Presumption of Guilt The Global Overuse of Pretrial Detention Presumption of Guilt: The Global Overuse of Pretrial Detention Copyright © 2014 Open Society Foundations. This publication is available as a pdf on the Open Society Foundations website under a Creative Commons license that allows copying and distributing the publication, only in its entirety, as long as it is attributed to the Open Society Foundations and used for noncommercial educational or public policy purposes. Photographs may not be used separately from the publication. ISBN: 978-1-936133-84-0 PUBLISHED BY: Open Society Foundations 224 West 57th Street New York, New York 10019 USA www.OpenSocietyFoundations.org FOR MORE INFORMation contact: Martin Schönteich Senior Legal Officer Criminal Justice Program [email protected] Design and layout by John Emerson, backspace.com and Heather Van De Mark, heathervandemark.com Printed by GHP Media, Inc. Cover photo © Benedicte Kurzen/NOOR for the Open Society Foundations Table of Contents Acknowledgments i Executive Summary & Recommendations 1 Introduction 7 The Scope of Pretrial Detention Around the World: Its Extent and Cost 11 Introduction 11 The Extent of Pretrial Detention 15 The Cost of Pretrial Detention 28 Conclusion 31 Who Are the World’s Pretrial Detainees? 33 Introduction 33 The Poor 33 Marginalized Minorities and Non-Citizens 49 The Mentally Ill and Intellectually Disabled 51 Low-Risk Defendants, Persons Accused of Minor Offenses, and the Innocent 53 Conclusion 55 Circumstances of Detention and Impact on Detainees and their Communities 57 Introduction 57 Worse off than Convicted Prisoners 57 Circumstances of Detention 61 Health Consequences of Detention for Detainees and their Communities 76 Economic Impact on Detainees and their Families 81 Criminogenic Impact of Detention 91 Conclusion 93 The Causes of Arbitrary and Excessive Use of Pretrial Detention 95 Introduction 95 The Presumption of Innocence: An Elusive Aspiration 96 Imprecise Laws Lead to Arbitrary Application 98 Restrictive Laws Promote Pretrial Detention 100 Flouting Limits on Detention 101 Public Pressure and Populist Policy Responses 101 Dearth of Political Will 103 Police and Prosecutorial Influence 104 Corruption 106 Procedural Factors 108 Lack of Coordination between Criminal Justice Agencies 109 The Role of Limited Resources 111 Inadequate Legal Representation and Assistance 113 Conclusion 115 The Implications for the Rule of Law 117 Introduction 117 Arbitrary Arrest and Detention 118 Restricted Access to Legal Counsel 121 Duration of Detention 123 Lack of Redress and Accountability 125 Mass Releases Due to Overcrowding 126 Impact on Public Confidence 127 Conclusion 129 Reducing the Arbitrary and Excessive Use of Pretrial Detention 130 Introduction 130 Political Conditions that Support Pretrial Detention Reform 130 Laws and Policies to Reduce Pretrial Detention 133 The Role of Data in Assessing the Problem 137 Coordination between Criminal Justice Agencies 140 Reducing the Number of People Who Come into Conflict with the Law 142 The Role of Lawyers and Paralegals 148 Government Programs that Reduce Pretrial Detention 159 Conclusion 172 Conclusion 174 Appendix: International and Regional Standards, Norms, and Jurisprudence 175 Bibliography 182 Endnotes 203 ACKNOWLEDGMENTS This report was written by Martin Schönteich, senior legal officer for the Open Society Justice Initiative’s Criminal Justice program. Chapter Five, Implications for the Rule of Law, was contributed by Robert O. Varenik, program director for the Justice Initiative. The book was edited by David Berry, with the assistance of Kate Epstein. The author wishes to acknowledge the valuable contributions of many Open Society Foundations colleagues, including Denise Tomasini-Joshi, Ina Zoon, Jonathan Birchall, Kersty McCourt, Madeleine Crohn, Robert O. Varenik, Stanley Ibe, Edit Turcsan Bain, Marina Ilminska, Borislav Petranov, Louise Ehlers, and Mary Miller Flowers. Invaluable research was provided by Anna Husarska, Alina Finkelshteyn, Ari Brochin, Elena Kravtsoff, Steven Primeaux, and Iya Megre. Special thanks are due to the Open Society Foundations Human Rights Initiative for provid- ing support for the research and publication of this report. The Open Society Justice Initiative bears sole responsibility for any errors. 1 Executive Summary & Recommendations The arbitrary and excessive use of pretrial detention around the world is a massive form of human rights abuse that affects in excess of 14 million people a year. The right to be presumed innocent until proven guilty is well established. Yet this right is violated widely and often—in the developed and developing world alike—and the violation goes largely unnoticed. Few rights are so broadly accepted in theory, but so commonly abused in practice. It is fair to say that the global overuse of pretrial detention is one of the most overlooked human rights crises of our time. Given that the presumption of innocence is universal, detaining arrestees pending trial should be rare. However, many jurisdictions around the world vio- late the principle that pretrial detention should be used sparingly, as a last resort. Instead, it has become the default setting of criminal justice systems. One out of three people behind bars has not been found guilty of a crime. In some parts of the globe, pretrial detainees outnumber convicted prisoners. At this moment, 3.3 million people are in pretrial detention worldwide. And that is a conser- vative estimate, because official data ignore the tens of thousands of people detained in police stations. Cutting the number of pretrial detainees could resolve prison overcrowding, limit the spread of disease, reduce poverty, and spur development. During the course of an average year, approximately 15 million people are admitted into pretrial detention. Some of them are detained for a few days or weeks, but many will spend months and even years waiting for their day in court. Council of Europe countries have some of the most developed criminal justice systems in the world, yet their average period of pretrial detention is almost half a year. The present global cohort of 3.3 million pretrial detainees will collectively spend an estimated 660 million days in detention—a terrible waste of human potential that comes at a considerable cost to states, taxpayers, families, and communities. Most pretrial detainees are poor, and economically and politically marginal- ized. The poor and powerless lack the money to hire a lawyer, procure bail (or bond), or pay a bribe—all tools to secure pretrial release in many jurisdictions. Poor and marginalized people also lack the social and political connections and influence that can facilitate pretrial release in many places. Ethnic and religious minorities and foreigners are significantly overrep- resented in pretrial detention systems. Dalits in South Asia, indigenous people in Australia and Canada, and ethnic minorities in Israel and the United States are grossly overrepresented in pretrial detention. Mentally ill and intellectually chal- lenged persons also face disproportionate risk of being held in pretrial detention. Many pretrial detainees will eventually be released without trial, or tried and acquitted. Many others will be found guilty but ultimately receive a non-custodial sentence for a minor offense, or be sentenced to less time than they have already ExEcutivE Summary 2 served. In England and Wales—a jurisdiction that uses pretrial detention relatively sparingly—over half of all pretrial detainees ultimately are acquitted or receive a non-custodial sentence. Among juvenile pretrial detainees the proportion receiving a non-custodial sentence or an acquittal is even higher. In Bolivia and Liberia, where between 80 and 90 percent of all prisoners are pretrial detainees, few detainees will ever be convicted of a crime that carries a prison sentence. There are situations under which pretrial detention is warranted. When there is good reason to think an arrestee—if released—will commit a crime, threat- en a witness, or abscond, he should be held pending trial. But these conditions do not apply to most pretrial detainees. The vast majority of pretrial detainees pose no threat to society and can be safely released pending trial. Simply put, they should not be in pretrial detention. It is a cruel irony that many jurisdictions treat pretrial detainees worse than they treat convicted prisoners. Pretrial detainees are often held in police lockups— facilities not designed for long-term occupancy, where conditions can be particularly crowded and harsh—for extended periods of time. Prison systems treat pretrial detainees as temporary and incidental and therefore devote fewer resources to them. Compared to sentenced prisoners, pretrial detainees have less access to food, beds, health care, and exercise. While convicted prisoners are often segregated into low-, medium-, and high-security facilities, a pretrial detainee charged with minor theft will be confined in the same facilities as someone charged with a serious violent crime. Pretrial detainees are at greater risk of not being separated according to age and gender. Many jurisdictions confine juvenile pretrial detainees with adults, especially in police lockups, and in some places women are confined with men. Especially in resource-poor countries, pretrial detainees are likely to be confined with convicted prisoners. This exposes pretrial detainees to a hardened offender subculture, where violence,