TRENDS IN THE USE OF IMPRISONMENT PART TWO Trends in the use of imprisonment Pre-trial detention Pre-trial detention should be an exceptional measure – only to be used when necessary and proportionate and in compliance with the presumption of innocence and the right to liberty.52 Its use is only acceptable as a measure of last resort and in very limited circumstances.53 Around 30 per cent of prisoners globally have not been convicted and in some countries over 60 per cent of people in prison are in pre-trial detention.54 There were close to three million people held in pre-trial detention and other forms of remand imprisonment throughout the world on any given day in 2016, when the most recent figures were published.55 This figure is likely to be an underestimate, as it does not include detention in police custody. The total number remanded into custody each year is of course much higher, reaching a total of approximately 14 million people.56 Since 2000, the numbers of pre-trial prisoners have grown rapidly in the Americas (an increase of 60 per cent) and Asia (34 per cent), while in Oceania the pre-trial population has grown by as much as 175 per cent.57 Africa and Asia have seen a far more modest rise, but pre-trial prisoners still constitute over 40 per cent of the prison population in much of Africa and in many countries in southern and western Asia. In Europe by contrast, the pre-trial prisoner population has fallen by 42 per cent since 2000.58 Data on the length of time people spend in pre-trial detention is hard to find. However, research suggests that remand prisoners can be detained for excessive periods of time that are often disproportionate to the sentence they would receive if found 12 | guilty. In addition, they are often held for long periods in pre-trial detention and subsequently acquitted or given a community-based sanction. For example, research conducted by Penal Reform International (PRI) in 2016 on women serving community sentences in Kenya showed that of 97 women offenders interviewed, 87 per cent had been in pre-trial detention before being given community sanctions. Most had not been granted bail and those who were could not meet the monetary bail terms or security required.59 The impact on individual prisoners of any period of time spent in pre-trial detention can be devastating, but it is worse if the detention is protracted. People taken into pre-trial detention are uprooted from their community and social and family connections are disrupted. They are also at risk of feeling pressured into pleading guilty in order to obtain lesser sentences. According to the Open Society Foundation, prisoners in pre-trial detention are commonly held in worse conditions than convicted prisoners and are at increased risk of being tortured.60 A 2018 global report on children held in pre-trial detention found that time spent in pre-trial detention results in an increased risk of torture; false confessions and unfair plea bargains; increased corruption; physical and mental abuse; prison overcrowding; long-term social and developmental impacts; and increased recidivism.61 Excessive and prolonged pre-trial detention can also have a wider detrimental impact on public perceptions of the justice system. Recent research in the Philippines suggests that its over-use has led to a widespread perception that the justice system is broken. Cynicism and disdain for the rule of law has in turn contributed to popular support for the belief that citizens should take matters into their own hands and respond themselves to criminality.62 Lack of access to legal representation and inability to pay monetary bail are common drivers of the excessive use of pre-trial detention and are closely linked to poverty. A 2018 audit by the Office of the Director of Public Prosecutions in Kenya revealed that nine out of 10 pre-trial prisoners had been granted bail or bond but could simply not afford the terms, and approximately the same proportion had no legal representation.63 In June 2018, California became the first state in the US to abolish the cash bail system for suspects awaiting criminal trial; defendants will instead be released if they are deemed likely to appear for court hearings and pose little danger to the public – this will be determined by a risk assessment process that uses data and mathematical formulas to generate risk scores.64 Some organisations have argued that the new process will not sufficiently address racial bias in decision-making and may in fact result in an overall increase in the rate of pre-trial detention.65 Other reasons behind the excessive use of pre-trial detention include a lack of adherence to time limits, which are imposed in order to regulate the time spent in pre-trial detention. Where such time limits do exist, there can be a lack of appropriate record-keeping to help ascertain how long detainees Penal Reform International and Thailand Institute of Justice | Global Prison Trends 2019