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Reducing the Excessive Use of Pretrial Detention

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Reducing the Excessive Use of Pretrial Detention 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 work- ing in developing countries who are contribute to prison overcrowding seeking to reform their justice systems. and, ultimately, to heightened expen- diture 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.
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