A new report is calling for global action to combat the overuse
of pretrial detention, highlighting its devastating impact on the well-being of both individuals
The report, Presumption of Guilt: the Global Overuse of Pretrial Detention, is the first ever global survey of the damage done by locking up defendants before trial, when they could be safely released into their community.
Produced by the Open Society Justice Initiative, the 260-page report calls the excessive use of pretrial detention “a massive and widely ignored pattern of human rights abuse that affects— by a conservative estimate—15 million people a year”.
“The right to be presumed innocent until proven guilty is universal, but at this moment some 3.3 million people around the world are behind bars, waiting for a trial that may be months or
even years away,” says Martin Schoenteich, senior legal office at the Justice Initiative and author of the report.
“No right is so broadly accepted in theory but so commonly violated in practice. It is fair to say that the global overuse of pretrial detention is the most overlooked human rights abuse of
our time,” he adds.
In the West Africa region, Liberia, Benin, Togo, Nigeria and Guinea all feature in the list of 20 countries where more than two thirds of all prisoners are awaiting trial. Many of these pretrial detainees will spend months or years awaiting trial. In one case which is sadly not unusual, a detainee in Nigeria, Sikuru Alade, was released last year after over nine years awaiting trial for a minor theft, after an intervention by the ECOWAS Community Court.
Not surprisingly, the vast majority of the more than 15 million people around the world who end up in pretrial detention annually are poor.
The report notes that the poor “are more likely
to come into conflict with the law, more likely to be detained pending trial” and less able to afford the keys to pretrial release: a bribe, bail, or a barrister. Ethnic minorities, and excluded
groups such as India’s Dalit community, are also disproportionately represented in pretrial detainee populations around the world.
Many don’t need to be there, but are held on charges linked to minor, non-violent offenses.
As a result, from Brazil to Pakistan, defendants spend more time behind bars awaiting trial than the maximum sentence they would receive if eventually convicted. In Chile, between
2005 and 2010, less than a quarter of pretrial detainees ended up with a custodial sentence.
The report details the horrific waste of human life that ensues—in the worst cases defendants can spend years in pretrial, their case files hopelessly forgotten. Compared to sentenced prisoners, pretrial detainees often enjoy less access to food, adequate beds, health care or exercise.
Infectious diseases—HIV/AIDS, hepatitis and tuberculosis—are common.
In jail, detainees are also exposed to the risks of violence, including beatings and torture aimed at extracting confessions, as well as corruption, as they find themselves obliged to pay
to ensure access to decent food and clothing, or even to ensure a court hearing.
The report notes that according to the World Health Organization, suicide rates among pretrial detainees are three times those of convicted prisoners.
“Not all pretrial detention is irrational or unlawful,” says James A. Goldston, executive director of the Justice Initiative. “Persons who present a genuine risk of flight or of endangering witnesses or the community must be detained before trial, in the absence of reasonable
alternatives. Applied properly and sparingly, pretrial detention plays an important role in a balanced criminal justice system.”
The report also outlines available solutions for reducing pretrial detention being pursued around the world. One important step is provide defendants with some legal advice when they appear before a magistrate, to ensure that there is proper grounds for arrest, and to make the case for pretrial release if there is no threat to the public.
These projects don’t cost much, and they can reduce costs and cut prison overcrowding. Other steps highlighted in the report include properly financing the training of judges and police, and even basic steps such as ensuring that there are police vehicles available to take suspects to court hearings.
The report calls for governments and donors to support this kind of reform work, which has a direct impact on the economic and social well-being of detainees’ families and communities.
To that end, Goldston noted that his organization and others are now pushing for the UN’s new post 2015 development goals, now under negotiation in New York, to include clear and measurable goals for this kind of work – under the rubric “access to justice”.
“After decades of over-incarceration, cutting the number of people behind bars who face trial is a global imperative—to address prison overcrowding, limit the spread of disease, combat corruption and promote the rule of law,” he said.