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
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