grounded in the protection of human rights, and contributes to the development of legal capacity for open societies worldwide. The Justice Initiative combines litigation, legal advocacy, technical assistance, and the dissemination of knowledge to secure advances in the following priority areas: national criminal justice, international justice, freedom of information and expression, and equality and citizenship. Its offices are in Abuja, Budapest, and New York.

Board The Justice Initiative is governed by a Board composed of the following members: Aryeh Neier (Chair), Chaloka Beyani, Maja Daruwala, Anthony Lester QC, Jenny S. Martinez, Juan E. Méndez, Wiktor Osiatynski,´ Herman Schwartz, Christopher E. Stone, Abdul Tejan-Cole, and Hon. Patricia M. Wald. Diane Orentlicher is on leave from August 2007-August 2008.

Staff The staff includes Robert O. Varenik, acting executive director; Diane Orentlicher, special counsel (from August 2007-August 2008); Zaza Namoradze, Budapest office director; Kelly Askin, senior legal officer, international justice; David Berry, senior officer, communications; Sandra Coliver, senior legal officer, freedom of information and expression; Julia Harrington, senior legal officer, equality and citizenship; Katy Mainelli, director of administration; Chidi Odinkalu, senior legal officer, Africa; Martin Schönteich, senior legal officer, national criminal justice; and Denise Tomasini-Joshi, associate legal officer, national criminal justice. James A. Goldston, executive director, is on leave from August 2007-August 2008.

Contacts New York Budapest Abuja 400 West 59th Street Oktober 6. u. 12 Plot 1266/No.32 New York, NY 10019, USA H-1051 Budapest, Hungary Amazon Street Phone: +1 212-548-0157 Tel: +36 1 327-3100 Maitama, Abuja, Nigeria Fax: +1 212-548-4662 Fax: +36 1 327-3103 Phone: +234 9 413-3771 Fax: +234 9 413-3772

Online email: [email protected] www.justiceinitiative.org

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