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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
Pretrial Detention Practices in Chile
Justice Initiatives looks at the global over-reliance
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
D. Alan Henry
require policymakers to limit the use of pretrial detention.
According to the Universal Declaration of Human Rights,
Studies in Reform: Pretrial 152
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 of Offenders established the following principle:
Detention: Reflections on
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
fered with if they are let free.2 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-
light that gaps exist between many
likely to be poor, unable to afford the states’ de jure and de facto compliance
services of a lawyer, and without the with international standards in this
area. Many states that continue the
resources to deposit financial bail.
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.
about the deployment of duty solici- Other international organizations,
tors in police stations in Nigeria to such as Penal Reform International,
help prevent unwarranted detention the International Centre for Prison
and also to release defendants from Studies, the European Union, the
further custody. A third describes a Council of Europe, and the United
pilot bail information scheme in Nations all disseminate guides and
South Africa that sought to diminish working papers and in some cases
the frequency of detention and remove catalogues that depict the array of
from jail defendants who could efforts around the world to make
not afford to pay money bail. A fourth detention less harmful, more humane,
analyzes a prison visitors program and and fairer.1 The experiences described
rights monitoring campaign in India in these reports are a small and not
that tried to discourage detention and necessarily representative sample of

4 Open Society
Overview

what is happening or what is possible Working within the confines of


to accomplish. But they convey a sense imperfect systems of justice is new.
of the excitement and opportunity In the postwar, postcolonial, and
underlying what appears to be a immediately post-Soviet periods of the
new approach to detention reform— 20th century, the scale of efforts to
one that emphasizes pragmatism, reform criminal justice around the
empiricism, and collaboration. world was immodest—grand projects
of reengineering that involved, typical-
ly, new constitutions, new justice insti-
1. Pragmatism in Detention Reform
tutions, and entirely new legal sys-
The real problems with detention tems. Participation in the remaking
today, these reports suggest, are not of justice systems, moreover, was lim-
with the norms but with practices.2 ited to those with legal expertise.
Almost all of the reform projects
described here took place in the shad-
ow of existing law: no revisions to
basic rules of procedure were required Almost all of the reform projects took
in order to intervene or achieve impor-
place in the shadow of existing law:
tant changes in Malawi, India, Nigeria,
South Africa, and the United States. no revisions to basic rules were required
In fact, most of the projects involved in order to achieve important changes.
modest adjustments to existing rou-
tines and institutions—the expansion
of an existing service in Nigeria (legal
aid lawyers), the creation of an auxil-
iary service in Malawi (a mobile fleet Justice was a realm almost exclusively
for lawyers and judges and academics.
of paralegals), the policing of time-
Today, by contrast, we are witnessing
lines for decisions in the United States
not so much the creation of new foun-
(volunteer, interagency review com-
dational rules and fundamental insti-
mittees), organized pressure for com-
tutions such as civilian police forces
pliance with rules about the duration
or public defender offices, but rather
of detention in India (structured the strengthening of flawed justice
prison visits), and the provision of systems, the better management of
verified information about the risk of operations, and the establishment
releasing defendants in South Africa of adjunct or auxiliary organizations
(bail information reports). These and that can support, adjust, and extend
other promising solutions consist of the services of the state. The ambitions
practical modifications to existing may remain grand, but the scale of
operations. “The seeds of reformation projects is modest. And the barriers
and improvement in the administra- to participation are lower, because the
tion of justice,” writes R.K. Saxena, required skill sets can be developed
“lie dormant in the existing law itself.” outside of law school.

Justice Initiative 5
Pretrial Detention

2. Empiricism and the measures that had political meaning


Wheels of Measurement as well as analytical value had to be
In each case described here, public invented on the spot.
officials and project managers had to These reports also show that even
manufacture new measures of pretrial rudimentary measures can be power-
detention. The information needed to ful. In Malawi, the paralegal services
detect and diagnose problems with pre- prepared simple lists of people in
trial detention, and the data needed to detention so that officials could count
simulate solutions or drive indicators individuals, recognize cases, prioritize
of progress and deterioration, simply hearings, and sometimes send people
did not exist. Because government home. Without prison visits and para-
agencies collect information to perpet- legals, that information did not exist
uate routines, not change them, and in a reliable form. In India, prison
visitors also produced new counts of
inmates in different places according
Because problems with pretrial detention to the stages of their custody. Their
lists also helped officials sort and
vary so greatly around the world, the prioritize cases.
wheels of measurement in justice reform
must be reinvented each time. 3. New Forms of Collaboration
and Co-governance
All of the accounts in this volume
because the character of problems describe with gusto the benefits of
with pretrial detention varies so great- good governance in pretrial detention.
ly around the world, the wheels of Much of this governance is being
measurement in justice reform must shared across the institutions of gov-
be reinvented each time. ernment as well as between state and
In Chile, the public defender’s civil society. Indeed, so much of
office had to collect new information the work of pretrial detention reform
about the frequency of applications for in these accounts involves collabora-
detention in order to debunk claims tion and co-governance that it sounds
that prosecutors were too lenient on strange to call the civil society organi-
offenders. In Russia, the legislature zations nongovernmental.
surveyed people’s experiences with Each report describes the invention
justice, through conversations and or invigoration of better management
polls at regional meetings of officials, and interagency cooperation and clos-
to create measures of the impact of er scrutiny of detention practices.
reforms that balanced the complaints These include venues for reviewing
of individual agencies and thus helped activities within one justice institu-
manage the temptation to withdraw tion, such as automatic review com-
the reforms. In both cases, the sources mittees in the courts and new
of information were new, and the management mechanisms in the jails,

6 Open Society
Overview

and also interagency forums such as Supporting New Trends


court-user committees and national in Detention Reform
monitoring commissions and still The new focus on practices instead
other mechanisms for sharing infor- of norms, the emerging art of collabo-
mation across departments, profes- ration and cooperation, and the insis-
sions, and agencies. These and other tence on sound systems of measure-
interstitial and intermediate opera- ment may be signs of a promising and
tions help preserve general govern- more participatory approach to justice
reform. The skills needed by these
ment responsibility for dealing with
practitioners of justice reform seem to
detention while also sustaining
come from economics and engineer-
relationships between nongovern- ing, politics and social science as
mental activists and their colleagues much as from law and human rights.
in the state.
The character of the collaborations
also may hold a clue about how to sus-
The new focus on practices instead of
tain change over time. Most projects
built relationships with several differ- norms represents a promising and more
ent government agencies, not just one participatory approach to justice reform.
official or institutional partner. Those
projects that hitched their fortunes to
one leader or were dependent on one Justice reform in this generation,
institution fared worse than those that to pinch a phrase from a young prose-
built a wide platform of friends and cutor in Chile, is as much about poet-
colleagues. This strategy of diversifica- ry as it is about plumbing. But the
tion, also, was as much a conscious curricula in law schools and human
means of managing project risks as it rights training programs today
was a reflection of the great peculiarity emphasize theory over practice, poetry
of pretrial detention: no single govern- over plumbing, and the schools and
ment agency controls detention and instructors that can firm up the skills
sets for this new generation have yet
no one department acting alone
to be created. So while these accounts
can solve its problems. By forging
of reform inspire optimism about the
unconventional alliances across range of people who can participate,
government institutions and with they also illustrate the need to support
officials at many levels of authority, the acquisition of skills for under-the-
project leaders helped ensure a longer sink justice reform.
shelf life to innovation. And by Most of the projects described
documenting and memorializing the here would have benefited from
experiences in a public manner, they more scientific and internationally
also prepared the seeds for future comparative measures and informa-
rounds of collaborations. tion. In Malawi, India, and Nigeria,

Justice Initiative 7
Pretrial Detention

for example, evaluations of progress lems complying with the conditions


depended on simple before-and-after of liberty? What is the net contribution
measures of the proportion of unsen- to public safety of placing people
tenced inmates in prison, even though in jail? What kind of drain on public
a whole range of forces and factors investments in schools and roads
wholly unrelated to the intervention comes from expenditures on jails
can affect this measure. In Russia and prisons?
and Chile, the fragility of measures of International norms and guidance
detention placed reform legislation in on pretrial detention are becoming
jeopardy, especially by allowing claims more precise today, but handy answers
that higher crime rates and increased to these kinds of questions are still
pretrial release were related. lacking. There also is no database yet
on what constitutes “a reasonable
time” to trial or what “restricting
To convince skeptical observers that detention as far as possible” might
investments in reform make sense, mean in practice. An investment in
the measurement of these variables
practitioners need indicators that and other basic operations—such
matter to the public as a whole. as the number of days between arrest
and sentence in prosecutions for theft
or assault—in a few exemplary juris-
To convince skeptical observers
dictions would help innovators around
that investments in reform make
the world locate their own practice
sense, practitioners need globally rele-
in global context.3 When reformers in
vant measures of local justice as well
Malawi can show not only how their
as indicators that matter to the public
practices accord with international
as a whole. They need to compare
standards but how they compare to
practices across countries and to
routines in Botswana, Brazil, and
measure detention in ways that have
Belgium they will command greater
meaning for public officials and citi-
attention from public officials.4
zens who are typically not concerned
with jails and justice. Of course, the Project leaders around the world
stable of questions that matter to will need not only access to such infor-
the public will vary by country and mation; they will need training in
context, but we know enough already the development, management, and
to list a few questions that capture interpretation of the data. There is
common concerns: no need for new universities or degree
What type and proportion of vic- programs. Methods camps and sum-
tims receive timely or full restitution mer schools organized and taught
when offenders are placed in deten- by project managers and NGO leaders
tion? How frequently do defendants would be adequate means of circulat-
who are not in detention have prob- ing knowledge about the arts of collab-
oration and measurement.

8 Open Society
Overview

The new nature of collaborations justice, endorsing their proposals and


with government agencies today, jointly exploring new ideas. If the
finally, creates additional training chal- degree of constructive engagement
lenges for the leaders of nongovern- between state and non-state actors in
mental organizations and the officials matters of pretrial detention is a sign
with whom they work. Not all organi- of progress, then there have been
zations or donors are prepared for and major advances around the globe.
comfortable with such extensive Also remarkable is that many of the
collaboration, especially with govern- projects achieved or contributed to
ments that are unstable, unpre- very positive results. In India, in
dictable, or responsible for great abus- the states in which the prison visitors
es. At a workshop for the discussion program operates, the proportion of
of these reports, one author asked, “awaiting trial persons” is much lower
“When is a collaboration ‘collabora- than in states in which it does not
tion’?” Privately, public officials in the operate. In Malawi, not only did the
justice sector sometimes admit skepti- proportion of inmates in detention fall
cism about their partners, not know- during the period of the operation
ing the backgrounds, or how long they of the paralegal advisory scheme; so
can count on their support. There are did their absolute number. In Nigeria,
ethical questions to be managed on too, the proportion of all inmates
both sides. awaiting trial in states where duty
solicitors were active decreased, and a
Optimism and Realism large number of detainees were also
The mere existence of all this activity sent home before trial. And in Chile,
to reform pretrial detention is remark- the United States, and initially in
able. Around the world today, NGOs Russia and South Africa, other innova-
are intervening in traditional opera- tions helped suppress the number of
tions of the state, operations in which people put in detention.
public officials may lack the informa- These are two very hopeful signs of
tion and resources necessary to be a more humane approach to pretrial
sure about the equity and efficiency of detention, and yet the accounts here
their decisions. Justice officials have are not uniformly uplifting. Far from
good reasons to be wary of alliances it. The reports show not only that gov-
in civil society, as well as powerful ernments routinely place in detention
incentives to resist efforts to reduce people who need not be there but also
detention. And yet in most cases, that it is difficult to sustain innova-
the interventions described here took tions and collaborations over time and
place not just with the indulgence of assure continued restraint in the use
governments but with their active col- of detention. In South Africa today,
laboration. Governments today, these there is an active pretrial services
reports show, are working closely with program in only one province, and
nongovernmental organizations in there are large numbers of people in
the most sensitive spheres of criminal detention solely because they cannot

Justice Initiative 9
Pretrial Detention

afford bail. In both Russia and Chile, Progress in pretrial detention is


legislators quickly revised reforms, not a triumphant trend but rather
demonstrating the fragility of progres- an occasionally rewarded impulse. Not
sive laws and practices on detention. all projects take off, and even when
In the United States, especially in poor good ideas are implemented, the
minority communities, juveniles are returns can be marginal and diminish
always at risk of detention, despite quickly. But this observation need not
greater awareness of the long-term be discouraging. In fact, the diligent
harm it can cause and a wider array inventiveness of reformers around
of proven alternatives for managing the world should be inspiring, for
it reminds us that good outcomes
delinquent youth. Around the world
in criminal justice are a human arti-
today, far too many people remain in
fact—imperfect, inconsistent, and
jails, usually in conditions that are
as much a matter of trial and error,
dangerous for inmates, guards, and
as it were, as of legal science and con-
the communities to which they even-
stitutional engineering. The pursuit
tually return. of justice, these reports suggest,
What, then, are we to make of this consists of the gradual development
field? What is the value of investing of slightly better but usually temporary
in reform if detention remains a prob- solutions to wretched human prob-
lem in so many parts of the world? lems. That there is no end to that
What can we expect from the field in pursuit should not be a cause for
the future? resignation, but reinvestment.

Notes

Todd Foglesong is a senior research fellow at the Kennedy School of Government and coordinator
of the Justice Systems Workshop at the Program in Criminal Justice Policy and Management.

1. See, for example, Adam Stapleton, Good Practices in Reducing Pre-Trial Detention (London:
Penal Reform International [PRI], undated), www.penalreform.org/english/frset_theme_en.htm;
Dealing with Prison Overcrowding, Guidance Note 4 (London: International Centre for Prison
Studies [ICPS], 2004), www.kcl.ac.uk/depsta/rel/icps/gn4-prison-overcrowding.pdf; Pre-Trial
Detention, Guidance Note 5 (ICPS, www.kcl.ac.uk/depsta/rel/icps/gn5-pre-trial-detention.pdf).

2. Even in post-conflict countries where legal systems are being reconstructed, sometimes from
scratch, there is a new attentiveness to the tasks of making routine new norms and measuring
practices. See, for example, the recent Request for Proposals (RFP) (No. 936) from the United
Nations on building a “rule of law index” for post-conflict settings.

3. The European Union recently recommended an investment along these lines. See the
“Discussion Paper: Meeting of Experts on Minimum Standards in Pretrial Detention Procedures”
(Brussels: European Commission, Directorate General, Justice, Freedom and Security, June 9,
2006), 6–7.

4. An international nongovernmental organization, such as PRI, or a research center, such as


ICPS, might be able to host a database on these and other issues jointly with multilateral
institutions such as the UN, the European Union, or the World Bank.

10 Open Society
Overview

The Scale and Consequences


of Pretrial Detention
around the World
Martin Schönteich takes the global once convicted, given a noncustodial
measure of the over-use of pretrial sentence.
detention and its costs in both human We are only beginning to under-
and financial terms. stand the scale and consequences of
Outside of a small group of penal pretrial detention around the world.
reformers, human rights advocates, There is considerable room in this
and prison administrators, few people field for better understanding of the
have given a great deal of thought to global meaning of detention. Our
pretrial detention and its resulting measures may still be rudimentary, for
problems. Not many people under- until now little research has been
stand that excessive pretrial detention undertaken to explore how pretrial
affects, in one way or another, all
members of society. This paper seeks
to catalogue and describe the pervasive Not many people understand
impact of pretrial detention on that excessive pretrial detention
detainees, their families, the larger
community, public safety, governance,
affects, in one way or another,
and the rule of law. all members of society.
On any particular day around the
world, about three million people are
detention affects people and institu-
held in pretrial detention. During the
tions beyond the individual detainees
course of an average year, 10 million
and their places of detention.1
people are admitted into pretrial
detention. Some of these people are The papers in this volume give
detained for a few days or weeks, but definitions and measures of detention
many will spend long periods of in specific countries. This essay sets
time in custody. In some countries, those papers in a global context,
detainees will live in jail for months drawing together the present state of
and even years. knowledge on the extent and conse-
quences of pretrial detention. It shows
In many parts of the world pretrial
that pretrial detention reform is of
detainees live in worse conditions than
vital importance to anyone interested
convicted prisoners. In some countries
in fostering public policies that do
pretrial detainees are assaulted and
more good than harm and that serve
mistreated by police officers or guards.
to support broader political, economic,
In almost all countries, a significant
and social goals in any given society.
number of detainees are acquitted or,

Justice Initiative 11
Pretrial Detention

It is worth stating at the outset that awaiting trial. Prisoners whose trials
this paper does not advocate an aboli- are underway or who have been
tion of the mechanism of pretrial convicted but not yet sentenced are
detention. Unlike, for example, cruel also usually classified as pretrial
and unusual punishment or torture, detainees.6
pretrial detention does not, per se, con- Persons popularly understood to be
stitute a human rights violation.2 pretrial detainees fall into one of four
International human rights norms categories. In chronological order,
recognize the need for pretrial deten- according to the flow of the criminal
tion provided it is applied fairly, ration- justice process, the categories are the
ally, and sparingly. In certain specific following: (i) detainees who have been
cases, pretrial detention serves an formally charged and are awaiting the
important function: namely, to ensure commencement of their trial; (ii)
that defendants who pose a risk of detainees whose trial has begun but
absconding stand trial; that defen- has yet to come to a conclusion where-
dants who present a violent danger to by the court makes a finding of guilt or
the community do not commit serious innocence; (iii) detainees who have
crimes pending trial; and that been convicted but not sentenced; and
unscrupulous defendants do not (iv) detainees who have been sen-
intimidate witnesses or otherwise tenced by a court of first instance but
interfere with the lawful collection of who have appealed against their sen-
incriminating evidence. tence or are within the statutory time
limit for doing so.7 In most countries
the vast majority of detainees fall into
Defining Pretrial Detention
the first two categories.
What is pretrial detention? In the
Generally not included in the defi-
English-language world alone, people
nition of pretrial detention is the sta-
in detention are referred to variously
tus of arrested persons or suspects
as “remand prisoners,” “remandees,” who have not yet appeared in front of
“awaiting trial detainees,” “untried a judicial officer for a determination
prisoners,”3 and “unsentenced prison- whether they should be released or
ers.” In countries with other lan- detained awaiting trial (i.e., remanded
guages and different legal traditions in custody).8 Also excluded from most
and cultures, the terms for detention countries’ count of the pretrial deten-
vary, too. Indeed, one can get lost in tion population are asylum seekers,
the numerous ways of classifying undocumented migrants, and others
inmates.4 But all criminal justice sys- held administratively. While these cat-
tems differentiate between sentenced egories of people are usually not con-
and unsentenced prisoners, and most sidered to be pretrial detainees, the
afford individuals in the latter category problems they face as a result of their
a different legal status.5 detention and the impact on wider
Unsentenced prisoners are, of society is very similar to that of pretri-
course, not only persons who are al detainees generally.

12 Open Society
Overview

Figure 1: Number of pretrial detainees as a proportion of the total prison


population, by region, 2006

Europe 20.5

Oceania 21.9

Americas 25.2

World 33.1

Africa 35.2

Asia 47.8

0% 10% 20% 30% 40% 50%

Source: World Prison Population List, International Centre for Prison Studies.

The Extent of Pretrial pretrial detention between countries


9 with different size populations.
Detention in the World
Globally, as of late 2006, almost every Measured as a rate per 100,000 of
third incarcerated person was in the general population, almost 44
pretrial detention.10 But this propor- per 100,000 people were in detention
tion varies considerably by region. worldwide at the end of 2006. The
As Figure 1 shows, the region with region with the highest pretrial deten-
the highest proportion of pretrial tion rate—at more than twice the glob-
detainees is Asia (47.8 percent), al average—is the Americas (89.6 per
followed by Africa (35.2 percent). 100,000), followed by Europe (46.2),
In Europe about 20 percent of all pris- Asia, Africa, and Oceania (Figure 2).
oners were pretrial detainees in 2006. This rate of pretrial detention
Another measure of the extent varies not only between regions of
of pretrial detention is the number the world but also within individual
of pretrial detainees as a proportion of regions. For example, the pretrial
the general population. This pretrial detention rate in Eastern Europe (91
detention rate is unaffected by per 100,000) is more than six times
changes in the actual number of the rate in the Nordic countries of
sentenced prisoners and thus may be Europe (14 per 100,000). In 2006,
a better guide to assessing the scale North America’s pretrial detention
of detention around the world.11 It also rate was 137 per 100,000 (in large
makes it easy to compare the use of part due to the high level of both

Justice Initiative 13
Pretrial Detention

Figure 2: Number of pretrial detainees per 100,000 of the general


population, by region, 2006

Oceania 26.6

Africa 37.7

Asia 40.6

World 43.6

Europe 46.2

Americas 89.6

0 10 20 30 40 50 60 70 80 90 100

Per 100,000 of the population

Source: World Prison Population List, International Centre for Prison Studies.

imprisonment and pretrial detention populations below three million peo-


in the United States). By comparison, ple.13 If the world’s three million
South America had a pretrial deten- pretrial detainees were to stand in
tion rate of 64 per 100,000, while a straight line with arms outstretched
the largely English-speaking countries and touching, they could form a con-
of the Caribbean had a rate of 61 tinuous line stretching from London
per 100,000. to New York City, with enough people
Yet another, and perhaps more to spare to continue on to reach
evocative, measure of the extent of Washington, D.C.
pretrial detention around the world is Still, the figure of three million
the total number of individuals in does not adequately convey the real
detention.12 While accurate and up-to- extent of the use of pretrial detention
date data are not available for all coun- around the world. This figure repre-
tries, we know that at the end of 2006, sents a snapshot in time, only captur-
some three million people were in ing the number of persons in pretrial
pretrial detention. It is useful to place detention on a specific day—the last
this large number in perspective. day of the month or year, for example.
Some 42 percent (99 out of 237) of But in any prison system a significant-
the world’s sovereign states and ly higher number of people are placed
dependent territories have national in pretrial detention over the course of

14 Open Society
Overview

Figure 3: Number of pretrial detainees on September 1, 2003, and number


of pretrial admissions during 2003, selected European countries14

Switzerland 28,765
2,267

Italy 71,532
12,082
91,188
England & Wales
13,089

Germany 59,942
16,973

59,348
France
21,278

Ukraine 75,282
35,929

0 20,000 40,000 60,000 80,000 100,00

No. of addmissions into PTD during 2003 No. in PTD on Sept. 1, 2003

Source: Council of Europe Annual Penal Statistics, Survey 2003 and 2004.

a year than can be found in detention Switzerland presents an even starker


on a particular day. example of this disparity whereby
The number of individuals directly the number of pretrial admissions
affected by a country’s pretrial deten- in 2003 was almost 13 times as high
tion practices is therefore considerably as the count of pretrial detainees on
higher than what the data at first September 1 that year (Figure 3).
glance appear to suggest. For example, According to the Council of
13,098 persons were held in pretrial Europe, the 28 European prison
detention in England and Wales on systems for which data is available
September 1, 2003. Over the course held 181,487 pretrial detainees on
of 2003, however, 91,188 pretrial September 1, 2003. Over the course
admissions were recorded in England of that year the same prison systems
and Wales. In other words, while processed 561,131 pretrial admis-
the conventional way of presenting sions—a ratio of 1:3.1. Non-European
the data indicates a pretrial population data is very hard to come by. We know,
of just over 13,000 for England and however, that in South Africa the com-
Wales in 2003, close to seven times parable ratio for 2005 was 1:4.8. In the
as many individuals were detained United States federal detention system
during the course of that year—many the ratio was 1:6.3 in 2000/01.15
for relatively short periods of time.

Justice Initiative 15
Pretrial Detention

Using the relatively low European that country is 3.7 years. It has also
ratio of 1:3.1 and extrapolating to the been reported that remand prisoners
world as a whole, we can estimate that in many African countries are
the world’s penal systems processed at detained for many years before trial.18
least some 9.3 million pretrial admis- According to Human Rights Watch,
sions during 2006.16 If we assume pretrial detainees “in numerous coun-
that the bulk of these admissions, say tries . . . make up the majority of the
80 percent, involved unique individu- prison population. Such detainees
als, then 7.4 million persons spent may in many instances be held for
some period of time in pretrial deten- years before being judged not guilty of
the crime with which they were
charged.”19
We can estimate that the world’s penal If we—again conservatively—pre-
systems processed at least some 9.3 sume that the global average period
of pretrial detention is 167 days, then
million pretrial admissions during 2006. the three million persons in pretrial
detention at the time of writing will
spend a combined total of 501 million
tion in 2006. This is a large number days in detention. It is also instructive
of people. Most countries (140 out of to place the cumulative half-billion
237) have national populations below days the present group of pretrial
7.4 million people. Moreover, our
detainees will spend in detention
hypothetical 7.4 million pretrial
into perspective. It is estimated that
detainees would now have to start in
the manpower required to build the
Johannesburg, South Africa, to form
Great Pyramid of Khufu (Cheops),
one uninterrupted line going through
the largest pyramid in Egypt, was 52
the length of Africa to reach London
million man-days.20 The Empire State
and then cross the Atlantic to reach
Building took a “mere” 875,000 man-
Washington, D.C., via New York City.
days to build.21 In theory, therefore,
Another way of gauging the extent the total time the present cohort of
of pretrial detention is to measure pretrial detainees will spend in deten-
the number of days people spend
tion equals the man-days necessary
in detention. According to a 2003
to build an Empire State Building
European Commission investigation,
in every country of the world, plus a
the average length of pretrial deten-
pyramid the size of the Pyramid of
tion in 19 of the then 25 member
Khufu on six continents, and still have
states of the European Union was 167
a few million man-days to spare.
days, or 5.5 months.17 There are no
equivalent data for other countries. Measuring the length of a human
The global average is almost certainly chain of the world’s pretrial detainees
likely to be longer. According to the or the size of a potential labor force
report on Nigeria in this volume, the embodied in the pretrial detainees
average length of pretrial detention in incarcerated at the end of 2006 may
seem frivolous. It does, however, allow

16 Open Society
Overview

us to visualize better the true extent of communities. For example, a detainee


pretrial detention in the world today. who is infected with a communicable
In a crude way these accounts and disease while in pretrial detention
the associated statistical information may, upon his release, pose a health
permit us to discern one important risk not only to his immediate family
consequence of the widespread use of but also to the broader community
pretrial detention: the loss of liberty with which he interacts. To illustrate
for a large number of people over this link we first look at the conse-
extended periods of time. What this quence of pretrial detention on indi-
information fails to show is the wide- vidual detainees and thereafter explore
ranging and perverse consequences of its impact on detainees’ families,
pretrial detention on the physical, society, and the state.
mental, and economic wellbeing of
detainees and, importantly, its harm-
ful impact on individuals other than Largely ignored in policy debates about
the detainees and on society in gener- pretrial detention is its deleterious effect
al. It is to a discussion of these conse-
quences that we now turn. on detainees’ families, wider society, and
the effective administration of justice.
The Consequences
of Pretrial Detention
It is surprising how little information
Pretrial Detainees
exists on the consequences and impact
A decision to detain a person before he
of pretrial detention. The available lit-
is found guilty of a crime is a particu-
erature tends to focus on how pretrial
larly draconian ruling for a court to
detention affects the detainees them-
make. The numerous and insidious
selves. This is understandable, as
repercussions for the defendant are
detainees are most directly affected
ably summarized by a senior officer of
by unfair and irrational pretrial deten-
the Probation Service in England and
tion regimes, especially if—as is all too
Wales as follows:
often the case—the conditions under
which they are detained are deplorable
When a person is remanded in custody,
and inhumane. they can lose their accommodation, their
Largely ignored in policy debates job, be locked away for 23 hours each
about the use and application of pre- day, and endure the pressures, hazards
trial detention is its deleterious effect and indignities of prison life. Remand
on detainees’ families, wider society, prisoners have inadequate access to legal
state governance, and the effective representation, their prison conditions
administration of justice—all of which whilst on remand are poorer than their
are explored more fully below. The sentenced counterparts and the suicide
rate amongst remandees is very high.
consequence of pretrial detention on
Such defendants suffer regular invasions
individual detainees can often have a
of privacy each time they are searched
domino effect on their families and

Justice Initiative 17
Pretrial Detention

and often fear danger from those incar- the facilities, rights and privileges
cerated with them.22 granted to convicted inmate. . . . [I]n
some cases, such deprivations amount
The conditions of confinement for to an inducement to plead guilty in
pretrial detainees are typically worse order to obtain better conditions of
than for sentenced inmates, even in confinement.”25
affluent countries such as the United In some countries, pretrial
Kingdom. A report from Scotland detainees are held at police stations for
found “their conditions in custody are long periods of time under atrocious
at best equivalent, but most common- conditions. According to Human
ly worse than, those of convicted pris- Rights Watch reports, the conditions
oners.”23 According to Baroness Vivien in such police lock-ups “are filthy,
often stuffy and dim, and seldom offer
opportunities for exercise or recre-
Conditions of confinement for ation.”26 It is also at police stations
pretrial detainees are typically where the physical abuse of pretrial
detainees is most likely to occur at
worse than for sentenced inmates. the hands of the police to extract con-
fessions and admissions. In a number
of countries pretrial detention is gov-
Stern of the International Centre for erned by the interests of the criminal
Prison Studies, for some detainees investigation agencies. Detainees are
who are compelled to spend long peri- under the jurisdiction of the prosecut-
ods of time incarcerated under poor ing authorities, who make all vital
sanitary conditions, in acutely over- decisions regarding conditions of
crowded prisons with inadequate incarceration. According to Human
nutrition, and limited—if any—access Rights Watch, prosecuting authorities
to healthcare, a period of detention routinely prevent detainees from com-
“can be a death sentence.”24 municating with the outside world or
Detainees also suffer from neglect, inmates other than their cellmates.27
not just abuse and unsafe conditions
of confinement. Prison administrators
Damage and Deterioration
tend to see pretrial detainees as a
of Detainees Mental Health
group whose imprisonment is tempo-
rary, while the main task of prison is Imprisonment is known to have
to deal with those who have been negative effects on prisoners’ mental
sentenced. That is, prison administra- well-being.28 Factors that contribute to
tors regard their main mandate as this include overcrowding, violence and
the custody and rehabilitation of intimidation common to the prison
sentenced prisoners. A multicountry environment, enforced solitude, lack
study found that “most prison systems of privacy, a dearth of meaningful
in practice frequently deny to the activities, and inadequate mental
remand population access to many of health services. Moreover, in many
countries people with mental disor-

18 Open Society
Overview

ders are disproportionately likely to with their confinement and their pend-
be incarcerated.29 Mental disorders ing trials. These stressors, collectively
present at the time of admission to termed confinement shock, include, for
prison are usually further exacerbated example, the experience of being torn
out of their familiar social environments,
by the stress of imprisonment.
of being isolated, and of losing control
Suicide is often the single most over their lives. Moreover, they experi-
common cause of death in correction- ence increased insecurities about the
al settings. A survey of 36 member unfamiliar jail environment and anxiety
states of the Council of Europe about their trials.34
revealed that 2,851 prisoners died in
penal institutions in 2003, of whom
1,520 (53 percent) were suicides.30 This
figure does not include Russia, which Suicide rates among pretrial
has high rates of mortality in prison. detainees are considerably higher
According to the World Health
than among sentenced prisoners.
Organization (WHO), prisoners not
only have higher suicide rates com-
pared to their counterparts in the com-
munity, but suicide rates among pre- Other reasons for the high inci-
trial detainees are considerably higher dence of mental health problems
than among sentenced prisoners. among pretrial detainees include the
Among pretrial detainees the suicide fact that in many penal systems pretri-
rate is 10 times that of the outside al detainees are considered ineligible
community, while sentenced prison- for work, educational, or vocational
ers have a suicide rate three times programs or not deemed to have been
higher than in the outside communi- in prison long enough to demonstrate
ty.31 In the United States, the suicide a sustained period of good behavior.35
rate among pretrial detainees is 9 to 14 Such enforced idleness “fosters a
times higher than that in the general lowering of self-esteem, loss of skills,
population.32 In 2002, more than a and inevitable institutionalization.”36
third (38 percent) of prison suicides Moreover, the relatively high turnover
in England and Wales were committed of pretrial detainees poses limitations
by pretrial detainees, even though they on the provision of meaningful inter-
constituted only 19 percent of the total ventions. Uncertainty about the out-
prison population.33 Pretrial detainees come of their impending trials can
are particularly at risk of committing also place detainees under consider-
suicide during the initial period of able strain and has been identified as a
their confinement. significant contributory factor in inci-
dents of self-harm.37 Bullying—which
One reason for the high suicide rate has been shown to be more common
among recently detained inmates is that, among pretrial detainees—is a further
upon confinement, they may experience contributor to suicides and self-injury
multiple situational stressors associated among detainees.38

Justice Initiative 19
Pretrial Detention

For juvenile pretrial detainees, who higher rates of TB infection than the
may be experiencing their first separa- general population. In the former
tion from parents or caregivers, these Soviet Union, for example, TB infec-
feelings of depression, anxiety, and tion in prisoners is reported to be 200
hopelessness—common among pris- times more prevalent than in the gen-
oners—are exacerbated. In the United eral population, while in the United
States it has been found that for one- States the infection rate among pris-
third of incarcerated youth diagnosed oners ranges from three to 11 times
with depression, the onset of the that of the general population.41
depression occurred after they began TB originating in prisoners can—
their incarceration and that poor men- and has—been transmitted to prison
staff, visitors, external health care
workers, and the broader community.
Overcrowding, limited access to Outbreaks of multidrug-resistant TB
occurred in U.S. prisoners in the early
health care, violence, and other factors 1990s, spreading to patients in local
make prisons a perfect habitat for the hospitals, with mortality being as high
as 72 percent to 91 percent. Within
spread of infectious diseases. two years, the TB strain originating
from a New York state prison spread
to Florida, Nevada, Georgia, and
tal health and the conditions of deten- Colorado.42
tion together increase the likelihood In Russia TB is widespread in pris-
that incarcerated teens will engage in ons. In fact, in Russia, a history of
self-harm and suicide.39
incarceration in both pretrial deten-
tion centers and prison has become
Spreading Infectious Disease a key risk factor for TB.43 Unprotected
Prisoners typically come from the from the TB epidemic and other infec-
poorest sectors of society and conse- tious diseases, many pretrial detainees
quently already suffer from health end up spending months and even
inequalities. Incarceration commonly years awaiting their day in court in
aggravates existing health problems. overcrowded cells where, as one com-
Overcrowding, poor nutrition, lack of mentator put it, “a death sentence
exercise, limited access to health care, stalks people who have not yet been
violence, risky sexual practices, high convicted of a crime.”44
rates of intravenous drug use, sharing HIV rates in prison are also signif-
razor blades, and tattooing make pris- icantly above the national average in
ons a perfect habitat for the spread of many countries. In parts of Europe
infectious diseases.40 and the United States, up to 20 per-
Prison overcrowding facilitates the cent of inmates are HIV-positive. In
transmission of tuberculosis (TB) bac- prisons of Latin America and sub-
teria among inmates. Prisoners Saharan Africa disproportionately
around the world have consistently high rates of HIV infection have also

20 Open Society
Overview

been found.45 While it is undoubtedly five times at the magistrates’ court and
an extreme case, an account of the was refused bail on each occasion.
spread of HIV/AIDS in Lithuania is Finally, when the case was committed
indicative of how prisons are effective for trial, the police withdrew their
vectors for the spread of infectious objection and bail was granted. After
diseases. In 2002, 263 prisoners at a almost four weeks in pretrial deten-
prison in Lithuania tested positive for tion, the defendant no longer had a job
HIV. Yet before these tests, Lithuanian to return to, and the rent of the house
officials had counted just 300 cases of where he had lived for seven years was
HIV in the whole country, or less than in arrears. Three weeks later he and
0.01 percent of the population, a fig- his family were evicted. The defendant
ure that put Lithuania at the lowest
rate of infection in Europe.46
After almost four weeks in pretrial
Disrupting Families
detention, the defendant no longer
and Communities
The impact of a person’s detention
had a job to return to and his
on his or her family depends on a rent was in arrears.
number of factors. These include
the detainee’s employment status at
the time of detention, the size of the had to live separately from his wife
family—if any—dependent on the and child for three months, while his
detainee, and the ability of the extend- father-in-law was given hostel accom-
ed family and/or the state to take modation. The mental strain of the sit-
over the responsibilities to care for uation caused the defendant’s wife to
that family. suffer a nervous breakdown and so
A book on the English bail system, disturbed his son that he had to be
Bail or Custody, provides an example given psychiatric treatment. The
of the impact pretrial detention has on defendant found it difficult to get work
a detainee and his family, which is and could not obtain unemployment
symbolic of the far-reaching impact benefits because he was awaiting
detention can have.47 The example is trial and was therefore not, according
about a defendant who was a 29-year- to the local labor bureau, available
old truck driver living with his wife, for work. Four months after his arrest
the defendant was tried and acquitted.
his retired-father-in-law, and an eight-
Over a year later the defendant and
year-old son in a council house.
his wife still lived in temporary accom-
He was arrested and charged in con-
modation, the father-in-law was still
nection with a robbery that had
living in a hostel, and the defendant’s
allegedly been planned in his house.
son was still receiving psychiatric
The police successfully opposed bail.
treatment.
Altogether the defendant appeared

Justice Initiative 21
Pretrial Detention

The Impact of Detention on Children tainty in a child’s life. Children may


Little research has been undertaken to also react to the stigma of having
explore how parental detention affects a parent in detention with feelings
minor children and what its conse- of shame and a loss of self-esteem.
quences are for their development. These consequences are exacerbated
A few studies have found that children by the fact that many children of
of incarcerated parents are “more detained parents live in debilitating
likely to exhibit low self-esteem, circumstances to begin with, often
depression, emotional withdrawal coming from poor, marginalized
from friends and family, and inappro- communities.49
priate or disruptive behavior at home Children whose mothers are
and in school . . . [and are] at high risk detained have been identified as
“among the riskiest of the high risk
children.”50 In a review of the litera-
ture on children whose mothers are
Detention, like incarceration, detained or imprisoned, it was found
disproportionately affects individuals that such “children’s lives are greatly
disrupted when mothers are arrested,
and families living in poverty.
and most children show emotional
and behavioral problems . . . experi-
encing internalizing (fear, withdrawal,
depression, emotional disturbance)
for future delinquency and/or crimi- and externalizing (anger, fighting,
nal behavior.”48 stealing, substance abuse) problems,
A review of the literature on how as well as heightened rates of school
children experience the loss of a par- failure and eventual criminal activity
ent provides some insight on how chil- and incarceration.”51
dren may experience the detention of a
parent, especially if the detention is for
The Impact on Family Economy,
an extended period of time and results
in a significant loss of contact between Especially in Poor Communities
the parent and child. The potential Detention, like incarceration, dispro-
deleterious effects on such children portionately affects individuals and
are numerous. Children experience families living in poverty. When an
the loss of a parent—irrespective of income-producing parent is detained,
the cause—as a traumatic event. the family must adjust to the loss of
Depending on the child’s age, this may that income. The impact can be espe-
lead to a child’s inability to form cially severe in poor, developing coun-
attachments with others, anger, and tries where the state does not provide
antisocial behavior. The trauma of reliable financial assistance to the
the loss of a parent can stunt a child’s indigent and where it is not unusual
development, especially as detention for one breadwinner to financially
can bring about a great deal of uncer- support an extended family network.

22 Open Society
Overview

Thus, while there are about two loss of the imprisoned parent’s
dependents per working person in the income; legal fees associated with
developed world, in the developing legal defense and appeals; and the
world the ratio is about one to six.52 In costs of maintaining the household,
some particularly impoverished rural maintaining contact during imprison-
areas of Africa, dependency ratios in ment, and providing personal items
excess of 1:200 have been reported.53 for the prisoner.”55
A hypothetical example from a Prolonged periods of detention
poor, rural community in the develop- place considerable strain on intimate
ing world reveals the medium- to long- relationships. In a U.S. study of sen-
term economic shocks within a house-
hold as a result of the detention of one
of its members. After the male head of
a household is arrested and detained, Detainees infected with a disease while
the family must sell its maize-milling
incarcerated pose a public health risk
machine to obtain cash for his legal
fees, bail, and/or money to bribe him to the communities to which they return.
out of detention. As the milling
machine brought steady income into
the household, the sale of working
capital means that the family soon tenced offenders, half of married
has no money to hire labor or buy male respondents reported that their
inputs for their beetroot plots. primary source of emotional support
Beetroot production ceases, and so was their wife.56 The conclusion that
does income from the crops. The new “it is not uncommon for marital
owner of the milling machine moves it relationships to end in divorce during
to a distant location. The absence of a prison term” is likely to apply,
the machine is felt by other house- albeit to a somewhat lesser extent, to
holds in the village, and women go married persons who spend long peri-
ods of time in pretrial detention.57
back to pounding maize, which
In England and Wales, almost half
increases their workload.54
(48 percent) of all pretrial detainees
It stands to reason that a family
report losing contact with their fami-
experiences financial losses as a result
lies while in detention.58
of the detention of one of its members.
This is especially the case when
the period of detention is long, fami- The Impact on Communities
lies maintain regular contact with and Public Health
their detained member, and the Once released from prison, detainees
detained family member functioned infected with a communicable disease
in a responsible parenting role prior while incarcerated pose a public health
to the detention. “Families face the risk to the communities to which they

Justice Initiative 23
Pretrial Detention

return. The effect of this on poor In poor communities in the devel-


households can be devastating and oping world, where many rely on
may impoverish households reliant subsistence agriculture for their
on the good health and labor of each survival, the serious illness and inca-
of their members. The excessive use pacitation of even one or two adult
of pretrial detention in marginalized household members can bring about a
communities may also have a broader spiral of poverty as the household is
debilitating effect on the social fabric, forced to sell off the few capital assets
reducing social capital. it may possess in an effort to obtain
medication and professional medical
help for the ill.
A U.S. study has found that high
rates of incarceration including, to a
Little research has been undertaken somewhat lesser extent, pretrial deten-
tion can have the “unintended conse-
to investigate the broader social quence of destabilizing communities
impact of excessive pretrial detention and contributing to adverse health
outcomes.”61 According to the study,
on communities and society as a whole. rates of sexually transmitted infections
(STIs) and teenage pregnancies
consistently increased with increasing
Detrimental Health Effects imprisonment rates. Moreover, the
Detainees infected with HIV/AIDS, population released from incarcera-
tuberculosis, or other communicable tion presents an above-average risk
diseases are likely to pass these of infecting community members
on to their families and communities with an STI.62
after their release. Given that most
persons incarcerated—especially Detrimental Social Effects
those who have not been convicted— The U.S. study cited above concludes
have a high likelihood of eventually that removals from, and releases
being released, the health of detainees to, communities disrupt relationships
is a fundamental public health con- and weaken social norms, in that
cern. As detailed above, prisons have maintenance of these norms is
emerged as structural factors fueling based on long-term relationships.
outbreaks of HIV and TB in Eastern In communities where neighbors
Europe and Russia.59 In South Africa, know one another, these individuals
where an estimated 40 percent of tend to be involved in each other’s
inmates are reported to be HIV lives and the lives of their children,
positive, some 25,000 prisoners are offering advice and support. To the
released every month. Many of these extent that parenting affects the
are former pretrial detainees who have sexual behaviors of teenagers, juve-
been granted bail, are acquitted, or niles with a parent who is absent as
have had their charges withdrawn.60 a result of being incarcerated are

24 Open Society
Overview

more at risk of behaviors that result the presumption of innocence. That


in a sexually transmitted infection is, the right of any defendant to be pre-
and/or pregnancy.63 sumed innocent of the allegations
Little research has been undertak- against him until found guilty by a
en to investigate the broader social competent court.
impact of excessive pretrial detention In support of this principle, most
on communities and society as a countries have ratified international
whole. It is likely, however, that the human rights instruments that
nature of the impact is similar to allow the use of pretrial detention only
that of mass incarceration as seen in under carefully defined circum-
countries such as the United States,
Russia, Belarus, Ukraine, or South
Africa (all countries with incarceration International human rights
rates in excess of 330 per 100,000 of
the general population). instruments allow pretrial
detention only under
When most families in a neighborhood
lose fathers to prison, the distortion of carefully defined circumstances.
family structure affects relationship
norms between men and women as
well as between parents and children, stances. Many countries have, more-
reshaping family and community across over, embedded the substance of such
generations. And, while families in poor international instruments into domes-
neighborhoods have traditionally been tic legislation. Yet, a significant num-
able to employ extended networks of ber of criminal justice systems rou-
kin and friends to weather hard times,
tinely contravene international instru-
incarceration strains these sustaining
ments and their own domestic pretrial
relationships, diminishing people’s
detention laws and regulations.
ability to survive material and emotional
difficulties. As a result, incarceration is In theory, judicial officers’ pretrial
producing a deep social transformation release/detention decisions are ration-
in the families and communities of al because they are based upon
prisoners—families and communities, an acquired expertise about risk
it should be noted, that are dispropor- factors as they relate to individual
tionately poor.64 defendants. The theory has, however,
not been substantiated by studies
of bail decisions. In fact, in some risk-
The Impact on the Rule of Law of-flight studies, similarly situated
Protecting the restrictions on the defendants have received significantly
use of pretrial detention, as well as different bail decisions. In some
the process leading up to a pretrial risk-of-reoffending studies, judicial
detention determination, is vital to officers accurately identified potential
preserve one of the cornerstones of a reoffending defendants in only 5 per-
rights-based criminal justice system: cent to 30 percent of the cases.65

Justice Initiative 25
Pretrial Detention

In Harris County, Texas, a report as a sanction or repressive measure:


revealed that the excessive use of it serves as a means of coercing a
financial bail resulted in the detention confession or as a control of homeless
of a large number of defendants persons.
who were charged with minor crimes
and who posed a low risk for abscond- In practice this leads to a blurring of
ing or committing a crime if released the boundaries between pre-trial deten-
awaiting trial. In 2003, some 8,700 tion and the sentence of imprisonment.
misdemeanor defendants were In other words, the abuse of pre-trial
detention which can also be observed
detained despite being classified
in European countries, whereby a period
as “low risk” on a Pretrial Services
of pre-trial detention is regarded as a
short term of imprisonment served in
anticipation, has developed into a strate-
Pretrial detention is often used as a gy which is used systematically by the
criminal justice system. Where pre-trial
sanction or repressive measure: it serves
detention is used, overtly or covertly, for
as a means of coercing a confession. such purposes it seems fairly clear that
the “presumption of innocence”—the
idea that a person should be considered
Bail Classification score and despite innocent until proven guilty—is being
having no prior convictions.66 breached.68
In a survey of detention decisions
between August 2004 and July 2007 In a country visit to the Central
in the Mexican city of Monterrey, African Republic in 2000, the Special
it was found that virtually all detained Rapporteur on Prisons and
defendants resided in metropolitan Conditions of Detention in Africa
Monterrey with many being found that while detention immediate-
employed. It was also found that half ly after arrest by the police is statutori-
of the defendants were over 30 years ly limited to 48 hours, it can “last
of age (past the age when persons are for six months without it being taken
disproportionately likely to commit into account in sentencing.”69 In The
violent crimes). And, two-thirds of the Gambia, the constitution limits the
defendants were first time offenders.67 time period between arrest and a
On the face of it, these defendants defendant’s court appearance to 72
posed a low risk of flight, offending hours. At the country’s police head-
while awaiting trial, or interfering quarters in Banjul, however, the spe-
with the administration of justice. cial rapporteur did not find a single
arrestee who had been brought before
Debasing the Presumption of Innocence a court within the 72-hour time limit.
In fact, some arrestees claimed to have
A multi-country study of pretrial
been in police detention for a number
detention law and practices suggests
of months without being remanded
that at times pretrial detention is used
by a judicial officer.70

26 Open Society
Overview

In some countries where pretrial weeks or months in a prison cell;


detention is not used sparingly, the detained defendant is less likely
as required by international norms, to have character witnesses to use in
“the use of force, sometimes amount- mitigation of sentence than the
ing to torture, by investigating author- defendant released awaiting trial;
ities such as the police is common and a detained defendant may have
in order to extract confessions.”71 lost his job or home and conse-
quently may not be considered as
The excessive use of pretrial deten-
suitable for a suspended sentence,
tion also undermines the presumption probation, or a fine.75 By contrast,
of innocence in other, less explicit,
ways. If a defendant is ordered held
in custody, or if money bail is set at an
amount the defendant cannot meet, There is empirical evidence showing that
several significant consequences may persons in pretrial detention are more like-
result:
ly to be found guilty than defendants with
g There is both British and U.S.
empirical evidence showing that similar backgrounds and charges who
persons in pretrial detention are have been released awaiting trial.
more likely to be found guilty of
the offense charged compared to
defendants with similar back- released suspects can be in touch
grounds and charges who have been with a lawyer relatively easily and
released awaiting trial.72 The defen- can assist in developing a defense to
dant who remains in prison may specific charges. They can continue
have difficulty participating in his working, paying taxes, and support-
own defense. An incarcerated ing their families. They can also
defendant cannot look for friendly take steps to reduce the severity of
witnesses and may have limited a sentence if they ultimately are
contact with a defense lawyer. found guilty by, for example, getting
or keeping a job, maintaining or
g Defendants detained prior to trial reestablishing family ties, and devel-
are more likely to be sentenced to oping a record of complying with
prison than are defendants who conditions of release.76
are released prior to trial.73 That is,
the experience of pretrial detention g Defendants held in detention often
is known to undermine—through have a heightened incentive to plead
loss of employment, accommoda- guilty, even though they may have a
tion, family and other community valid defense, simply to gain their
ties—defendants’ capacities to pres- freedom—particularly if they can
ent themselves in a light favorable receive a sentence of time served or
to receiving a noncustodial sen- receive credit for their jail time
tence.74 A defendant’s appearance against a relatively short prison
and demeanor in court may not sentence. A British study found
inspire confidence if he has spent a strong correlation between a

Justice Initiative 27
Pretrial Detention

defendant’s pretrial detention status acquitted. Moreover, about half of all


and the likelihood of a guilty plea.77 pretrial detainees receive a noncusto-
There may be a number of reasons dial sentence (50 percent for males
for this phenomenon. The influence and 59 percent for females in 2002).79
of prison wardens and other In New Zealand, too, about a fifth
detainees may help to convince a of all persons who spend some time in
defendant that he would regain his pretrial detention end up being acquit-
freedom more quickly and perhaps ted of the charges against them, while
be treated more lightly if he were
half receive a noncustodial sentence.80
prepared to plead guilty. Moreover,
Moreover, where custodial sentences
long periods of idleness, the tense-
are imposed, there is some evidence
to suggest that “imprisonment
appears at least in some times and
places to be used in order to ‘cover’
Poor people do not have pre-trial detention: that is, pre-trial
access to private counsel, and detention is retrospectively justified
by imposing a prison sentence.”81
many developing countries lack
a comprehensive legal aid system. Discrimination against the Poor
In many poor countries the formal
criminal justice system often fails to
provide justice and security to the indi-
ness and uncertainty of the situa-
gent or protect their rights. According
tion, and the relative inaccessibility
of reliable legal advice may also to Vivien Stern of the International
be contributing factors. It does not Centre for Prison Studies, justice
take much to break the spirit of a systems in poor countries exacerbate
man who has been kept in a cell the poverty of the destitute “by bearing
most of the day, not knowing what down most heavily on them and
is going to happen to him. The find- subjecting them to gross injustices,
ing of guilt and the passing of a sen- whilst not providing them with the
tence do at least bring an element of protection they need.”82
certainty into the situation.78 Pretrial detention regimes can be
The loss of liberty, the indignities, particularly discriminatory against the
and the other repercussions pretrial indigent. Poor people do not have
detainees suffer are particularly egre- access to private counsel, and many
gious in light of the fact that a signifi- developing countries lack a compre-
cant number of pretrial detainees hensive legal aid system for defen-
are either acquitted of the charges dants too poor to afford their own
against them or receive a noncustodial lawyers. In countries where a rudi-
sentence. In England and Wales, mentary legal aid system operates,
for example, approximately one out legal counsel is often provided only at
of every five pretrial detainees is the trial stage of legal proceedings,
long after a decision has been made

28 Open Society
Overview

to detain a defendant awaiting trial. prison system was that “prisoners


A United Nations Office on Drugs cannot pay bail or provide any sure-
and Crime (UNODC) study of justice ty.”87 In South Africa about a third of
system integrity and capacity in three all awaiting trial prisoners who are
Nigerian states in 2002 found that 38 granted bail are unable to afford the
percent of awaiting trial prisoners had amount set.88
retained a lawyer and that only around Other conditions pose similar
10 percent of the respondents had problems: for example, defendants are
been able to pay their lawyers’ fees often released awaiting trial on the
themselves (with the remainder being condition that they report to a police
supported by their family or friends,
or the government).83 Unlike Nigeria,
which has an estimated 28,000
lawyers,84 large parts of Africa face an In South Africa about a third of
extreme shortage of legal profession-
als, so that many detainees—especial- all awaiting trial prisoners who are
ly those in rural areas—are unable granted bail are unable to afford
to obtain professional legal services.
the amount set.
For example, in 2004, the ratio of
practicing lawyers to the general popu-
lation was 300 to 11 million in Malawi,
400 to 26 million in Uganda, and 400
to 35 million in Tanzania.85 Moreover, station on a regular basis. Individuals
lawyers in many developing countries without access to private transport, too
are concentrated in urban centers, poor to afford the regular use of public
transport, or who live in a rural area
leaving the rural poor with virtually no
far from the nearest police station,
access to professional legal representa-
find it difficult to meet such a condi-
tion. In Sierra Leone, for example, 95
tion. In a survey of rural inhabitants in
percent of the country’s 125 lawyers
South Africa conducted in the late
(serving a population of five million)
1990s, half the respondents indicated
are based in the capital, Freetown.86
that they were between 11 and 30 kilo-
In cases where pretrial release is meters from the nearest police station,
granted with conditions, it is usually with 12 percent being more than 30
the indigent who have the greatest kilometers away. Just six percent of
difficulty complying with such condi- the respondents indicated they were
tions. This is especially true when the able to drive themselves in private
condition is a monetary bail bond. transport to the nearest police station,
In many countries defendants are and only 10 percent said they could
granted release awaiting trial provided use a commuter bus because of the
they deposit a sum of money with limited availability of public transport
the court. In Malawi, for example, a in rural areas.89
key reason for overcrowding of the

Justice Initiative 29
Pretrial Detention

Fostering Corruption remand cells in Bangui in the Central


In criminal justice systems where African Republic, the special rappor-
corruption is pervasive, defendants teur found that “police demanded
are likely to be released awaiting trial money [ from the detainees] before
only if they have politically powerful release.”92 In a 2001 report on prisons
allies or the means to bribe the arrest- in Malawi, the special rapporteur
ing officer, the prosecutor, or the judi- found that “cases of ill-treatment and
cial officer dealing with their applica- corruption... do not seem to be isolat-
tion for pretrial release. For example, ed cases.”93 In Benin, a prisoner told
the aforementioned 2002 UNODC the special rapporteur: “The main
study found that, on average, more problem is the judiciary. [The act of ]
than 70 percent of lawyers surveyed prosecution in Abomey [a city in
in three Nigerian states had paid Benin] has become an avenue for get-
bribes in order to expedite court pro- ting money. If you do not have money,
ceedings, including the implementa- your case is never examined.”94
tion of bail orders, the commence-
ment of trial, and speeding up trial The Impact on Good Governance
proceedings. While most of these and Development
bribes were paid to court staff and The negative impact of corruption on
police, a fifth of respondents stated investment has been well document-
they also had to make such payments ed. Reports by the United Nations
to judges. In systems where judges do Development Programme (UNDP)
not have to provide transparent and demonstrate empirically the negative
defensible reasons why a defendant is impact of corruption on growth.95 The
being detained pending trial, chances World Bank agrees that, by distorting
are higher that some judges will the rule of law and weakening the
accept bribes to release someone from institutional foundations of economic
pretrial custody. More than 40 percent growth, corruption is the single great-
of court users surveyed experienced est obstacle to economic and social
corruption when seeking access to the development.96 The harmful effects of
justice system, with a large proportion corruption are especially severe on the
specifically stating that they paid a poor, who are hardest hit by economic
bribe to obtain bail.90 According to the decline, are most reliant on the provi-
UNODC, “the assessment revealed sion of public services, and are least
that in particular the poor and unedu- capable of paying the extra costs asso-
cated, as well as ethnic minorities are ciated with bribery and fraud.97 The
more likely to be confronted with cor- International Monetary Fund, in turn,
ruption… and to experience delays.”91 notes “there is a close association
Country reports from the office of between corruption and slow growth,
the Special Rapporteur on Prisons and as well as between corruption and
Conditions of Detention in Africa are political instability. . .”98
full of examples of corrupt practices The excessive use of pretrial deten-
in respect of bail. In a 2000 visit to tion can weaken governance in a num-

30 Open Society
Overview

Figure 4: Proportion of pretrial detainees and sentenced prisoners,


by Human Development Index ranking, 2006

High 77 % 23 %

Medium 66 % 34 %

Low 58 % 42 %

0 20 % 40 % 60 % 80 % 100 %

Sentenced PTD

Source: World Prison Population List, International Centre for Prison Studies; UNDP.

ber of ways. As discussed above, Governance and Detention


unwarranted or discriminatory pretri- The proportion of pretrial detainees
al detention undermines the rule of also varies by level of economic and
law and honest and accountable gov- human development. Countries with
ernment by fostering corruption. a higher level of human development
Pretrial detention can also weaken have, on average, a lower proportion
good governance by increasing— of their total prison population in
rather than reducing—crime and pretrial detention. As Figure 4 above
by consuming scarce resources that shows, countries with a high score in
the UNDP Human Development
could, from a development perspec-
Index (HDI) tend to have a lower
tive, be spent more productively on
proportion of prisoners in pretrial
education, health care, or infrastruc-
detention.99 A similar study conducted
ture improvement. Moreover, while in the late 1990s, whereby countries
pretrial detention can in certain cir- were classified as “industrial,” “devel-
cumstances impede aspects of good oping,” and “less developed” reveals a
governance, the reverse can hold similar pattern. Industrial countries
true as well. That is, badly governed had, on average, a relatively low pro-
states with poor systems of public portion of prisoners who were pretrial
administration tend to have prisons detainees; less developed countries
that are disproportionately filled with had a high proportion.100
pretrial detainees.

Justice Initiative 31
Pretrial Detention

It is possible to proffer a number conditions that existed in various


of explanations for the inverse correla- prisons, it was found that prisoners
tion between development and the faced “overwhelming positive rein-
ratio of pretrial detainees to sentenced forcement” by the peer group for
prisoners. Richer, more developed a variety of antisocial behaviors, so
countries have the resources to much so that even staff interacted with
employ sufficient numbers of police the inmates in a way that promoted
officers, prosecutors, and judges to a criminal environment.102
undertake criminal investigations and As is the case with sentenced pris-
trials relatively speedily. Such coun- oners, pretrial detainees invariably
tries also have the skills and resources face similar crimogenic influences,
to develop credible and effective alter- especially if detained for extended
natives to pretrial detention. Moreover, periods under crowded and poor con-
wealthier countries with good institu- ditions. The risk is greater in places
tions of higher learning have a higher where sentenced and unsentenced
density of lawyers who can provide prisoners are not separated, or where
legal assistance to arrestees and there- pretrial detainees charged with minor
by minimize the number of persons offenses are incarcerated together with
who are placed in pretrial detention detainees suspected of having com-
on trivial or unfounded grounds. mitted serious crimes—not uncom-
mon scenarios in many overcrowded
prison systems around the world.
Promoting Crime
A U.S. study has shown that once
The excessive and arbitrary use of
juveniles are detained awaiting trial,
pretrial detention may bring about even when controlling for prior offens-
conditions that increase the number es, they are more likely than nonde-
of potential offenders in a society. tained juveniles charged with a crime
There is significant evidence to show to engage in future delinquent behav-
that the prison environment fosters ior, with the “detention experience
criminal behavior. That is, an unin- increasing the odds that the youth
tended by-product of prisons is that will recidivate.”103 Moreover, juvenile
they serve as schools or breeding detention interrupts young people’s
grounds for crime.101 Prisons psycho- education, making it more difficult for
logically harm inmates, making their some to return to school and find
adjustment to society upon release employment. Indeed, “economists
more difficult, with one likely conse- have shown that the process of incar-
quence being a return to crime. cerating youth will reduce their future
Much of the literature on the effects of earnings and their ability to remain
incarceration argues that the confined in the workforce, and could change
spaces of prisons reinforce certain formerly detained youth into less sta-
forms of negative behavior. For exam- ble employees.”104 The failure of
ple, by examining the social learning detained juveniles to return to school

32 Open Society
Overview

affects public safety as, according to such as South Africa, this entails a
the U.S. Department of Education, significant opportunity cost in terms
school dropouts are three and a half of state spending forgone elsewhere.
times more likely than high school For example, an additional R10 billion
graduates to be arrested.105 would permit the South African treas-
ury to more than double its health-
Opportunity Cost of Pretrial Detention related expenditure or double its
expenditure on social development
Detaining people is an expensive
and the provision of housing.108
undertaking for most states, especially
for developing countries. For poor In 2004, the annual cost to the
countries, where state budgets are U.S. federal government of incarcerat-
rarely balanced and state funding to
meet even the basic needs of all citi-
zens is inadequate, expenditure on
States that spend large sums of money
incarcerating pretrial detainees repre- on incarceration in an effort to promote
sents a stark opportunity cost. Every
public security could arguably use some
bit of state revenue spent on incarcer-
ation results in potentially less money of that money more effectively on crime
for crucial social services, health, prevention activities.
housing, and education. Moreover,
states that spend large sums of money
on incarceration in an effort to pro-
ing one person was just over
mote public security could arguably
US$23,000 per year.109 The cost of
use some of that money more effec- keeping one juvenile in a state-level
tively on crime prevention activities.106 pretrial detention center in the United
Alternatively, money spent on pretrial States is even higher, ranging from
detention could also be redirected to US$32,000 to US$65,000 per year.110
state functions that directly promote In Australia, the state spends approxi-
public security, such as employing mately AU$60,000 per prisoner
more police officers or purchasing per year.111
equipment that allows the police
According to a 2003 European
to function more effectively, such as Commission investigation, the aver-
vehicles or automated fingerprint age monthly cost of incarcerating
identification systems. pretrial detainees in 10 European
The total budget of the South Union member states for which data
African Department of Correctional are available was e3,079 per month.112
Services for the 2005–06 financial Extrapolated over Europe’s 376,000
year amounts to R9.2 billion and pretrial detainees in 2006, this comes
is estimated to top R10 billion per to an annual cost of e13.9 billion.
annum thereafter.107 Even for a rela- There were 104 countries in the world
tively prosperous African country

Justice Initiative 33
Pretrial Detention

Figure 5: European expenditure on pretrial detention compared to selected


global humanitarian, health, and governance expenditures

Annual PTD costs to


18.3
European States (2005)

Cost of feeding 90m people 9.5


for one year (2003)

Global Fund disburse- 3.3


ments (2002-2006)

WHO biennial budget


3.3
(2006-2007)

UN budget (2006) 1.9

0 4 8 12 16 20

US $ billions

Sources: European Commission; World Food Organization; Global Fund to Fight AIDS, Tuberculosis
and Malaria; WHO; UN.

with a Gross Domestic Product (GDP) 2006–07 budget of the World Health
less than this in 2005, according to Organization (WHO), and the UN’s
the World Bank.113 By reducing their 2006 budget (Figure 5). Even where
estimated annual expenditure on moneys saved from avoiding excessive
pretrial detention by just over 10 pretrial detention will not translate
percent, European countries could into additional expenditures for AIDS
save enough money effectively to prevention, housing, or other social
double the annual budget of the programs, savings in this area could,
United Nations.114 By reducing their at least, translate into lower taxation
pretrial detention expenditure by just rates for the benefit of all citizens.
under 20 percent in 2003, they could
have saved enough money to double
Mutually Reinforcing
the worldwide disbursements of
the Global Fund to Fight AIDS, Consequences of Detention
Tuberculosis and Malaria between The consequences of pretrial deten-
2002 and 2006.115 The estimated 2005 tion are many. This paper has sought
expenditure on pretrial detention by to categorize these consequences to
European states is slightly more than show how the collateral damage of
the combined cost to the World Food pretrial detention affects not only
Organization to feed 90 million peo- the detainees themselves but also their
ple for one year, the Global Fund’s families, communities, and broader
2002–06 disbursements, the biennial society, as well as the rule of law and

34 Open Society
Overview

good governance. Such categorization further impoverishes particularly poor


makes for easier reading, but it under- and marginalized communities.
states the pervasiveness of the general- Some of the more far-reaching
ly debilitating impact of excessive opportunity costs of pretrial detention
use of pretrial detention. The harm are also difficult to measure and con-
done by pretrial detention in all these sequently fail to receive the attention
categories together is greater than the they deserve from policymakers.
sum of their parts. This is because By reducing the number of pretrial
these categories are not mutually detainees by a few percentage points
exclusive but overlap and merge into most countries would save enough
one another. money to build new schools or pay for
The detainee infected with TB or
HIV/AIDS while incarcerated has
to live—or die—with a debilitating ill-
ness. Upon release from detention By reducing the number of pretrial
that detainee places family, friends, detainees, most countries would save
and acquaintances at similar risk, and
enough money to build new schools.
these persons in turn expose other
members in the community. In poor
countries, detainees infected with
a lifelong and debilitating illness risk
the tertiary education of numerous
impoverishing the households to
young people otherwise too poor to
which they return. In developed coun-
afford the cost of a university educa-
tries, health-related costs are passed tion. A more educated workforce—
on to the state. especially in developing countries
Detaining a large group of people where teachers, engineers, and doc-
is not only costly for the state (and, tors are in short supply—is bound to
thereby, the taxpayer) but has negative generate a better return on such an
financial and social repercussions investment from an economic, social,
for society at large. Pretrial detainees or political perspective than keeping
are unable to earn an income, pay more people in pretrial detention.
taxes, and provide food or other neces- Other consequences of pretrial
sities for their families. In many poor detention are almost impossible to
countries, detainees’ families suffer quantify yet are acutely debilitating
a double burden. Not only do they to both citizens and the institutions
have to forgo the support they may of the state. As discussed above, in
have received from the detainee, they a number of countries pretrial deten-
often have to provide food, clothing, tion is abused as a mechanism to
and other necessities of life to the extort bribes from detainees and their
detainee because the prison system families. In other places, detention
fails to do so. The widespread use abets corruption as arrestees seek to
of pretrial detention consequently bribe poorly paid police officers and

Justice Initiative 35
Pretrial Detention

prosecutors not to request their deten- human rights lawyers and activists.
tion at the first court hearing after their As pointed out above, however, the
arrest. Corruption destroys citizen consequences of a dysfunctional and
trust in government and undermines unjust pretrial detention regime
government legitimacy. Corruption should be of concern to everyone and
also exacerbates poverty, deters foreign not only this small group of people.
investment, stifles economic growth This paper has sought to demonstrate
and sustainable development, and that the functioning of a country’s
undermines legal and judicial systems. pretrial detention system is of relevance
Moreover, by corrupting the adminis- to all persons interested in sound
tration of justice and undermining the governance, good health, public safety,
rule of law, the irrational and excessive and strong families and communities.
application of pretrial detention weak- The pervasive impact and perverse
ens governance overall.116 consequences of pretrial detention are
The reform of pretrial detention— such that its reform should not be the
including the extent of its use, the purview of a few professional groups
manner and criteria governing its and criminal justice reformers. The
application, and the conditions of time has come for a broader audience
detention—remains an important of experts and interested persons to
goal for many criminal justice policy engage in this important task.
makers and practitioners, as well as

Notes
Martin Schönteich is senior legal officer for National Criminal Justice Reform at the Open Society
Justice Initiative.The author acknowledges the assistance of Denise Tomasini-Joshi and Todd
Foglesong for reviewing and commenting on an earlier draft of this paper, and of Peter Rowland
for helping with the collection and cross-tabulation of some of the statistical data used in this paper.

1. Frieder Dünkel and Jon Vagg, eds., Waiting for Trial: International Perspectives on the Use of
Pre-Trial Detention and the Rights and Living Conditions of Prisoners Waiting for Trial (Freiburg:
Max Planck Institute, 1994), XIII. See also Punishment First Verdict Later: A Review of Conditions
for Remand Prisoners in Scotland at the End of the 20th Century (Edinburgh: Scottish Prison Service,
2000), para. 1.19, www.scotland.gov.uk/hmip/docs/pfvl-00.asp, accessed January 8, 2007.

2. “Fact Sheet No. 26” (Geneva: Office of the UN High Commissioner for Human Rights,
Working Group on Arbitrary Detention), www.unhchr.ch/html/menu6/2/fs26.htm#A2, accessed
May 22, 2007.

3. According to Penal Reform International, “prisoners in pre-trial detention, or on remand, are


those who have been detained without a sentence and are awaiting legal proceedings. They are
also known as untried or unconvicted prisoners.” See Pre-trial Detention (London: Penal Reform
International), www.penalreform.org/pre-trial-detention.html, accessed February 20, 2007.

4. Various international instruments make a distinction between unsentenced and sentenced


prisoners, although the line is typically drawn at the point of conviction rather than sentence.
The International Declaration of Human Rights states that all “unconvicted” people in custody
“…shall, save in exceptional circumstances, be segregated from convicted persons and shall be
subject to separate treatment appropriate to their status as unconvicted persons” (Article 10 of
the Covenant). European Prison Rule 11(3) makes a distinction between untried, convicted, and
sentenced prisoners. It also states that “in principle, untried prisoners shall be detained separately.”

36 Open Society
Case Studies

5. International human rights treaties distinguish between people who have been found guilty,
convicted by a court of law, and sentenced to prison and those who have not. Prisoners awaiting
trial or the outcome of their trial are regarded differently because the law sees them as innocent
until found guilty. International standards mandate the widest possible use of alternatives to
pretrial detention, with pretrial detention being used as a means of last resort in criminal
proceedings.

6. The Council of Europe classifies prisoners other than those who have received a “final
sentence” into three sub-categories: (i) untried prisoners in respect of whom no court decision has
been reached; (ii) prisoners convicted but not sentenced; and (iii) sentenced prisoners who have
appealed against their sentence or who are within the statutory time limit for doing so. See
Marcelo F. Aebi, Council of Europe Annual Penal Statistics (SPACE I), Survey 2004 (Strasbourg,
November 7, 2005), 30.

7. See also, Samuel Deltenre and Eric Maes, “Pre-trial detention and the overcrowding of prisons
in Belgium. Results from a simulation study into the possible effects of limiting the length of pre-
trial detention,” European Journal of Crime, Criminal Law and Criminal Justice 12, No. 4 (2004), 8.
The authors define pretrial detention as the time before a “definitive conviction… the time before
a judgment against which appeal is no longer possible.”

8. While the period between arrest and the first court appearance tends to be short—usually 24 to
72 hours—the first few hours in police custody can be crucial to subsequent decisions concerning
charges, pretrial detention, and the outcome of the trial. In this period the suspect is documented,
police interrogation begins, and confessions and admissions may be obtained. Moreover, in some
countries the period between arrest and the first court appearance may be lengthy. Indications
of a problematic practice of arrest and “police detention” in many European countries are given
by the reports of the Committee for the Prevention of Torture and Inhuman or Degrading
Punishment of the Council of Europe published since 1990. See also Jon Vagg and Frieder
Dünkel, “Conclusion,” in Dünkel and Vagg, Waiting for Trial (Max Planck Institute, 1994),
919–926.

9. Like most statistical data, criminal justice statistical data need to be treated with caution.
These data are only as reliable as the people who collect them and as accurate as the systems that
generate them. This is also the case with prison-related data. Some countries manually collate
data on prisoner numbers and related information from every prison into one central database.
Others collect data at irregular intervals, while some do not consistently gather any quantitative
data at all. Moreover, pretrial detention statistics do not, as a rule, include persons who have been
remanded into custody but, because of insufficient prison space, are detained in police holding
cells. Criminal suspects are usually held in police cells only for 48 or 72 hours until their first
court appearance and thereafter transferred to a prison or detention center. Some developing
countries accommodate a considerable number of pretrial detainees in police cells because of a
lack of prison space or because the nearest prison is too far removed from the courthouse to
justify transporting a detainee between prison and court until the trial has come to an end.
Consequently, counting only the number of pretrial detainees in a prison system may
substantially undercount their real number in certain places.

10. Roy Walmsley, World Prison Population List, 6th edition (London, International Centre for
Prison Studies [ICPS], 2007); World Prison Brief Online (ICPS), www.kcl.ac.uk/depsta/rel/icps/
worldbrief. With the exception of China, all the data used in this paper (for 178 independent
countries and dependent territories) have been taken directly from these sources. China does not
publish its pretrial detention data. Based on discussions with Chinese lawyers and human rights
specialists the author estimates that China had a pretrial detention population of 800,000 in
2006—approximately 34 percent of the total prison population.

11. Generally countries with high rates of pretrial detention also have high overall incarceration
rates. For example, the three countries with the highest overall incarceration rates in Africa
(South Africa, Botswana, and Swaziland), are also among the top four countries with the highest
pretrial detention rate. The United States and Russia—both large countries with unusually high
incarceration rates—have pretrial detention rates in excess of 100 per 100,000 of the general
population, three to four times the global average. This stands to reason. Criminal justice systems

Justice Initiative 37
Pretrial Detention

that fail to make use of alternatives to pretrial detention are also unlikely to make much use of
alternatives to imprisonment as a sentencing option. Punitive criminal justice policies are likely to
favor pretrial detention over release on bail, and imprisonment over a noncustodial sentence.

12. World Prison Brief Online (ICPS), www.kcl.ac.uk/depsta/rel/icps/worldbrief/world_brief.html,


accessed February 5, 2007.

13. List of countries by population, http://en.wikipedia.org/wiki/List_of_countries_by_population,


accessed February 12, 2007.

14. Data obtained from Marcelo F. Aebi, Council of Europe Annual Penal Statistics (SPACE I),
Survey 2003 (Strasbourg, September 29, 2004), 20; Marcelo F. Aebi, Council of Europe Annual
Penal Statistics (SPACE I), Survey 2004 (Strasbourg, November 7, 2005), 44.

15. Detention Needs Assessment and Baseline Report (Washington, D.C.: Department of Justice,
Office of the Federal Detention Trustee, undated), 5–6.

16. The annual admission figures do not relate to the number of individuals but to the number
of admissions or entries. That is, the same individual may, for example, enter a pretrial detention
center more than once in the same year for different cases. It is probable, however, that over a
one-year period the vast majority of admissions comprise distinct individuals. For a detailed
explanation of what counts as an admission see Aebi, Council of Europe Annual Penal Statistics
(SPACE I), Survey 2003, 5.

17. Accompanying document to the Proposal for a Council Framework Decision on the European
supervision order in pre-trial procedures between Member States of the European Union,
SEC(2006)1079 (Brussels: European Commission, August 29, 2006), 10–11.

18. Dirk van Zyl Smit, “Report of the Rapporteur General,” in Prison Conditions in Africa: Report of
a Pan-African Seminar, Kampala, September 19–21, 1996 (Paris: Penal Reform International[PRI],
1997).

19. Excessive Pretrial Detention (Human Rights Watch [HRW] Prison Project), http://hrw.org/advo-
cacy/prisons/pretrial.htm, accessed February 12, 2007.

20. Calculated on the conservative assumption that the pyramid builders worked an average of
eight hours a day. See Stuart Wier, “Recent Pyramid Calculations: Manpower Estimates for
Khufu’s Pyramid,” August 1998, http://home.earthlink.net/~swier/pyramid.html, accessed
February 15, 2007.

21. Empire State Building Official Internet Site,


www.esbnyc.com/tourism/tourism_facts.cfm?CFID=46899, accessed February 15, 2007.

22. Mike Octigan, “Pre-Trial Services: Someone Else’s Agenda?” Probation Journal 49, No. 1
(March 2002), 19.

23. Punishment First Verdict Later (Scottish Prison Service, 2000), Annexure 5, para. 21,
www.scotland.gov.uk/hmip/docs/pfvl-00.asp, accessed January 8, 2007.

24. Vivien Stern, Alternatives to prison in developing countries (ICPS and PRI, 1999), 10; see also
Michael Wines, “The Forgotten of Africa, Rotting Without Trial in Vile Jails,” New York Times,
November 6, 2005.

25. Dünkel and Vagg, Waiting for Trial (Max Planck Institute, 1994), XIV.

26. The Human Rights Watch Global Report on Prisons (New York, HRW, 1992), 3.

27. Ibid., 4.

28. See, Mental Health and Prisons: Information Sheet (Geneva: World Health Organization
[WHO], undated).

38 Open Society
Overview

29. Ill-Equipped: U.S. Prisons and Offenders with Mental Illness (HRW, 1999), 17–19,
www.hrw.org/reports/2003/usa1003/usa1003.pdf, accessed February 27, 2007; Mental Health
and Prisons, (WHO, undated), www.who.int/mental_health/policy/mh_in_prison.pdf, accessed
February 27, 2007.

30. Aebi, Council of Europe Annual Penal Statistics (SPACE I), Survey 2004, 52. It is likely that the
number of prison fatalities falling outside the Council of Europe area is higher but less well
recorded. For example, in 1996, 2,531 prisoners died in Kazakhstan, roughly half of them from
tuberculosis. At the time Kazakhstan had approximately 85,000 prisoners. The high death rate
prompted a government official to defend his country’s death penalty on the grounds that prison
conditions were so atrocious that few prisoners would survive a long sentence anyway. See,
Prisons in Europe and Central Asia (HRW Prison Project),
www.hrw.org/advocacy/prisons/europe.htm, accessed February 15, 2007.

31. Preventing Suicide. A Resource for Prison Officers, WHO/MNH/MBD/00.5 (WHO, 2000), 6.

32. Tonia L. Nicholls, Zina Lee, Raymond R. Corrado, and James R. P. Ogloff, “Women Inmates’
Mental Health Needs: Evidence of the Validity of the Jail Sentencing Screening Tool (JSAT),”
International Journal of Forensic Mental Health 3, No. 2 (2004), 168.

33. “Suicides and self-harm,” InnocentUntilProvenGuilty.com,


www.innocentuntilprovenguilty.com/keyfacts.html, accessed January 5, 2007.

34. Klaus-Peter Dahle, Johannes C. Lohner, and Norbert Konrad, “Suicide Prevention in Penal
Institutions: Validation and Optimization of a Screening Tool for Early Identification of High-Risk
Inmates in Pretrial Detention,” International Journal of Forensic Mental Health 4, No. 1 (2005), 53.

35. See, for example, Unjust Deserts: A Thematic Review by HM Chief Inspector of Prisons of the
Treatment and Conditions for Unsentenced Prisoners in England and Wales (London: HM Inspectorate
of Prisons, December 2000).

36. Carl B. Clements, “Crowded Prisons: A Review of Psychological and Environmental Effects,”
Law and Human Behavior 3, No. 3 (1979), 222.

37. Punishment First Verdict Later (Scottish Prison Service, 2000), para. 5.4,
www.scotland.gov.uk/hmip/docs/pfvl-00.asp, accessed January 8, 2007.

38. Ibid., Annexure 5, para. 17, www.scotland.gov.uk/hmip/docs/pfvl-00.asp, accessed January 8,


2007.

39. Barry Holman and Jason Ziedenberg, The Dangers of Detention: The Impact of Incarcerating
Youth in Detention and Other Secure Facilities (Washington, D.C.: Justice Policy Institute, 2006), 2.

40. Status Paper on Prisons, Drugs and Harm Reduction (WHO: Europe, EUR/05/5049062,
May 2005), 3.

41. Tuberculosis in prisons (Ottawa: Public Health Agency of Canada, March 2001), www.phac-
aspc.gc.ca/publicat/epiu-aepi/tb/epi0301/prison_e.html, accessed February 17, 2007.

42. Ibid.

43. Richard Coker, Martin McKee, Rifat Atun, Boika Dimitrova, Ekaterina Dodonova,
Sergei Kuznetsov, and Francis Drobniewski, “Risk factors for pulmonary tuberculosis in Russia:
case-control study,” British Medical Journal 332(7533) (2006), 85.

44. Alessandra Stanley, “Russians Lament the Crime of Punishment,” New York Times,
January 8, 1998.

45. “HIV/AIDS and Hepatitis C in Prisons: The Facts,” HIV/AIDS in Prisons 2004/2005
(Canadian HIV/AIDS Legal Network, 2004), 2.

46. “HIV Transmission in Prison,” Ibid., 1.

Justice Initiative 39
Pretrial Detention

47. Michael King, Bail or Custody (London: Cobden Trust, 1973), 79.

48. Jeremy Travis and Michelle Waul, “Prisoners Once Removed: The Children and Families of
Prisoners,” in: Jeremy Travis and Michelle Waul, eds., Prisoners Once Removed: The Impact of
Incarceration and Reentry on Children, Families and Communities (Washington, D.C.: The Urban
Institute Press, 2003), 15.

49. Ibid., 15–17.

50. Barbara J. Myers, Tina M. Smarsh, Kristine Amlund-Hagen and Suzanne Kennon,
“Children of Incarcerated Mothers,” Journal of Child and Family Studies 8, No. 1 (1999), 11.

51. Ibid.

52. Sampson Yao Akligoh, The Tax Base and the Dependency Ratio in the Less Developed World,
http://economics.about.com/cs/moffattentries/a/tax_base.htm, accessed February 16, 2007.

53. Edward M. Makhanya, Demographic dynamics and sustainable rural development in South Africa
(Durban: University of Natal, undated), 15.

54. This example is drawn from the HIV/AIDS literature and, with adjustments, applies equally to
a family affected by the absence of one of its senior members as a result of his detention. See
Chris Desmond, Karen Michael, and Jeff Gow, The Hidden Battle: HIV/AIDS in the Family and
Community (Durban: Health Economics & HIV/AIDS Research Division [HEARD], 2000), 10.

55. Creasie Finney Hairston, “Prisoners and Their Families: Parenting Issues during Incarcera-
tion,” in Travis and Waul, Prisoners Once Removed (Urban Institute Press, 2003), 264.

56. Creasie Finney Hairston, “Fathers in Prison,” in Katherine Gabel and Denise Johnston, eds.,
Children of Incarcerated Parents (New York: Lexington Books, 1995), 31–40.

57. Travis and Waul, “Prisoners Once Removed” in Travis and Waul, Prisoners Once Removed
(Urban Institute Press, 2003), 21.

58. “Key Facts and Figures,” InnocentUntilProvenGuilty.com,


www.innocentuntilprovenguilty.com/keyfacts.html, accessed January 5, 2007.

59. Anya Sarang, Tim Rhodes, Lucy Playy, Valentina Kirzhanova, Olga Shelkovnikova,
Venyamin Volnov, Dmitri Blagovo, and Andrei Rylkov, “Drug injecting and syringes use in
the HIV risk environment of Russian penitentiary institutions: qualitative study,” Addiction 101,
No. 12 (December 2006), 1787.

60. Annual Report for the Period 1 April 2005 to 31 March 2006 (Cape Town: Judicial Inspectorate
of Prisons, 2006), 13.

61. James C. Thomas and Elizabeth Torrone, “Incarceration as Forced Migration: Effects
on Selected Community Health Outcomes,” American Journal of Public Health 96, No. 10
(October 2006), 1762.

62. Ibid., 1765.

63. Ibid.

64. Donald Braman, “Families and Incarceration,” in: Marc Mauer and Meda Chesney-Lind,
eds., Invisible Punishment: The Collateral Consequences of Mass Imprisonment (New York: The
New Press, 2002), 118.

65. Patricia Hassett, “An Expert System for Improving the Pretrial Release/Detention Decision,”
Paper delivered at the 6th BILETA Conference (1991), 5.

66. Scott Henson, “Bail blunders boost bulging Harris jail population,” August 13, 2005,
http://gritsforbreakfast.blogspot.com/2005/08/bail-blunders-boost-bulging-harris.html,
accessed February 16, 2007.

40 Open Society
Overview

67. Forthcoming Open Society Justice Initiative / Renace study on pretrial detention practices in
Monterrey, Mexico.

68. Vagg and Dünkel, “Conclusion,” in Dünkel and Vagg, Waiting for Trial (Max Planck Institute,
1994), 927.

69. Prof. E.V.O. Dankwa, Special Rapporteur on Prisons and Conditions of Detention in Africa,
Prisons in the Central African Republic, Report on a visit June 19–29, 2000 (African Commission
on Human and Peoples’ Rights, Series IV, No. 7), 10.

70. Dankwa, Prisons in The Gambia, Report on a visit June 21–26 1999 (African Commission on
Human and Peoples’ Rights, Series IV, No. 5), 15–16.

71. Pre-trial detention, Guidance Note 5 (ICPS), www.kcl.ac.uk/depsta/rel/icps/gn5-pre-trial-


detention.pdf, accessed December 15, 2006.

72. Clive Davies, “Pre-Trial Imprisonment: A Liverpool Study,” The British Journal of Criminology
11 (January 1971), 32–48; Marian R. Williams, “The Effect of Pretrial Detention on Imprisonment
Decisions,” Criminal Justice Review 28, No. 2 (Autumn 2003), 299–316.

73. See, for example, Anne Rankin, “The Effect of Pretrial Detention,” New York University Law
Review 39 (1964), 641–655; Michael R. Gottfredson and Don M. Gottfredson, Decision Making
in Criminal Justice: Toward a Rational Exercise of Discretion (New York: Plenum Press, 1988);
Williams, “The Effect of Pretrial Detention on Imprisonment Decisions,” 299–316.

74. Rod Morgan, “England/Wales,” in Dünkel and Vagg, Waiting for Trial, 198.

75. Michael King, Bail or Custody (London: Cobden Trust, 1973), 75.

76. For a discussion of the financial, social, legal, and psychological costs associated with pretrial
detention see Robert E. Fitzgerald and Peter Marshall, Towards a more objective basis for bail
decision making, (Canberra: 3rd National Outlook Symposium on Crime in Australia, “Mapping
the Boundaries of Australia’s Criminal Justice System,” paper, March 22–23, 1999), 5–7.

77. King, Bail or Custody (Cobden Trust, 1973), 73.

78. Ibid.

79. “Key Facts and Figures,” InnocentUntilProvenGuilty.com,


www.innocentuntilprovenguilty.com/keyfacts.html, accessed January 5, 2007.

80. Philip Spier and Barb Lash, Conviction and Sentencing of Offenders in New Zealand: 1994 to 2003
(Wellington: New Zealand Ministry of Justice, 2004), 110.

81. Vagg and Dünkel, “Conclusion,” in Dünkel and Vagg, Waiting for Trial, 927.

82. Vivien Stern, Alternatives to prison in developing countries, (London: International Centre for
Prison Studies and Penal Reform International, 1999), 87.

83. Assessment of Justice System Integrity and Capacity in Three Nigerian States (Vienna:
United Nations Office on Drugs and Crime, technical research report, final draft, May 2004),
76–77, www.unodc.org/pdf/crime/corruption/Justice_Sector_Assessment_2004.pdf, accessed
December 13, 2006.

84. Advocates Africa, www.advocatesinternational.org/pages/global/africa/nigeria.php, accessed


December 15, 2006.

85. “Diagram of Problems” (Lilongwe: PRI Malawi, Conference on Legal Aid in Criminal Justice:
The Role of Lawyers and Non-lawyers and other Service Providers in Africa, 2004), www.penalre-
form.org/download/Comment%20on%20the%20diagram%20of %20problemsENGL.pdf,
accessed January 10, 2007.

Justice Initiative 41
Pretrial Detention

86. Estimate of the State Counsel in the Law Officers Department in Freetown, November 2003,
as cited in Paul James-Allen, “Accessing Justice in Rural Sierra Leone—A Civil Society Response,”
Justice Initiatives (February 2004), 57.

87. Prisons in Malawi, “Report on a visit 17–28 June 2001, by Dr. Vera Mlangazuwa Chirwa,
Special Rapporteur on Prisons and Conditions of Detention in Africa” (African Commission on
Human and Peoples’ Rights, Series IV, No. 9), 34.

88. Gideon Morris, Director, Judicial Inspectorate of Prisons, personal communication, January
18, 2006.

89. Antoinette Louw, Eric Pelser and Sipho Ntuli, “Poor Safety: Crime and Policing in South
Africa’s Rural Areas,” ISS Monograph Series, No. 47 (May 2000).

90. Assessment of Justice System Integrity and Capacity in Three Nigerian States, Technical research
report, final draft (Vienna: United Nations Office on Drugs and Crime [UNODC], May 2004),
112–116, www.unodc.org/pdf/crime/corruption/Justice_Sector_Assessment_2004.pdf, accessed
December 12, 2006.

91. Draft project idea: Strengthening judicial integrity & capacity, Phase II (UNODC [undated]),
www.unodc.org/pdf/crime/corruption/corruption_project_nigeria_judicial_integrity_draft.pdf,
accessed January 10, 2007.

92. Prof. E.V.O. Dankwa, Prisons in the Central African Republic, Report on a visit by Special
Rapporteur on Prisons and Conditions of Detention in Africa, June 19–29, 2000 (African
Commission on Human and Peoples’ Rights, Series IV, No. 7), 7.

93. Dr. Vera Mlangazuwa Chirwa, Prisons in Malawi, Report on a visit by Special Rapporteur on
Prisons and Conditions of Detention in Africa, June 17–28, 2001 (African Commission on
Human and Peoples’ Rights, Series IV, No. 9), 39.

94. Prof. E.V.O. Dankwa, Prisons in Benin, Report on a visit by Special Rapporteur on Prisons and
Conditions of Detention in Africa, August 23–31, 1999 (African Commission on Human and
Peoples’ Rights, Series IV, No. 6), 20.

95. Corruption and Good Governance, Discussion Paper 3 (New York: UNDP, July 1997), 35–39.

96. Anticorruption (Washington, D.C.: World Bank),


http://www1.worldbank.org/publicsector/anticorrupt/index.cfm, accessed February 27, 2007.

97. Crime and Development in Africa (Vienna: UNODC, June 2005), 81.

98. Paolo Mauro, “The persistence of corruption and slow economic growth,” IMF Staff Papers 51,
No. 1 (2004), 16.

99. The HDI measures the average achievements in a country in three basic dimensions of
human development, namely: life expectancy; literacy rate and school enrolment; and standard of
living in economic terms. See Human Development Reports (UNDP), http://hdr.undp.org/,
accessed February 17, 2007.

100. Graeme Newman, ed., Global Report on Crime and Justice (New York: Oxford University Press,
1999), 103.

101. For a review of the literature, see Paul Gendreau, Claire Goggin, and Francis T. Cullen, The
Effects of Prison Sentences on Recidivism (Ottawa: Solicitor General Canada, 1999), www.prisonpol-
icy.org/scans/e199912.htm, accessed February 15, 2007; see also Dorothy R. Jaman, Robert M.
Dickover, and Lawrence A. Bennett, “Parole outcome as a function of time served,” British Journal
of Criminology 12, No. 1 (January 1972), 7.

102. L. H. Bukstel and P. R. Kilmann, “Psychological effects of imprisonment on confined


individuals,” Psychological Bulletin 88, No. 2 (1980), 472.

42 Open Society
Overview

103. Barry Holman and Jason Ziedenberg, The Dangers of Detention: The Impact of Incarcerating
Youth in Detention and Other Secure Facilities (Washington, D.C.: Justice Policy Institute, 2006), 3.

104. Ibid., 2.

105. Ibid., 9.

106. See John Chisholm, “Benefit-Cost Analysis and Crime Prevention,” Trends & Issues in
Crime and Criminal Justice, No. 147 (February 2000), Australian Institute of Criminology,
http://aic.gov.au/publications/tandi/ti147.pdf, accessed February 27, 2007; Irvin Waller
and Daniel Sansfaçon, “Investing Wisely in Crime Prevention: International Experiences,”
Bureau of Justice Assistance Monograph, Crime Prevention Series No. 1 (September 2000).

107. Annual Report for the Period 1 April 2004 to 31 March 2005 (Cape Town: Judicial Inspectorate of
Prisons, 2005), http://judicialinsp.pwv.gov.za/Annualreports/annualreport2005.asp, accessed
November 17, 2006. In late 2007, US$1 was equivalent to approximately R7.

108. 2005 Estimates of National Expenditure (Pretoria: National Treasury, 2005), iv,
www.treasury.gov.za/documents/budget/2005/ene/overview.pdf, accessed November 17, 2006.

109. “Costs of Incarceration and Supervision,” The Third Branch 36, No. 5 (May 2004),
www.uscourts.gov/ttb/may04ttb/costs/index.html, accessed February 21, 2007.

110. Holman and Ziedenberg, The Dangers of Detention, 10.

111. Australian Crime Facts & Figures 2005 (Canberra: Australian Institute of Criminology, 2006),
104. In late 2007, US$1 was equivalent to approximately AU$1.2.

112. Accompanying document to the Proposal for a Council Framework Decision on the European
supervision order in pre-trial procedures between Member States of the European Union,
SEC(2006)1079 (Brussels; European Commission, August 29, 2006), 13. The cost ranges from a
high of e6,344 per month in Ireland to a low of e264 per month in Latvia.

113. Total GDP 2005, World Development Indicators database (World Bank, July 1, 2006),
http://siteresources.worldbank.org/DATASTATISTICS/Resources/GDP.pdf, accessed February
20, 2007.

114. The 2006 UN budget was US$1.9 billion (e1.5 billion). See All about the United Nations
Budget (UNA-USA fact sheet, June 2006),
www.unausa.org/site/pp.asp?c=fvKRI8MPJpF&b=1813833, accessed February 20, 2007.

115. Between 2002 and 2006 the Global Fund disbursed US$3.34 billion. See Current Grant
Commitments and Disbursements, The Global Fund to Fight AIDS, Tuberculosis and Malaria,
www.theglobalfund.org/en/funds_raised/commitments, accessed February 20, 2007.

116. For an exposition of how well-functioning legal institutions and government by the rule of
law are vital to good governance, which, in turn, is a precondition for sustainable development,
see Sachiko Morita and Durwood Zaelke, “Rule of Law, Good Governance and Sustainable
Development,” Conference proceedings, Volume I (Marrakech, Morocco: International Network
for Environmental Compliance and Enforcement [INECE], Seventh International Conference on
Environmental Compliance and Enforcement, April 9–15, 2005), 15.

Justice Initiative 43
Pretrial Detention

Boomerang: Seeking to
Reform Pretrial Detention
Practices in Chile
Pretrial detention reform efforts are pone the introduction, originally
often derided as “soft on crime.” scheduled for December 2004.
Verónica Venegas and Luis Vial report But concerns about crime in the
from Chile, where such criticism led to capital of Chile dogged the reform
a counterreform—even before the ini- process, and in mid-2003—that is,
tial reform could be fully implemented. nearly two years before the reforms
In December 2000, Chile began were implemented in Santiago—a
implementing a new system of crimi- diverse set of interests initiated a com-
nal procedure. From an antiquated, prehensive review and revision of the
inquisitorial, and written procedure, new justice system. Both the ruling
the country moved to a modern, adver- coalition government that had initially
sarial, and oral system administered endorsed the reforms and the political
by newly established public institu- opposition agreed to form an experts’
tions such as the National Prosecution commission whose mandate was to
Service and the Office of Public evaluate the new system’s weaknesses
Defenders. Broad revisions to the and propose courses of action to
rules governing pretrial detention address them, including legislative
were a central component of this changes.
transformation, which was widely rec- Driven by the results of the com-
ognized as the most revolutionary mission’s report and perceptions of
change in the country’s legal system the new system’s inadequacies, the
since the 19th century. government elaborated a legal coun-
Due to the size and scope of the terreform measure, sent it to congress,
changes, the reforms were imple- and, in November 2005, promulgated
mented gradually and divided into five several important changes to the
stages. Each stage rolled out the new newly enacted Criminal Procedural
system in two or three of the nation’s Code (CPC). Thus the counterreforms
13 administrative regions. In June followed just months after implemen-
2005, the reform program reached the tation of the reform itself.
Santiago Metropolitan Region, home The counterreforms proposed by
to a third of the national population the commission substantially changed
and nearly half of all recorded crime in the rules governing pretrial deten-
the country. Anxiety about the way the tion—again. Several of these changes,
new justice system would operate in as described in this report, made
the capital and most populous region it easier for prosecutors to obtain
had caused the government to post- orders of detention from judges.

44 Open Society
Case Studies

Although these changes do not appear the constitutional right to personal


to have had a great impact on the freedom legally ended with the act of
extent or probability of detention, the formal processing. Not everyone was
precedent set by these counterreforms in fact detained, but release before
warrants attention. The ease with trial was called “provisional freedom,”
which the laws were changed illus- and this “right” to be released was
trates the vulnerability of reforms actually a privilege that a defendant
to perceptions rather than fact, espe- had to request from a judge.
cially suspicions that leniency in Second, under the new rules, a
criminal justice contributes to crime judge could place a suspect in deten-
or hinders its prosecution. tion only after a prosecutor formalized
This paper describes the politics
behind the reforms and counter-
reforms. It analyzes the text of the The new CPC introduced the principle
changes in the law as well as the of proportionality, which requires
peculiar political alliance necessary to
support the backlash against reforms. that detention not be ordered when it is
The paper also evaluates the impact of disproportionate to the gravity of the crime.
the changes by examining rates of
pretrial detention in 2005 and 2006.
The paper draws on conversations and charges. This process, called “formal-
interviews with senior officers from ization of the investigation,” consists
the Public Defender’s Office, the of a formal notice given by the prose-
National Prosecution Office, judges, cutor to the defendant at a public hear-
and some politicians, as well as ing, stating that he or she is under
reviews of press articles and legisla- investigation for a specific crime.
tors’ debates on the process of chang- Whereas in the old system, no special
ing the CPC. hearing was required for detention,
the new code mandates that the defen-
The Initial Reforms dant be assisted by his or her lawyer at
The new CPC introduced four main any hearing in which the prosecutor
innovations to the rules governing asks for detention.
pretrial detention. First, the code Third, the CPC introduced the
explicitly incorporated the presump- principle of proportionality, which
tion of innocence (Article 4) and stated requires that detention not be ordered
that pretrial detention is now “an when it is disproportionate to the grav-
exceptional measure” and not the ity of the crime, the circumstances of
rule.1 In the old CPC, which did not its execution, and the likely penalty
contain a presumption of innocence, upon conviction. Article 141, which
detention was the rule, the default declared this principle, also outlined a
“measure of restraint” that followed series of circumstances in which
the formalization of charges against detention was not permitted.
the defendant. Under the old system, Fourth, the CPC also encouraged

Justice Initiative 45
Pretrial Detention

the use of new, noncustodial forms of not sound enough to allow a before-
restraint that are less onerous than and-after study of the impact of the
detention and yet can be ordered only new CPC on the frequency of pretrial
by a judge upon request from the pros- detention. Nor is that the purpose of
ecutor. These new measures of this report; instead, it will focus on the
restraint include: house confinement, changes in rules and perceptions
regular meetings with the prosecutor, about detention after the reforms were
prohibition against approaching the introduced.)
victim, travel restrictions, and others.
These four changes expressed a The Counterreforms
very clear preference for using deten- The counterreform legislation
tion sparingly. They followed closely approved in November 2005 signifi-
the message of President Eduardo cantly altered the rules governing
Frei, who, upon introducing the draft detention. The measure introduced
CPC in 1995, emphasized reducing three main changes whose primary
the use of all types of coercion in crim- effects were to expand judicial discre-
inal justice. In Frei’s words: tion in granting a request for deten-
tion, emphasize the safety of the
In the five years between 1987 and victim and society as a ground for
1991—a period which covers various dif- all forms of restraint, and weaken
ferent governments—the average pro-
the proportionality principle. These
portion of the number of cases filed in
changes were achieved through the
the courts to the number of arrests was
elimination of Article 141’s general
60.6 percent; thus, the 40 percent of the
total number of persons arrested in statement and two clauses forbidding
Chile—an annual average of 750,000 pretrial detention for minor offenses
persons—are deprived of their liberty, and offenses that qualified for a non-
albeit for a short period, without enter- custodial sentence.
ing the jurisdictional system.2 This strengthening of the judge’s
discretionary power was achieved in
Frei did not report the total volume an artful way: Article 139 was amended
of pretrial detention in his speech, and to give judges the power to determine
there was no solid data on which to if noncustodial measures were enough
judge its frequency. Researchers criti- to ensure that the defendant appeared
cal of government practices had limit- for trial.5 Previously, Article 139 did
ed access to official data and often had not assign that power to anyone in
to base their conclusions on small particular, thus giving all justice
samples and direct observation.3 Only system actors shared responsibility for
later were two scholars able to use old the final decision, based on the debate
government reports to estimate that, produced during the hearing.
in 1998—that is, before the reforms— The counterreforms were intro-
32 percent of all defendants in Chile duced despite scant evidence that
were tried while held in pretrial deten- judges were favoring defendants or
tion.4 (Unfortunately, this finding is otherwise making bad decisions about

46 Open Society
Case Studies

pretrial detention. Virtually no empiri- was not shared by all and was least
cal support for the counterreforms embraced by conservative politicians.
was produced, and there was no pro- This tension is seen in remarks
jection of their likely cost or effect. made by the right-wing legislator Juan
So, what made the government and Antonio Coloma in a 1998 debate
congress modify a set of rules before regarding the new CPC. He asserted
they were even fully enacted? What that there was no need to enforce
economic and political considerations the code’s spirit, which stresses
drove this process? individual freedom, and proposed not
limiting protective custody as a tool
The Unstable Coalition for controlling crime.6
behind the Reforms
The adoption of the new CPC in 2000,
and in particular its progressive rules The counterreforms were introduced despite
of pretrial detention, was the result
of a combination of pragmatic and
scant evidence that judges were favoring
principled goals. First, there was a defendants or otherwise making bad
clear intention to bring criminal jus-
decisions about pretrial detention.
tice, which had been abused by the old
regime, into line with constitutional
and international standards, especially
regarding the presumption of inno- The tension between support
cence. Second, there was a desire to for efficiency and support for human
alleviate the problems of overcrowded rights became clear as the new system
jails, especially those with many was implemented. When judges
unsentenced inmates. This latter granted defendants new forms of
objective was closely tied to another restraint short of pretrial detention,
set of broadly shared goals: making these decisions were quickly held
the new system more efficient and up by mainstream media as evidence
successful in resolving criminal cases. of the failure of the new system, which
The extremely slow criminal process was derided as weak and soft on
in the old system—which gave citi- criminals. Many politicians, particu-
zens the notion that the whole justice larly from the right wing, began to use
system was both unfair and ineffi- this supposed weakness of the system
cient—was a concern for everyone. as a political tool against the govern-
There was less agreement about ment, saying that the system was
the principles behind the reforms than flawed and that the governing coali-
there was about its pragmatic objec- tion had abdicated its responsibilities
tives. The goal of modernizing the sys- in the fight against crime.
tem to make it efficient was strongly This debate grew stronger leading
agreed upon by all actors. The goal of up to the presidential and parliamen-
embracing international human rights tary elections of 2005. One of the
standards for defendants, by contrast, candidates from the right wing,

Justice Initiative 47
Pretrial Detention

Sebastián Piñera, harshly criticized appropriated by the government, too.


judges for releasing defendants who Instead of strong statements in
had pleaded guilty.7 Joaquín Lavín, defense of constitutional principles,
another right-wing candidate, criti- officials talked about being “soft” on
cized the governing coalition’s candi- criminals and of a supposedly “revolv-
date, saying “Criminals prefer to vote ing door” for offenders.
for Michelle Bachelet because they By itself, this conservative com-
know she is going to have the same plaint about excessive due process
weak hand as President Lagos does.”8 would not have been likely to upend
These charges were issued after the reforms. Many criminal justice
Bachelet, who is Chile’s current presi- reform efforts founder when counter-
dent, declared, “If someone breaks the reformers find an accomplice inside
the bureaucracy itself.11 But in Chile,
the counterreformers found an ally,
paradoxically, in the academic circles
Ironically, the initial consensus in favor that had been most responsible for the
of the reforms was so strong that virtually democratic reforms in the first place.
no debate preceded their passage. Several prominent scholars who
were the brains behind the new crimi-
nal procedure, and who strongly
believed in the virtue of a balance
law for the first time, OK, we are going between efficiency and respect for
to give him an opportunity, but if he rights in the adversarial system, began
does it again, he will lose the benefit of to pull back in their support of the
his right to provisional freedom.”9 CPC. These scholars took a pragmatic
At the electoral debate grew hotter, position when confronting the wave
the public’s fear of crime increased. of criticism against the new system.
This sense of insecurity became They argued that in order to protect
common in Chile in the early 1990s the whole reform from a major set-
and is widely held today.10 An alarmist back that would roll back the new
discourse on crime and public safety rules, a sacrifice had to be made in
emerged from the political opposition, favor of rules that would, for example,
which had not been in power since limit a judge’s discretion in dealing
Chile returned to democratic rule with defendants.
in 1989 and thus needed grounds to The counterreform movement also
criticize the government’s perform- benefited from the postponement
ance. of the introduction of the reforms
Ironically, the initial consensus in Santiago. The original timeline
in favor of the reforms was so strong called for the new system to enter into
that virtually no debate preceded their force in the Metropolitan Region
passage. But once right-wing politi- in December 2004. By early 2003,
cians began to attack the reforms, this however, government officials were
nervous discourse on public safety was acknowledging that this timeline

48 Open Society
Case Studies

was unrealistic because the necessary actors engaged in the new system’s
infrastructure (e.g., buildings, com- functioning, including the heads of
munication systems, staff training) the Prosecutor’s Office, the National
was not in place. Thus, government Public Defender’s Office, the judiciary,
negotiations with the political opposi- the police, and the Ministry of Justice.
tion led to a law authorizing a later The third stage included the commis-
launch of the reforms in Santiago. sion’s internal debate, in which differ-
At that point, all political actors, ent members presented their propos-
including the government, agreed to als to the group. The commission
form an experts’ commission that agreed to adopt its final conclusions
would evaluate the new system, identi- based on consensus, even though
fy its main faults, and propose meas- some members brought openly stated
biases to the process.
ures to correct them. The formation
of the experts’ commission was a
victory for the counterreformers:
the specific goals and content of the The absence of reliable empirical informa-
evaluation were strongly influenced
tion about the extent of pretrial detention
by their critical views of the system,
particularly its approach to defen- abetted the counterreform movement.
dants’ rights. Additionally, most of the
members appointed to the commis-
sion were scholars with views critical
There was genuine consensus
of the new system.12
within the commission on a number
Another factor that abetted the of issues. Of the five matters it
counterreform movement was the addressed, disagreement arose only
absence of reliable empirical informa- about the rules governing pretrial
tion about the extent of pretrial deten- detention. But the disagreement was
tion and the alleged permissiveness complex, and the resulting findings
of judges. Neither the Ministry of and recommendations require close
Justice, which was ostensibly responsi- examination.
ble for coordinating the introduction Almost all members of the com-
of the reforms, nor the Prosecutor’s mission agreed that judges were over-
Office or courts measured the extent reliant on Article 141, which articulat-
or consequences of pretrial detention ed the proportionality principle and
under the new system in a way prohibited detention in cases of pri-
that could have fostered informed vate prosecution as well as for offens-
debate about it. es that could not be punished by incar-
The experts’ commission divided its ceration.13 Members of the commis-
work into three stages. The first stage sion considered changes to two of the
studied the quantitative and qualitative specific provisions that prohibited
data about the existing system. The detention. The first (section “a” of
second stage was designed to solicit the Article 141) ruled out detention in
opinions of a range of institutional cases where the penalty was lower

Justice Initiative 49
Pretrial Detention

than 541 days of imprisonment. The to a penalty less than 541 days in
second provision (section “c”) elimi- prison and who would most likely
nated detention in cases where the complete their sentence out of prison.
likely penalty would not involve incar- And finally, he argued that, even if the
ceration, thus granting immediate alleged problems with detention exist-
freedom or noncustodial measures of ed, they did not require a legislative
restraint to an enormous number of solution. But behind these academic
defendants. The commission mem- arguments lay a more profound politi-
bers suggested an exception might be cal disagreement. Bofill believed that
made for cases in which “the habitual-
exceptions to good rules about deten-
ity and repetition of the behavior” war-
tion were being proposed because of
ranted detention. Here, without explic-
concerns about the ability of the jus-
itly saying it, the commission of
tice system to safely supervise offend-
experts was alluding to minor offens-
ers not sentenced to prison. In Bofill’s
es, such as larcenies, that occupied
great attention in the press. words, “defendants must not be made
to pay for the failure of the system
The disagreements inside the
commission were intricate, and at to properly manage the convicted.”16
least three different positions were
expressed.14 One group of scholars Changing the Law
proposed eliminating sections “a” and on Detention in Chile
“c” from Article 141 as full exclusions The government presented its draft
and reinserting them as cases in law to congress in March 2004,
which the judge should preferably embracing the more moderate propos-
grant alternative forms of restraint al eliminating sections “a” and “c” as
unless the facts of the case demand full exclusions and reinserting them
granting detention. Another more
in the body of Article 141 as cases in
conservative group of scholars agreed
which the judge should preferably
on widening judges’ scope of action
grant alternative forms of restraint
and recommended that judges decide
unless the case demanded granting
based on the debate produced at the
hearing in each case. They suggested detention. However, after a 19-month
the elimination of the part of section process of parliamentary debate,
“a” that was problematic (felonies with the final reforms approved by con-
penalties lower than 541 days) and the gress differed greatly from those pro-
entirety of section “c.” posed by the government. The legisla-
Only one scholar, Jorge Bofill, was tive committee in charge of analyzing
completely opposed to the proposed the project managed to persuade the
amendments, arguing that there was majority of the senate to reform not
no empirical basis for the counter- just Article 141 but also Articles 139
reform positions.15 He also claimed and 140, which establish the general
there was no good reason for deten- rule of pretrial detention as the most
tion of offenders likely to be sentenced exceptional measure of restraint and

50 Open Society
Case Studies

the specific standards that should be justify detention, as Article 19, No. 7,
met in order to justify it. which guarantees the right to personal
As detailed earlier in this paper, freedom and individual safety, states
the change to Article 139 was achieved in section “e” that “provisional free-
by making the judge responsible for dom will follow unless arrest or deten-
determining the application of pretrial tion is considered by the judge as nec-
detention. Previously, the rule had essary for the investigations of the
not assigned that task to anyone ‘sumario’17 or for society’s or the
in particular. As for Article 141, the victim’s safety.”
reforms eliminated both its general
statement and sections “a” and “c,”
going beyond even the most conserva-
tive proposal laid out in the experts’ The counterreformers were primarily
commission by abolishing the propor-
tionality principle. interested in scoring political points with
In exceeding the recommendation a public alarmed about crime and safety.
of the experts’ commission, the legis-
lature overcame significant opposition
from the institutions of the justice
system. Representatives of these insti-
tutions defended the reforms and These arguments highlight the
fiercely contested the senate’s propos- need for greater constitutional clarity
als for counterreform. In defending in Chile. But the counterreformers’
the reforms, these actors often cited use of these legal arguments was
the lack of empirical data showing that misleading; they were primarily inter-
counterreforms were necessary. Yet ested in scoring political points with a
that very lack of data left the reforms public alarmed about crime and safety.
themselves open to attack. Some senators expressed views such
Counterreformers also argued as “currently, there are numerous
that the reforms were in conflict with recidivist criminals and drug dealers
rules established in the constitution. that are left free, despite the effort
According to these senators, the CPC invested by the police and the prosecu-
set limits for the application of deten- tor’s office,”18 and “this adjustment is
tion that were not present in the considered as necessary at this stage,
constitution, which gives the judge given that some judges’ liberality
exclusive power to determine the con- stands against our community’s
ditions in which detention can be dominant culture, which aspires to see
granted. They noted that the constitu- defendants in prison.”19 These argu-
ments supporting the counterreform
tion also does not explicitly recognize
were particularly potent because they
the proportionality principle or the
took place during the year and a half
exclusionary hypothesis contained
before the national presidential and
in Article 141. And they insisted that
parliamentary elections.
concerns about public safety could

Justice Initiative 51
Pretrial Detention

Figure 1: The Proportion of Defendants Placed in Detention during


Ordinary Proceedings, November 2004—November 2006

20%
February 2005; 19.0%
18%

16%
November 2004; 16.3% November 2006; 14.9%
May 2005; 14.8% November 2005; 14.1%
14%
April 2006; 11.9%
12%
June 2006; 10.7%
10%

8%

6%

4%

2%

0%
05

05

05

05

06
4

05

05

05

06

06

06

06

06

06

6
00

00

00

00

00
00

00

00

00

00

00
20

20

20

20
20

20

20

20
20

20

20

20

20

20
y2

y2

r2

r2

r2
r2

r2

y2

y2

r2

r2
ch

ril

ly

st
ay

ne

er

ly
ch

ril

ay

ne

st

er
be

be

be
ar

ar
be

be

be

be
ar

ar
Ju

gu

Ju
ob
Ap

gu

ob
Ap
ar

Ju

M
ar

Ju
nu

ru

em

em

nu

ru
em

em

em
M

Au

ct

Au

ct
b

ce

b
ce

Ja

Ja
Fe

O
pt

ov
ov

Fe

O
pt

ov
De
De

Se

Se
N

N
The Impact of the Reforms
The counterreforms that changed the institution within the justice system
CPC were enacted and enforced manufactures its own records and
throughout the country in November monitors its own practices, producing
2005, just a month before the national data that cannot be compared across
presidential and parliamentary elec- institutions. In order to assess the
tions. Since then, little has changed impact of the counterreform legisla-
in the use of the forms of restraint tion on justice practices, the authors of
established in the CPC, including pre- this paper had to conduct independent
trial detention. research. The data found on the
The data available to evaluate frequency of pretrial detention before
the impact of these counterreforms and after the counterreforms show
is scarce and not suited to comprehen- that little changed. As Figure 1 indi-
sive analysis. Indeed, the first thing cates, the proportion of defendants
that one observes in studying who were detained in Ordinary
the reforms and counterreforms is Proceedings20 varied only slightly in
the lack of data available to assess the 12 months following the passage
the quality and effectiveness of the of the counterreform legislation. In
administration of justice. Today, each May 2005—before the counterreform

52 Open Society
Case Studies

Figure 2: Number of Defendants Charged Each Month in Ordinary and


Simplified Proceedings, December 2005—November 2006

14,000

12,000

10,000

8,000

6,000

4,000

2,000

0
DEC JAN FEB MAR APR MAY JUN JUL AUG SEPT OCT NOV

Ordinary 8,704 8,741 8,653 10,660 11,661 11,661 10,978 11,833 13,240 11,731 12,424 11,756
Simplified 5,810 5,887 5,239 6,312 5,655 6,233 5,912 6,399 6,772 5,471 5,080 4,262

Private 109 104 81 115 104 126 115 152 195 144 194 165
Prosecution

legislation—14.8 percent of defen- tion changed only slightly.


dants were tried while in custody. In This data is good news to those
November 2006—a year after the leg- who wish to keep rates of pretrial
islation—this figure was 14.9 percent. detention low. Yet the total number
This finding is surprising, because of prosecutions has been growing—
the counterreforms gave prosecutors with a concomitant increase in the
more leeway to use Ordinary total number of pretrial detainees—
Proceedings—for which pretrial since passage of the counterreforms.
detention can be applied—in cases By June 2006, with the new justice
involving minor offenses. As Figure 2 system fully in effect throughout
indicates, prosecutors increased the country for more than a year,21
their use of Ordinary Proceedings the total number of defendants placed
and decreased the use of Simplified under detention was 15,786 (total
Proceedings (for which pretrial deten- in a 12-month period), and by
tion is not an option). Yet despite November 2006 that number reached
the increased use of Ordinary 16,981. Clearly, the total number of
Proceedings, the overall proportion people under pretrial detention has
of defendants held in pretrial deten- increased.

Justice Initiative 53
Pretrial Detention

Figure 3: Dispositions of Cases Involving Pretrial Detainees in which


Public Defenders Participated

2005 2006
January—December January—December

Percent of Percent of
All Pretrial Total All Pretrial Total
Disposition Type Detainees Dispositions Detainees Dispositions

Reparation to Victim 1.1% 48,290 0.6% 82,785


Conviction 17.6% 41,475 17.7% 63,194
Acquittal 27.1% 1,682 30.6% 2,084
Sobreseimiento temporal22 10.1% 3,444 5.6% 7,141
Sobreseimiento definitivo 5.9% 9,948 6.0% 15,314
Derivación23 30.1% 6,688 33.2% 10,873
Dismissal by Prosecutor 6.2% 13,892 3.9% 23,233
Fine 1.9% 3,309 1.8% 2,067
Other 0.0% 179 0.6% 174
Total 100.0% 128,907 100.0% 206,865

Another means of analysis is to lack of jail space to hold additional


track the percentages of pretrial pretrial detainees and prosecutors’
detainees according to the final dispo- inability to prosecute all felonies,
sition of their cases. For example, which leads them to use pretrial deten-
Figure 3 highlights the high percent- tion only when absolutely necessary
age of pretrial detainees who were (e.g. when the defendant’s freedom
acquitted. Another important statistic endangers the investigation).
is the proportion of pretrial detainees Also, interviews with the system’s
eventually convicted—around 17 per- main actors (prosecutors, defenders,
cent. This rate changes little between and judges) suggest they internalized
2005 (most of that year passed before the principles of the reforms, despite
the implementation of counterreform the counterreforms’ following so
legislation in November 2005) and closely behind. The rise of a new
2006 (after the legislation). However, generation of judges who are strongly
the total number of pretrial detainees committed to international human
and the total number of all cases esca- rights standards is an additional factor
late sharply after the counterreforms. that appears to have affected the data.
The frequency of pretrial detention The data examined here do not
did not change significantly, despite support sweeping conclusions either
the counterreforms. This is probably about new trends in pretrial detention
due to several factors, including the or the resiliency of the new system of

54 Open Society
Case Studies

justice in Chile. But it does appear used according to the general princi-
that all actors have embraced their ples and rules contained in the new
respective roles in the new oral, CPC, which limit its application as
adversarial process. On balance, it the most exceptional measure of
seems that pretrial detention is being restraint.

Notes

Verónica Venegas and Luis Vial work in Chile’s National Public Defenders Office. They helped
the office form a response to the counterreforms described in this paper. This paper reflects their
personal views and does not represent the position of the National Public Defenders Office.
1. Original Article 139, paragraph 2, stated: “Pretrial detention will only be used when other
measures of personal restraint were insufficient to assure the completion of proceedings”
(“La prisión preventiva sólo procederá cuando las demás medidas cautelares personales fueren
insuficientes para asegurar las finalidades del procedimiento”).
2. See “Mensaje de S. E. el Presidente de la Republica con el que inicia un proyecto de ley que
establece un nuevo código de procedimiento penal,” www ksg.harvard.edu/criminal justice.
3. For an example of this research, see Cristian Riego, La Prisión Preventiva en Chile (1990).
4. Andres Baytelman and Mauricio Duce, Evaluación de la Reforma Procesal Penal (Santiago: 2003),
194.
5. Article 139, paragraph 2, states now: “Pretrial detention will be used when other measures of
personal restraint have been deemed by the judge to be insufficient to assure the completion of
proceedings and the security of the aggrieved party or of society.” (“La prisión preventiva
procederá cuando las demás medidas cautelares personales fueren estimadas por el juez como
insuficientes para asegurar las finalidades del procedimiento, la seguridad del ofendido o de la
sociedad.”)
6. “In my opinion, this is a Code that goes off the real needs of the country, and places many
obstacles to judges, with the aim that a person who is being processed—using the ancient
lexicon—may get released before trial. The aim is that the person goes to prison only after being
convicted. That is reasonable and rational from a theoretical point of view, but it clashes with
a harsh reality that hits millions of Chilean families: the enormous amount of people who
break the law—we can check it through the media—while a previous offense is investigated.”
Representative Juan Antonio Coloma, Sesion 24, Legislatura 336, 1998 – First Constitutional
Procedure for the new Criminal Procedure Code.
7. La Tercera (digital edition) October 9, 2005.
8. La Tercera (digital edition) September 28, 2005.
9. La Tercera (digital edition) September 27, 2005.
10. “UDI representatives, Gonzalo Uriarte and Marcelo Forni called ‘to put and end to the charade
about crime’ and to speed four bills that will help to improve criminal justice in the country. The
members of parliament reported that during the legislative period 2002–2005 and up to June
2006, a total of 80 bills have been introduced for approval, ‘which would help to reduce people’s
fear.’ The representative called on President Michelle Bachelet to stop improvising on this subject,
and asked her to label as urgent, ‘…projects such as those which widen the scope for granting
pretrial detention, forbid release to dangerous criminals, increase penalties for recidivists, or
establish as an aggravation the fact of committing a crime while on release,’” in “80 anti-crime
projects lie dormant at the Congress,” La Segunda (digital edition), June 30, 2006.
11. See, for example, David Rothman, Conscience and Convenience: The Asylum and Its Alternatives,
(Boston: Little, Brown and Co., 1980).

Justice Initiative 55
Pretrial Detention

12. See, for example, “Diez juristas integran comisión de la reforma,” El Mercurio,
October 23, 2003, 1.
13. Article 141 then stated that detention shall not be ordered when it is disproportionate to the
gravity of the offense, the circumstances of its commission, and the likely penalty.
14. One member, Gonzalo Vargas, abstained from making any recommendations. See
“Documento de la Comisión nombrada para revisar y evaluar la marcha y funcionamiento del
nuevo sistema de enjuiciamiento criminal” (Comisión de Expertos Reforma Procesal Penal,
December 2003), www.pazciudadana.cl.
15. The judiciary and the Public Defenders Office also believed there was little evidence to support
this claim.
16. “Documento de la Comisión . . .” (Comisión de Expertos Reforma Procesal Penal), 50.
17. “Sumario” refers to the first investigative phase of the inquisitorial criminal process, whose
main characteristics were that it was conducted by the same judge who would later sentence the
case’s defendant, was written, nonadversarial, and kept secret from the case’s actors.
18. “Modifica los Códigos Procesal Penal y Penal en diversas materias relativas al funcionamiento
de la Reforma Procesal Penal,” Intervención del Senador Alberto Espina (Informe de Comisión
Mixta de Constitución, Legislación, Justicia y Reglamento del 11/05/2005, Boletín 3465-07), 24,
http://sil.senado.cl/pags/index.html.
19. Íbid., Intervención del Senador José Antonio Viera-Gallo, 23.
20. Ordinary Proceedings are the only trial mechanism in which a defendant can be placed in
pretrial detention.
21. The criminal justice system reform was implemented in five stages, the last of which started
in June 2005 in the capital region.
22. Sobreseimiento is a type of judicial resolution that suspends or ends the process for lack of
cause. There are usually two types: provisional, which suspends the process for some legally
predetermined reason; and definitive, which ends the judicial proceeding.
23. Cases referred to a mediator, or a juvenile or other court.

56 Open Society
Case Studies

Catalyst for Change:


The Effect of Prison Visits
on Pretrial Detention in India
Criminal justice reform can be daunt- tutions cloak their operations under
ingly complex work. But as R.K. Saxena the guise of security. The impregnable
explains, a relatively simple program in walls of prisons, combined with the
India succeeded in reducing the pretri- outside community’s indifference
al detainee population. toward inmates, make prisons a fertile
breeding ground for human rights
The Commonwealth Human Rights abuses. An unfortunate (although
Initiative (CHRI), an independent,
nonpartisan, international organiza-
tion, has been working for the conser- In India, gaining access to prisons
vation and practical realization of
human rights in the countries of the is an especially formidable task
Commonwealth since 1993. Its main for researchers.
goal is to advance constitutionalism,
the right to information, and reforms
in various agencies of the criminal small) section of the society, having
justice system. CHRI is particularly come into conflict with the law, lan-
concerned with prison reforms guishes in prisons that are managed
because they form an integral part of through archaic laws and rules, the
the preservation of human rights in observance or violation of which is
custodial institutions. Prisons are typi- generally beyond public scrutiny. An
cally the end product of the process understanding of the actual detention
of administering criminal justice, conditions is blocked by several layers
except for offenders placed in commu- of security procedures that hide facts
nity-based programs. The operation of or render them out of date by the time
these institutions thus has a great they are discerned.
impact on the experience and meaning In order to assess prison conditions
of rights and justice in a country. They and add protections against the abuse
also provide an important ground for of detainees’ rights, CHRI capitalized
study and research on the entire struc- on an official prison visitors pro-
ture and process of the administration gram—a kind of community interven-
of justice. tion provided in the law governing
Typically, it is not easy for the management of prisons. Working
researchers to gain access to prisons. with state human rights commissions
In India, gaining such access is an and equipped with permission from
especially formidable task. These insti- the controlling government depart-

Justice Initiative 57
Pretrial Detention

ment,1 a CHRI study team began 2. The ills of prisons are not entirely
visiting prisons in 2001 in Madhya the making of the penal institu-
Pradesh, then the largest state in tions—many of them emerge out
India.2 CHRI subsequently extended of the lack of cooperation from,
this work to two other states, and coordination with, other agen-
Rajasthan and Chhattisgarh. By cies of the criminal justice system,
such as the judiciary, police, pros-
2005, a CHRI study team had visited
ecution, free legal aid, and proba-
27 prisons in Madhya Pradesh, 22 in
tion services.
Chhattisgarh, and 26 in Rajasthan.
CHRI used these visits to develop This paper examines the various
an understanding of the scale and rea- reasons for overcrowding and details
the logic of prison visits as a tool for
advancing rights and reforming pretri-
Instead of collecting data on the al detention. It assesses the contribu-
tion of these visits to addressing the
operation of justice from the outside, issues of sentenced and unsentenced
CHRI was able to monitor and scrutinize inmates in the prisons of several
Indian states.
the prison system from within.
Prison Population Growth,
sons for overcrowding, the extent of Overcrowding, and Pretrial
the abuse of inmates’ rights, and the Detainees
sources of problems in the adminis- Overcrowding in India’s prisons is
tration of justice. Instead of collecting directly related to the presence of a dis-
data on the operation of justice from proportionately large number of pre-
the outside, CHRI was able to monitor trial detainees (generally referred to as
and scrutinize the prison system from under-trial prisoners in India).
within. Between 1971 and 1980, the number
CHRI then submitted reports to of under-trial prisoners in India rose
respective state governments about sharply. The number of persons
prison conditions and organized work- admitted to prisons under judicial cus-
shops for officials to discuss prison tody to face trial climbed from about
problems and create methods to 600,000 in 1970 to more than one
improve conditions. million in 1980, an increase of 62 per-
Two distinct pictures emerged cent. The average daily population of
through the studies conducted by under-trial prisoners also rose sub-
CHRI and through the exchange of stantially during this period, from
views during workshops: 42,500 to 77,500. This growth has
1. Overcrowding is one of the major continued to the present day. At the
problems facing most prisons end of 2003, there were 229,997
in India, and the excessive length under-trial prisoners in India.
and use of pretrial detention is a The number of under-trial prison-
major cause of overcrowding; and
ers alone nearly exceeds the total

58 Open Society
Case Studies

Table 1: Indian Prison Population Data, 2002 and 2003

2002 2003

Convicts 82,121 91,766


Under-Trials 234,884 229,997
Detenues* 4,832 4,008
Others** 520 748
Total 322,357 326,519

* Detenues are those detained preventively, without trial, by executive order under Preventive Laws
intended to tackle terrorism and other specific offenses.
** Others include debtors, insolvents, and other noncriminal inmates.

capacity of the prison system, which such as the level of offending and the
can hold 233,543 inmates of all kinds. nature of socioeconomic development
And yet, there is also a large and grow- in the country. The slow pace of inves-
ing number of convicted inmates, tigation by prosecution agencies, a con-
which stretches the system well servative approach to the granting of
beyond capacity. The number of con- bail, and the delayed disposal of cases
victed prisoners grew by 12 percent by the judiciary are other important
between 2002 and 2003, from 82,121 contributing factors.
to 91,766 (Table 1). In that same year, By visiting prisons and talking to
there was a two percent decline in inmates as well as officials, CHRI was
the number of under-trial prisoners, able to learn more about the circum-
but the total number of prison stances that affect prison population
inmates in the country (326,519) levels. Below is a list of primary fac-
remained in excess of capacity. tors that emerged from the study. It is
Reportedly, the number of inmates not an exhaustive list nor is it a scien-
has further increased since then, and tific explanation of the reasons for
yet there has been hardly any increase overcrowding. But, like prison condi-
in the capacity of prisons to accommo- tions, these factors heavily influence
date inmates.3 the experience of justice for inmates.

Sources of Excess Detention Indiscriminate Arrests


There are many reasons why prisons It is generally acknowledged by the
are so overcrowded in India, including entire criminal justice system that
aspects of the operation of the justice apprehending agencies arrest and
system as well as tangential factors, detain unnecessarily large numbers

Justice Initiative 59
Pretrial Detention

of persons, often for the purpose flimsy. Other arrests were made so
of linking criminal conspiracy or con- that the police could extract informa-
necting criminal events to pending tion about other crimes and obtain
cases.4 There is also abundant data “illegal advantages.”8
showing that the police do not use Arbitrary arrests and prolonged
their powers of detention judiciously. judicial custody—especially in parts of
For example, in 1980, the National the country marked by political
Police Commission of India estimated unrest—are common. Because there
that a large number of arrests made by is no second stage of review or judicial
the police were not necessary to control appraisal of the cases of those persons
crime and needlessly costly due to brought in by the police (and military),
expenditures on harboring arrested suspects languish in prisons pending
persons in jails. The majority of a protracted trial.9 Their judicial cus-
tody is in essence used as a preventive
measure to threaten prospective sup-
Most of the under-trial prisoners porters of political opponents and to
had been detained because deter others in the community from
harboring insurgents.
they were not able to post bail.
Delay in the Production of
arrests, it concluded, were for very Accused before Trying Magistrates
minor offenses, and 43 percent of all There is extensive and frequent viola-
expenditures in the concerned jails tion of Section 167 of the Criminal
resulted from the detention of prison- Procedure Code (CPC), which pro-
ers who “need not have been arrested hibits the extension of the period of
at all.”5 remand beyond 15 days without the
A study conducted in 2000 by the accused being physically present
Law Commission of India confirmed before the trying magistrate.10 In prac-
these findings. On the basis of empir- tice, the accused person waits in prison
ical data collected from different states and is not produced before the magis-
in India, the Commission showed that trate; only the warrant is sent from the
the number of preventive arrests and prison to the court, and the court rou-
arrests for petty offenses was very tinely extends the period of remand
large.6 Moreover, the proportion of without hearing the accused person
under-trial prisoners was unusually or his legal representative. This results
high, and most of them had been in long periods of detention without
detained because they were not trial or without even the charges being
able to post bail or furnish sureties.7 framed and read to the accused. In
In several cases the motive for the the absence of an interaction with the
arrest was to haul in and harass as trial court, the accused person (or his
many persons as could be connected legal representative) has no opportuni-
to a crime, even if the evidence was ty to make his case or request release
on bail.

60 Open Society
Case Studies

In most cases, the pretext for delay In cases when courts do grant bail,
is the unavailability of a police guard the conditions and amount of bail
for escorting the accused to court. It is and/or personal bond are often
sad and surprising that the state, beyond the reach of the accused and
which enjoys the right to curtail the their families. As a result, defendants
liberty of a citizen, callously ignores remain in prison because of their lim-
and violates its obligation to provide ited economic means. Professional
proper means of delivery of justice to “bailers” take advantage of such situa-
citizens in conflict with the law. tions.14 In tribal areas, where most
Legally, the shortage of police person- people do not own any land or
nel cannot be an excuse for the curtail- immoveable property, it is impossible
ment of the right to liberty and undue for the accused to produce a patta
detention of accused persons in pris- (document of ownership of land or
ons. The judiciary has the option to
release an accused person on bail
under such circumstances, but this At the lower level, India’s judiciary is very
discretion is seldom used.
conservative in the granting of bail or bond,
Limited Use of Bail/Bond despite the clear preference in the law.
At the lower level, India’s judiciary is
very conservative in the granting of bail property) to the satisfaction of the
or bond, despite the clear preference in court and therefore cannot secure their
various provisions in the law and some liberty even after an order of release on
guidelines issued by the Supreme bail/bond has been issued. Overall,
Court of India.11 A fundamental princi- the amount of bail/bond prescribed by
ple of the criminal justice system in the courts (particularly by the lower
India is that all defendants are inno- courts, where most cases are pending)
cent until proven guilty. Accordingly, is not correlated to the socioeconomic
and as high court decisions have reiter- status of the accused person, which
ated, the granting of bail should be creates an array of problems.
the rule rather than the exception.12
Of course, pretrial detention may be
Underutilization of Provisions for
justified in some circumstances—
Releasing First-Time Offenders
for example, to prevent the accused
from absconding, committing another A majority of pretrial and convicted
offense, tampering with evidence, prisoners belong to the category of
or intimidating witnesses before the first-time offenders. Prison statistics
trial. But unnecessary pretrial deten- show that repeat and habitual offend-
tion subjects the accused to the stigma- ers make up between five percent and
tizing effect of detention, including six percent of all persons convicted of
the inability to prepare an effective crimes in the country.15 The portion of
defense, without any proper justifica- habitual offenders among under-trial
tion in law.13 prisoners is even lower. By a rough

Justice Initiative 61
Pretrial Detention

estimate, nearly 90 percent of the The use of these provisions could


offenders in prison (convicted and reduce the number of under-trial
under-trial) fall into the category of prisoners as well as the length of
first-time offenders. Even if we deduct their detention, but it seems that
the exceptions falling under various neither advocates nor the judiciary
sections of the “Probation of Offender vigorously apply them. The study team
Act,” and Section 360 of the CPC, of CHRI has been entreating state-
almost 50 percent of this population sponsored free legal aid functionaries
should be eligible for the mandatory to educate under-trial prisoners about
benefit of noncustodial correctional these provisions.
treatment envisaged under these spe-
cial provisions. Discord in the Criminal Justice System
A fundamental reason for the prob-
lems with pretrial detention is discord
Some of the judicial magistrates and disharmony within India’s crimi-
nal justice system. The absence of
interviewed by CHRI admitted coordination between institutions in
that they were afraid of being India is endemic. These agencies may
all share the same objectives, but
labeled as pro-offender judges.
they largely fail to achieve them due
to a lack of concerted effort. Each
agency therefore passes the blame
for the failure of the system to other
It is a sad commentary on the crim- sister agencies.
inal justice system that these provi-
sions are not applied as they were
intended. Some of the judicial magis- Addressing the Problem
trates interviewed by CHRI admitted There is no shortage of good ideas
that they were afraid of being labeled about how to reduce prison crowding
as pro-offender judges and penalized in India. Remedial efforts might focus
in their Annual Appraisal Reports on: faster investigations by the prose-
if they applied these provisions as cution and speedier trials; more strin-
frequently as was intended. Section gent application of rules by the lower
6 of the Probation of Offenders Act judiciary in granting bail; review of
and Section 361 of the CPC mandate under-trial prisoners and their release
that if (in the case of certain categories on personal recognizance; and an alert
of offenders) the provisions are not prison administration, regularly pro-
applied, the trial magistrate/judge ducing under-trial prisoners before
shall have to record reasons for not courts, discouraging the willful
doing so. But in the large majority of absence of the accused person on the
cases this mandate is violated with date of hearing, ensuring requisition of
impunity. escort guards on time, providing
appropriate transport to carry remand

62 Open Society
Case Studies

prisoners to courts, organizing regular The Logic of Prison Visits:


meetings of review committees for Supports for Reform
under-trial prisoners, using free legal Another barrier to alleviating the
aid to benefit under-trial prisoners, and system’s flaws is rampant corruption.
extending full cooperation to official CHRI initiated prison visits because of
and nonofficial visitors studying prison the dangerous veil of secrecy that cov-
conditions so they can make recom- ers the institution of criminal offender
mendations for appropriate action confinement. With few exceptions,
and improvement.16 conditions in prisons are appalling,
All of these innovations could take making them a fertile breeding ground
place without changes in the law. for human rights abuse. CHRI discov-
Indeed, the seeds of reform and
improvement in the administration of
justice lie dormant in the existing law All of these innovations could take place
itself. What is required, in other without changes in the law. Indeed,
words, is the implementation of the
the seeds of reform and improvement
provisions of law in the right spirit.
But this in turn requires thoughtful in the administration of justice lie
coordination between various agen- dormant in the existing law itself.
cies of the criminal justice system.
Unfortunately, the constitutional
design of the criminal justice system ered that most of these afflictions
leads to the functioning of its various result not from any malfeasance of
agencies in separate compartments the prison staff but from the collective
and denies a holistic approach to neglect of the whole system. There is
justice delivery. Each organ of the a lack of effective communication.
criminal justice system (the police, There is no linkage, no monitoring, no
deadlines, no evaluation, and therefore
advocates, prosecution, probation,
no result.
judiciary, and prisons) claims to be
Jail staff and inmates alike were ini-
doing its best, but the system as a
tially suspicious of the idea of prison
whole fails to deliver. There is no com-
visits, but perseverance and continued
mon platform at any level—national,
interaction with Non-Official Visitors
state or local—where all the agencies (NOVs) allowed CHRI to discern the
of the criminal justice system meet possibility of improving the system
and sort out the complexities of their through simple interventions.
work together. Some sporadic meas- Since 2001, study teams from
ures to improve coordination are CHRI have visited 75 prisons, four
taken here and there to alleviate the protective homes for women, and
symptoms, but the root of the dis- four women’s police stations in the
ease—the constitutional design of the three states of Madhya Pradesh,
system—persists.

Justice Initiative 63
Pretrial Detention

Chhattisgarh and Rajasthan. CHRI solicited. This approach not only


teams involved as many local func- ensured a large presence from all sec-
tionaries of the criminal justice system tions of criminal justice administra-
as possible. The tacit purpose was tion but also had a positive effect on
to sensitize them to the suffering the resultant decision making by these
of incarcerated persons and to the agencies.
mental agony of their protracted wait CHRI has organized 11 such
for a trial. It also provides these visit- regional workshops in three states.
ing officials with an opportunity to see
These workshops were widely attend-
how cooperating with other agencies
ed by a cross-section of the criminal
could solve difficult problems.
justice agencies working at both the
Local authorities from the judiciary,
functional level and the policy-making
administration, and police have gener-
level. In order to generate appropriate
ally been cooperative. On several occa-
reaction from official and nonofficial
sions, CHRI visits and reports have
participants, some challenging ques-
resulted in prompt orders being
tions were raised during the sessions
issued for free legal assistance, for
of each workshop. To bolster the
holding Saturday courts in jails, for
providing sufficient police personnel potential for reform within the system,
to escort under-trial prisoners to CHRI posed the following questions:
court, for referring sick prisoners to g Are bigger prisons the only solution
specialist medical services, and for to the overcrowding problem? Or are
releasing petty offenders through plea there methods to reduce the prison
bargaining. population?
CHRI soon realized that it was nec-
g Are automatic arrests necessary
essary to make some common plat-
form available to the functionaries of for maintaining law and order in
criminal justice agencies to discuss society? Can appropriate discretion
their problems and to find some ways be used immediately after the
of improving interdisciplinary coordi- commission or reporting of crime to
nation. As a result, regional work- restrict detention to the minimum
shops for the orientation of nonofficial necessary?
prison visitors were organized and g Can the criminal justice process be
higher officials of the judiciary, police, sustained if suspects in minor
prisons, prosecution, and probation crimes are released on bail, bond,
services were invited to chair different or personal recognizance instead
sessions. As a part of the strategy to of confined to custodial care?
involve a wide array of criminal justice
officials, the cooperation of constitu- g Can women offenders, who have
tional bodies such as the State Human roots in family and society, be more
Rights Commissions and the State readily granted bail, bond, or
Commissions for Women was also release on personal recognizance

64 Open Society
Case Studies

Table 2: Number and proportion of convicts and under-trial prisoners


(against total prison population) in major states of India at the end of 2002
Category of prisoners % share of
Name of State Convicts Under-trials Convicts Under-trials
All India Total 82,121 234,884 25.5 72.8
Bihar 5,064 32,101 13.6 86.1
Jharkhand 3,013 12,094 19.9 79.9
Karnataka 2,298 7,972 22.1 76.6
Orissa 2,975 9,616 23.5 76.1
Uttar Pradesh 6,073 44,951 11.6 86.1
West Bengal 2,611 16,036 13.9 85.6
Delhi 2,333 9,656 19.4 80.2
Andhra Pradesh 4,872 8,549 36.3 63.7
Assam 2,730 4,319 38.6 61.1
Gujarat 3,286 6,369 32.1 62.2
Haryana 3,633 7,717 32.0 67.9
Kerala 1,711 3,458 33.0 66.7
Maharashtra 7,198 14,517 32.7 65.9
Punjab 3,984 8,113 32.9 67.0
Tamil Nadu 5,582 14,413 25.5 65.8
Madhya Pradesh 12,057 15,635 43.4 56.3
Chhattisgarh 5,036 4,961 50.3 49.6
Rajasthan 4,976 7,322 40.2 59.1

Source: Prison Statistics India 2002, National Crime Records Bureau, Ministry of Home Affairs,
http://ncrb.nic.in.

without risking the due process of be formed at every district and


law? subdivision and empowered to
release or recommend to appropri-
g Can under-trial prisoners be allowed ate authorities the release of
to work and be paid minimum inmates to community-based trial
wages inside the prison to support rather than custody-based trial?
their families outside?
g Should such committees visit pris-
g Should under-trial prisoners’ review ons for review of cases of under-trial
committees comprising members prisoners every month or every
of the local criminal justice system fortnight?

Justice Initiative 65
Pretrial Detention

g How can unnecessary delays, post- Impact on Prison Populations


ponements of hearings, and the In its original design, the prison
nonproduction of accused before visitors program was never directly
magistrates be reduced? aimed at reducing the extent or dura-
g
tion of pretrial detention. The goal,
Should the cases of women and
rather, was opening up the obscure
young offenders remanded to judi-
nature of prison management through
cial custody be queued separately
permitted community interventions.
for early disposal?
It was during the implementation
g Could some judicial magistrates of the program that CHRI discovered
hold court within the prison premis- the need to bring together all agencies
es once a month or fortnight? of the criminal justice system at
various levels as a prerequisite for
g Can the amount of bail/bond be jus- building understanding and coordina-
tifiably linked to the socioeconomic tion among them.
status of the accused? The repeated emphasis on such
coordination at the local level, as well
g At what level should overcrowding
as at the policy-making level, has had
in prisons be treated as unaccept-
an impact on the under-trial prison
able?17
population in the three states in which
These and other questions stirred the program has been carried out.
animated discussions during the meet- While there is no clear causality, the
ings and workshops. Representatives data in Table 2 show how the ratio of
of the criminal justice system are the under-trial prison population to
often averse to taking lessons or advice that of convicted prisoners is lowest in
from an NGO or outside agency work- Madhya Pradesh, Chhattisgarh, and
ing to reform the system, and their Rajasthan—the three states in which
first reaction was tough opposition. CHRI has worked most intensively.
But as the discussions proceeded, the Table 2 provides data on the num-
functionaries accepted the need for ber of inmates in Indian prisons. In
the country as a whole, nearly three-
reform and for cooperation and coor-
quarters of all inmates are under-trial
dination among all agencies of the
detainees. This ratio varies consider-
criminal justice system.18 Meeting
ably from state to state. In some states,
participants realized that there was such as Bihar, Jharkand, and
a lack of interagency understanding Karnataka, the number of under-trial
of roles in the justice process; that inmates exceeds that of the convicted
some archaic statutes required reex- inmates by a factor of four to seven.
amination; and that many problems In other states it is about two times.
were remediable and could be dealt And in Rajasthan, Chhattisgarh, and
with at the local level. Madhya Pradesh, the states where

66 Open Society
Case Studies

CHRI has been most active, the pro- by which there has been a reduction in
portions are roughly equal. the size of the population of pretrial
CHRI has been advocating in detainees—through: (a) judiciously
Madhya Pradesh, Chhattisgarh, and restricted arrests and alternative
Rajasthan for: (a) coordination among means of bail, bond, house arrest,
various agencies of the criminal personal recognizance; or (b) more
justice system at the local level to rapid judicial procedures leading to
bring the accused before the courts discharge, acquittal, or conviction.
faster; (b) use of the Probation of (first) In the long drive to reform criminal
Offenders Act in appropriate cases; (c) justice and preserve prisoners’ rights, it
holding courts in prisons for disposal is important not to jump to conclu-
of cases of under-trial prisoners sions. A reduction in the proportion or
apprehended on minor charges; and ratio of pretrial detainees in compari-
(d) disposal of the cases of detainees son to convicted prisoners cannot serve
who plead guilty and who have passed as an absolute indicator of reform in
sufficient time in prisons pending the situation of pretrial detention. The
inquiry, investigation, and trial. shift from pretrial prison population to
From these numbers it appears convict population can at best denote
that this work has had an impact on the acceleration of judicial processes
the criminal justice system resulting and perhaps a more punitive disposi-
in the reduction of the under-trial tion in the judiciary. It cannot detect
population. In Madhya Pradesh, for whether there have been changes in
example, the size of the under-trial the number of arbitrary arrests or the
prison population declined during frequency of denials of the right to bail
the years 2001 to 2003, from 16,837 by defendants.
to 15,635 to 13,993. Similarly, in The best way to address the issue of
Chhattisgarh the trend is generally the swelling population of pretrial
downward, from 4,921 to 4,961 to detainees in prisons is through appro-
4,128. In Rajasthan, the impact seems priate police–prosecution reforms and
to be more dramatic: the under-trial simultaneous improvement in judicial
population during these years receded processes. Prisons contribute to the
continuously, from 8,737 in 2001, to reform effort by registering the scale of
7,322 in 2002, and 6,584 in 2003. change and by tracking changes over
These are hopeful signs in compari- time. And, as the experience of CHRI
son to the all-India figures of pretrial has shown, prison visit programs have
detainees rising from 227,817 to a significant role to play in activating
234,884 and then showing a slight fall interagency coordination and opening
to 229,997.19 a public conversation about how to
By itself, a reduction in the number alleviate human suffering in custodial
of detainees is a good sign. But what institutions without jeopardizing the
really counts for reform is the means security of the society.

Justice Initiative 67
Pretrial Detention

Notes
R.K. Saxena is a consultant on prisions for the Commonwealth Human Rights Initiative.

1. In each state, the “controlling government department” comprises the minister in charge of
prisons together with the administrative secretary to the government. Also known as the Home
Department, it is a part of the government secretariat and not connected with the Human Rights
Commission.

2. The state was later bifurcated into Madhya Pradesh and Chhattisgarh.

3. The most recent published figures at the time of writing are for 2003. See Prison Statistics India
– 2002 and 2003 (Ministry of Home Affairs, National Crime Records Bureau [NCRB]),
htpp://ncrb.nic.in.

4. Apprehending agencies include different departments of the police, such as the Criminal
Investigation Department (CID), Anti-Corruption Department (ACD), Government Railway
Protection Force (GRPF), Anti-Terrorist Force (ATF), and the Special Task Force (STF). It does not
include the military.

5. Third Report (Government of India, National Police Commission [NPC], January 1980), 31.

6. “Preventive arrests” are arrests made to determine the commission of a crime by the individual
through the process of enquiry, investigation, and trial during the period of judicial custody.

7. Consultation Paper on Law Relating to Arrests (Law Commission of India, November 2000).

8. This is a common expression in India for describing the extraction of bribes and other undue
favors.

9. Criminal Procedure Code, 1973, Section 328(3).

10. The Criminal Procedure Code, 1973, Section 167(2)(b), states: “No Magistrate shall authorize
detention in any custody under this section unless the accused is produced before him.”

11. There is no agency in India that records the number of accused persons released on bail
and/or bond either within a territorial jurisdiction of courts or over a period of time by a court.
Hence it is not possible to track trends in such release or measure the rates of absconding.

12. State of Rajasthan v. Balchand, 1978 SCR (1), 535–536.

13. Motiram v. State of MP, 1979 SCR (1), 335 and 341.

14. After prolonged pressure by human rights activists, and with the purpose of encouraging
unsecured bail for indigent defendants, the underlined portions of the provisions on bail were
added to the Criminal Procedure Code by Parliament in June 2006:

436(1) When any person other than a person accused of a non-bailable offence is arrested or detained
without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is
prepared at any time while in the custody of such officer or at any stage of the proceeding before such
Court to give bail, such person shall be released on bail: provided that such officer or Court, if he or it
thinks fit, may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail
from such person discharge him on his executing a bond without sureties for his appearance as
hereinafter provided.

Explanation: Where a person is unable to give bail within a week of the date of his arrest, it shall
be sufficient grounds for the officer or court to presume that he is an indigent person for the
purpose of this proviso.

68 Open Society
Case Studies

15. Prison Statistics India, 2000, 2001, 2002, and 2003 (Ministry of Home Affairs, NCRB).

16. Some of these measures are in fact being introduced today, including: the provision of free
legal aid to the poor through the State Legal Services Authority; the convening of under-trial
prisoners’ review committees; monthly review of the cases of inmates pending trial for more than
six months; the introduction of fast-track courts (constituted to process cases pending in courts
through faster procedures); and the creation of jail courts, by which judicial magistrates come to
the prison to hold hearings.

17. In some of the prisons the inmate population is four to five times the capacity, as reported in
Prison Statistics India, 2004 (Ministry of Home Affairs, NCRB), http://ncrb.nic.in/prisons2004.
Although the reports do not provide prison-by-prison statistics on inmate populations, it can still
be seen that the overall prison population in the State of Jharkhand is three times the capacity of
prisons for the entire state. In such situations some of the prisons are heavily overcrowded—as
much as four to five times the actual capacity. The same is true in the states of Madhya Pradesh
and Bihar. In CHRI’s visits to the state of Chhattisgarh (2005), it found the population of jails at
Dantewara and Surajpur to be four and five times capacity, respectively.

18. It should be noted that individual functionaries of different agencies of the criminal justice
system are open to participating in workshops and seminars for open discussions. However, when
the individual agency is subjected to criticism, they become defensive and resist suggestions for
improvement. It takes hard work and perseverance to convince them to be open to change for
the better.

19. The hypothesis that CHRI’s intervention is at least partly responsible for a reduction of the
under-trial population in Madhya Pradesh, Chhattisgarh, and Rajasthan is bolstered by the
otherwise similar conditions across all states. That is, all states have the same criminal law and
procedural legislation, and similar levels of offending.

Justice Initiative 69
Pretrial Detention

On the Front Lines: Insights


from Malawi’s Paralegal
Advisory Service
Clifford Msiska writes from Malawi responsible for coordinating the ongo-
about the innovative use of paralegals ing activities of 38 paralegals in courts,
to reduce the number of pretrial prisons, and police stations in all four
detainees. judicial regions of Malawi. Thus, this
account of the evolution and impact of
PAS is an insider’s perspective on the
Introduction
challenges and success of the effort to
This report describes the introduction reform the pretrial detention process-
of the Paralegal Advisory Service es of Malawi.
(PAS) in Malawi in 2000 and its
impact on pretrial detention trends
Issues of Criminal Justice and
Pretrial Detention in Malawi
The criminal justice system in Malawi
Over 300 homicide remandees had been
suffers from many ailments. Prisons
awaiting trial for longer than two years. are overcrowded and inadequately
resourced, resulting in unhygienic
conditions for most inmates.2 Lay
and practice, as well as levels of prison magistrates often stand in for judges
congestion.1 The report explains the due to the lack of qualified judicial per-
logic behind the introduction of PAS, sonnel, which compromises the legal
as well as examining its contribution integrity of the pretrial process.3 The
to greater fairness and better gover- quantity of lawyers is insufficient to
nance in the criminal justice system. cope with the demands of the state
The initial purpose of PAS was to and the general public.4 Free legal aid
help reduce unlawful detention and is available only in capital cases.
prison overcrowding. PAS has made Courts are poorly resourced and have
significant progress toward these huge backlogs, especially in homicide
goals, and its work has had other cases.5 At the time of writing, 321
important benefits as well, including homicide remandees had been await-
invigorating public administration ing trial for longer than two years.
and cultivating patterns of good gover- Suspects are hastily arrested, typically
nance in the justice sector. before an investigation has been com-
The author of this report was close- pleted. Prosecutions are largely con-
ly involved in the development and ducted by police officers who are not
introduction of PAS. Today he is qualified in law. Before the advent of

70 Open Society
Case Studies

PAS, some prisoners were entirely for- late 1990s after Penal Reform
gotten by the justice system. A 1997 International (PRI), acting under the
report on the backlog of homicide aegis of the African Commission on
cases in Malawi found 57 accused Human and Peoples’ Rights, organ-
inmates in prison whose case files ized the first Pan-African Seminar
could not be traced.6 on Prison Conditions in Africa. Held
The problems with lengthy and in Kampala, Uganda, in 1996, the
indiscriminate pretrial detention in seminar drew human rights non-
Malawi are not new. During the rule governmental organizations (NGOs),
of the late Malawian dictator, Kamuzu senior prison officers, and govern-
Banda (president from 1964 to 1994), ment representatives from 40 African
the state could lawfully detain suspects countries (including Malawi). One of
without trial indefinitely. De jure, if the primary reports of the seminar
not necessarily de facto, the situation documented that in some African
improved one year before the coun- countries remand prisoners constitut-
try’s multiparty elections in 1994, ed up to 80 percent of the total prison
when Malawi acceded to the population and were detained for
International Covenant on Civil and many years before trial.9
Political Rights. The Covenant states
The movement to establish a
that “it shall not be the general rule
Paralegal Advisory Service drew
that persons awaiting trial shall be
important ideas and political legitima-
detained in custody”; that “everyone
charged with a criminal offence cy from some of the conclusions
shall have the right to be presumed reached at the Kampala meeting. The
innocent until proven guilty according Kampala Declaration on Prison
to the law”; and that accused persons Conditions in Africa, for example,
have the right “to be tried without insisted that dangerous and violent
undue delay.” 7 In 1995, Malawi adopt- crime could neither justify nor explain
ed a constitution with a bill of high rates of pretrial detention, as the
rights that recognizes the “rights of research reports found that “the
accused persons.” 8 Today, notwith- majority of detainees are in pretrial
standing a formal commitment to detention for petty crimes or serving
international standards and constitu- short terms of imprisonment.”10 And
tionally entrenched protections for the declaration strengthened the cause
accused persons, there is much to do of external review and expediting of
to make these commitments a reality. cases by reiterating commitments
found in the new Malawi Constitution,
Building a Case for including:
Paralegal Services g Judicial investigations and proceed-
The problems of pretrial detention ings should ensure that prisoners
in Malawi began to receive greater are kept in remand detention for
international public attention in the the shortest possible period, avoid-

Justice Initiative 71
Pretrial Detention

ing, for example, continual Rights (1999), which states that:


remands in custody by the court. “Bar Associations should in collabora-
tion with appropriate government
g There should be a system for regu-
institutions and NGOs enable parale-
lar review of the time detainees
gals to provide legal assistance to
spend on remand.
indigent suspects at the pretrial
Perhaps the most important asset stage.”13 The Plan of Action of
of the Kampala Declaration was the Ouagadougou Declaration on
its insistence on unconventional Accelerating Prison and Penal
approaches to justice and the vital role Reforms in Africa (2002) promotes
of NGOs. The declaration enjoined the detention of persons awaiting trial
“only as a last resort and for the short-
est time possible”; and the “greater use
of paralegals in the criminal process
The most important asset of the
to provide legal literacy, assistance
Kampala Declaration was its insistence and advice at a first aid level.” 14
on unconventional approaches to
Establishment of the
justice and the vital role of NGOs.
Paralegal Advisory Service
In 1999, with support from Penal
Reform International and provoked by
states to explore “informal avenues reports of the poor conditions in
that do not include the courts—such as which juvenile prisoners were being
diversion, mediation, and reconcilia- held, three local human rights NGOs
tion.” Moreover, “the role that non-gov- (Centre for Human Rights and
ernmental organisations have to play Rehabilitation—CHRR; Eye of the
in prisons is important and should be Child—EYC; and Malawi Centre for
recognised by all governments. They Advice, Research and Education on
should have easy access to places of Rights—CARER) conducted a study of
detention and their involvement the conditions of juveniles in three
should be encouraged.” 11 These exhor- main prisons in Malawi (Zomba
tations were not empty propositions. Central Prison, Chichiri Prison, and
One presenter, Amanda Dissel, of the Maula Prison).15 The goal was simple:
Johannesburg-based Centre for the to find out how many juveniles were
Study of Violence and Reconciliation, there and why.
specifically recommended that “parale-
The study found that of the 179
gals, articled clerks and unqualified
young people in the juvenile section
legal persons should be allowed to
in Zomba Central Prison, not one
assist prisoners.” 12
had been lawfully detained. In some
This idea was picked up in the cases, the remand warrants had
Dakar Declaration of the African expired; in most, the detainees in the
Commission on Human and Peoples’ juvenile wing were already adults.

72 Open Society
Case Studies

Significantly, the study found that International Development (DFID),


none had been legally advised or rep- the Malawi Ministry of Justice and
resented and that none had committed Constitutional Affairs, and the Malawi
offenses that were “so depraved” or Human Rights Commission (a consti-
behaved in a manner “so unruly” as to tutional body), PRI organized a
justify remand to prison.16 More fun- regional seminar titled “Juvenile
damentally, the study showed that the Justice in Malawi: Time for Reform.” 17
rest of the justice system exercised no There was active participation of
oversight of the judiciary or the police. experts from a broad cross-section
The result of the study was to rec-
ommend setting up a paralegal service
to work in the prisons and monitor
remand cases. The option to introduce The paralegals could bring basic legal
paralegal services in the criminal jus- services to those who needed it most
tice system made sense because para-
legals could be more accessible com- by working in prisons, police stations,
pared to lawyers, who were urban and courts on a daily basis.
based and whose legal fees were
beyond the reach of most Malawians.
The paralegals could bring basic legal
services to those who needed it most of the criminal justice system in
by working in prisons, police stations, Malawi as well as experts from other
and courts on a daily basis. Moreover, sub-Saharan African countries and
paralegals could reach hundreds of Europe. The regional seminar recom-
prisoners at once through their legal mended that:
clinics, unlike lawyers who work on a
There should be a limit on the period a
one-to-one basis.
juvenile can be kept on remand.
At the same time, the aforemen- Juveniles under 14 years accused of a
tioned three NGOs recognized they minor offence should not be remanded
would need additional legitimacy and in custody for longer than three months.
support for such an idea from within Juveniles aged 14 to 18 should not be in
the region. The Kampala Declaration custody for more than 12 months if
conveniently had recommended that: accused of a serious offence and for no
“Regional seminars should be con- longer than three months if accused of a
vened to discuss regional initiatives minor offence.18
and disseminate the findings and pro-
ceedings of these seminars through- This recommendation was neces-
out the continent, and enhance bilat- sary because Malawian law does not
eral, multilateral and international exclude juveniles from being held on
co-operation, assistance and network- remand in police cells, reformatory
ing.” And so, in late 1999 and with schools, and prisons while awaiting
support from UNICEF Malawi, the trial. In Malawi, most juveniles who
United Kingdom’s Department for are suspected of having committed

Justice Initiative 73
Pretrial Detention

murder or manslaughter may be At the outset, the pilot PAS project


remanded for more than two years focused on the homicide remand
before their cases are tried. The backlog as DFID had provided funds
human rights NGOs that attended for its reduction. PAS paralegals edu-
the seminar committed themselves cated prisoners awaiting trial on capi-
to establishing a “paralegal advisory tal offenses in the substantive law, pro-
service in the four main prisons in cedures, and basic evidentiary rules
Malawi.” 19 surrounding the charge of murder or
manslaughter. At the time, many
homicide remand prisoners awaited
trial for up to 10 years. Unsurprisingly,
homicide or manslaughter remand
prisoners were disproportionately rep-
Before the project, many
resented among the pretrial detention
remand prisioners waited population. Most homicide remand
up to 10 years for a trial. prisoners were not ready to plead
guilty to a lesser charge of manslaugh-
ter because they did not understand
the difference between murder and
manslaughter. And, because the direc-
Evolution of the Paralegal tor of public prosecutions sought to
Advisory Service ensure that every homicide investiga-
In May 2000, together with local tion was thorough enough to win a
NGOs and with financial assistance conviction, the state was slow to take
from the DFID-funded Malawi Safety, accused persons to court for trial. In
Security and Access to Justice the end, homicide remand prisoners
(MaSSAJ) Programme, PRI estab- remained in detention for years; at
lished the Paralegal Advisory Service times longer than the period they
with eight paralegals working in would have been incarcerated had they
Malawi’s four main prisons (Chichiri, been convicted and sentenced upon a
Maula, Mzuzu and Zomba Central
guilty plea on manslaughter charges.
prisons). The paralegals are centrally
PAS’s paralegals observed 90 capi-
coordinated by a PAS national coordi-
tal trials in the High Court. They
nator and employed by four NGOs
working in partnership with criminal found that most homicide charges
justice agencies.20 The paralegals are were reduced to manslaughter. The
lay workers with elementary training paralegals also attended cases involv-
in law.21 The Paralegal Advisory ing vulnerable groups in prisons,
Service is assisted by an advisory namely, young offenders, women, and
council comprising senior govern- the mentally and terminally ill, to
ment officials and representatives assist in their early release. The para-
from the judiciary.22 legals then set about finding out what
assistance prisoners lacked.

74 Open Society
Case Studies

First, they found that prisoners did two years of PAS’s operation, 714 para-
not understand the law. PAS therefore legal aid clinics were held, educating
developed a series of practical work- 14,600 prisoners.25 By mid 2007,
shops to inform prisoners on the crim- some 3,500 clinics had educated in
inal law and procedure and enable excess of 100,000 prisoners.
them to better represent themselves in Second, they learned that many
court (as they could not afford the remand prisoners were held unlawful-
services of a lawyer). Moreover, PAS ly, were “overstaying” on remand, or
developed a paralegal aid clinic work- did not know how to gain access to
shop on bail. This involves paralegals’ bail. In response, paralegals provide
interviewing awaiting trial prisoners legal advice and assistance to remand
and assisting those who wish to com- prisoners who are being detained
plete a standard bail application form unlawfully, inappropriately, or for
and then lodge this with the appropri-
ate court. The standardized bail appli-
cation form was developed by PAS in PAS developed a series of practical work-
consultation with the judiciary. These shops to inform prisoners on the criminal
forms simplify and expedite the bail
application process as judicial officers law and procedure and enable them to
are provided with relevant information better represent themselves in court.
to come to a pretrial detention or
release ruling. Typically, prison
authorities check the completed forms undue lengths of time, with priority
against prisoners’ files and, where given to vulnerable groups such as
appropriate, stamp the details record- women with small children and juve-
ed in the forms as accurate. In this niles.26
way a number of uncontested bail Third, they noticed that the crimi-
applications can be heard together by nal justice agencies themselves were
one magistrate and an order can be poorly equipped, resourced, and
made for the pretrial release of a num- trained and were not talking to one
ber of accused persons in one hearing. another enough. Paralegals adopted a
Up to 30 bail applications can be heard pragmatic approach by seeking part-
simultaneously in this manner.23 nerships with these agencies. They
Paralegals use interactive drama adopted a supportive role and reinvig-
techniques to encourage the participa- orated Court Users’ Committee meet-
tion of prisoners at regular paralegal ings. These committees operate at the
aid clinics. It is not unusual for up to local, regional, and national levels to
200 prisoners to attend such a clinic. identify problems in the criminal jus-
The emphasis in the clinics is placed tice process and come up with local
on self help. For example, they address solutions. The paralegal team leader in
how an accused person can plead in a magisterial district convenes (and
mitigation or a detainee can conduct pays for) the monthly local committee
his own bail application.24 In the first meetings with prison officials, police

Justice Initiative 75
Pretrial Detention

Table 1: Prison population in December 1999

Convicted Remand To t a l
Male Female Juvenile Male Female Juvenile

All Prisons 4,265 30 198 2,258 44 164 6,959

(4,493) 64.6% (2,466) 35.4% 100%

Source: Malawi Prison Service

chiefs, and judicial officers to check on ed by police officers) by listing the


their progress and address any prob- many minor cases involving accused
lems or complaints. persons who have been in detention
The committees have proved effec- for long periods of time, not been
tive in improving communication arraigned before a court, or are eligible
and coordination between criminal for bail.
justice agencies and addressing local Over time, PAS discovered a need
problems. In one instance, paralegals, to go backward in the penal chain,
supported by prison officers, alerted because many problems stemmed in
a committee of the high level of large part from detention or charging
overcrowding at a local prison. In decisions made by the police and the
response, the chief magistrate visited courts. Consequently, in 2003 PAS
the prison the next day with three extended its services to the courts and
additional magistrates, police prosecu- police to provide a broader legal aid
tors, and court clerks and released a service to all those in conflict with the
number of prisoners awaiting trial. law at the outset of the criminal justice
The local committees are not expen- process.
sive to administer. Some US$10 is In mid-2007, PAS employed 38
budgeted per meeting to cover the cost paralegals working in 24 prisons (cov-
of local transport and refreshments. ering 85 percent of the prison popula-
Committees also discuss reducing the tion), 5 courts, and 5 police stations.
courts’ caseload by referring appropri- PAS provides legal assistance and
ate cases to traditional authorities for advice to poor people using non-
local settlement, as well as encourag- lawyers on three different “front lines”
ing the police to investigate alleged of the criminal justice system—in
crimes before suspects are arrested prison, in police stations, and at court.
and remanded in custody rather than PAS seeks to reduce not only the fre-
afterwards.27 quency of the use of pretrial detention
Paralegals also assist police prose- but also to shorten its duration by
cuting officers (in Malawi, prosecu- improving the efficiency of the crimi-
tions in the lower courts are conduct- nal justice system. By maintaining a

76 Open Society
Case Studies

Table 2: Prison population in January 2007

Convicted Remand To t a l
Male Female Juvenile Male Female Juvenile

All prisons 8,870 98 358 1,823 55 62 11,266

(9,326) 82.8% (1,940) 17.2% 100%

Source: Malawi Prison Service

constant dialogue with the Malawi At the end of 1999, the first period
Prison Service, Malawi Police Service, of time for which reliable information
and judiciary, PAS has enabled the is available, there were 6,959 inmates
justice system to operate more in prison, of whom 35 percent were on
smoothly. Since the project’s inception remand. Table 1 shows this propor-
in May 2000, none of the criminal jus- tion, as well as the number of males,
tice agencies has complained about females, and juveniles in prison at this
the presence of paralegals at police sta- time.
tions, courts, or prisons. Since 2000, the prison population
has grown. In January 2007, there
Assessing the Impact of the were more than 11,000 people in
Paralegal Advisory Service prison in Malawi. Between 1999 and
A meaningful assessment of the 2007, the size of the remand popula-
impact of PAS requires an examina- tion diminished, however. In 2007
tion of trends in detention and levels there were fewer than 2,000 inmates
of prison congestion before and after on remand, and they constituted only
paralegals began to offer assistance to 17 percent of all prisoners (Table 2).
inmates. Although before and after
comparisons are not perfectly suited The Contribution and Logic of
for this analysis, the figures above the Paralegal Advisory Service
strongly suggest PAS has made an Credit for these advances cannot be
important independent contribution fully attributed to PAS. Other factors
to legal aid in Malawi and the reduc- can explain the decrease in the propor-
tion in the size of the remand popula- tion of inmates on remand, including
tion in particular. the length of sentences, the volume of
Prison data are sketchy for the arrest, and the speed of police investi-
period before 2000, but we were told gations. Still, many criminal justice
that the remand population constitut- stakeholders believe that PAS has
ed between 40 percent and 50 percent played an instrumental role in reduc-
of the number of inmates in prison ing the size of the remand population.
in Malawi in the years 1996 to 1999. One analyst, closely involved in the

Justice Initiative 77
Pretrial Detention

development of PAS, claims that dur- themselves. Magistrates have com-


ing the first four years of its operation mented on the more sophisticated
PAS “facilitated the release of approxi- understanding of the law demonstrat-
mately 2,000 prisoners” and “reduced ed by prisoners in court, who also
substantially the number of persons prove better able to argue for their
unlawfully remanded in prison and release on bail.31 Magistrates have con-
stabilized the remand population at 22 sistently observed that having clinics
percent (from 50 percent before the in prison to educate prisoners and
scheme began).”28 Moreover, an inde- enable them to represent themselves
pendent evaluation concluded: has lightened their caseload and
moved cases more swiftly through the
Since the Paralegal Advisory Service
system. Unsurprisingly, PAS has won
(PAS) came into operation in May 2000,
the support of the senior judiciary,
the Service has become an important
actor in the protection of poor people in
including the firm endorsement of the
conflict with the law. All the interviewed chief justice of Malawi.
stakeholders praised the programme and Second, paralegals provide a check
spontaneously called it indispensable, on administrative routines, especially
bridge building, voices of the voiceless inside the police service. Paralegals
and a whistle-blower, making it possible review every remand warrant and
for the management to address certain
make sure people are lawfully
bad practices within the system. Many
detained. The number of illegal
identified the programme as one of the
main reasons why the number of reman- remand warrants used by police has
dees has dropped significantly.29 fallen from the hundreds at the begin-
ning of the project to a few dozen
today. The police can no longer dump
By contributing to the reduction individuals in prisons, as they are chal-
lenged by prison officers at the month-
in the remand population, paralegals
ly Court Users’ Committee meeting
have changed the criminal justice and held to account by magistrates
system in several important ways. when they visit prisons and conduct
“camp courts.”
Camp courts are, in essence, mag-
In addition, by contributing to the istrates’ courts conducted in prison.32
reduction in the remand population, In Malawi, encouraged by PAS, magis-
paralegals have changed the criminal trates go to prison with a court clerk
justice system in several important and police prosecutor and screen
ways. 30 lists—prepared by paralegals—of
First, between May 2000 and May unlawfully or unnecessarily detained
2007, paralegals enabled 104,000 persons. In this way magistrates can
prisoners to represent themselves at immediately release persons who have
court and argue for bail cogently, been detained unlawfully or for whom
enter a plea in mitigation, or defend the prosecutor has no objection to bail.

78 Open Society
Case Studies

Magistrates can also fix trial dates for which a court imposes a sentence of
detainees whose cases have been imprisonment subject to confirmation
remanded for long periods of time. or review by the High Court. Failure to
Camp courts are effective in reducing comply with this practice has resulted
prison congestion and in restoring in some prisoners’ staying on in
prisoners’ confidence in the justice prison illegally when they should have
system by seeing justice in action.33 been released.35
Between May 2003 and December Fifth, paralegals have created space
2006, 88 such camp courts were in police stations to divert people out of
held with PAS support, resulting in the criminal justice process. Paralegals
the release of hundreds of remand work at the police station level to assist
prisoners. with the screening of juveniles in con-
Third, paralegals inculcate rigor in flict with the law. Paralegals interview
docket reviews. The paralegals follow these young people according to a form
up with the court and prosecution to
make sure cases are not forgotten and
old cases are processed as a priority by Following an evaluation of a pilot scheme in
the courts. Consequently, remand
prisoners are no longer lost or over-
four police stations, the police recommended
looked by the criminal justice system. that PAS extend its diversionary services
Fourth, paralegals have facilitated to all police stations.
interagency accountability. As men-
tioned above, paralegals encourage
magistrates to visit prisons to review pre-agreed with the police and make
the remand caseload. Working from a recommendations for disposal that
list prepared by the paralegals and dis- police follow for the most part.
cussed with the police prosecutor in Juveniles are thus diverted from the
advance, the magistrate screens the formal criminal justice system right
remand caseload, discharging some after arrest. Following an evaluation of
and granting bail to others. In support a pilot scheme in four police stations
of PAS advocacy for such work, the (jointly conducted by PAS and the
first Judicial Circular issued by the police), the police recommended at a
chief justice in February 2003 encour- national meeting in September 2004
ages magistrates to visit prisons to that PAS extend its diversionary servic-
detect illegal detention of suspects and es to all police stations. A shortage of
accused persons and violations of human resources limited PAS to
constitutional rights, and when such extending its services to only one addi-
violations are uncovered to take neces- tional police station. Between 2004
sary action. In the same year, the and 2006, PAS facilitated the diver-
chief justice issued a second Judicial sion of 354 juveniles.
Circular requiring magistrates to Sixth, paralegals are expediting the
check warrants of commitment in judicial process. Following paralegal

Justice Initiative 79
Pretrial Detention

clinics on homicide law and pleas, their hard work, and their impact on
prisoners are now entering informed the atmosphere in the prison con-
pleas to their charges, saving consider- tributed greatly to their gradual accept-
able court time and expenses. In 2003, ance.39 Conducting joint trainings
33 homicide remandees indicated to with prison staff and paralegals, a
paralegals they were ready to plead majority of prison officials have
guilty to manslaughter, at which point reported that paralegals have won
they were referred to the Ministry of their respect through their close atten-
Justice’s Department of Legal Aid. tion to follow-up of individual cases
After consultation with one of the with the police and courts, as well as
seven lawyers in the department, 29 their discreet conduct. Generally, para-
defendants entered guilty pleas and legals facilitate the release on bail of
were sentenced.36 The actual savings many accused persons. Paralegals also
for the judiciary because the trials help the speedy disposal of cases by
were avoided was US$33,000.37 providing information to police and
Finally, paralegals provoke ques- courts on specific cases.
tions about resource management in Another key challenge to overcome
the justice system. By working in was access to police stations, where
partnership with the criminal justice most abuse against detainees takes
agencies directly and through monthly place shortly after arrest. Initially, the
meetings of the Court Users’ police were reluctant to cooperate and
Committees, questions about the use allow their space to be invaded by
of scarce resources are raised. A 2002 NGOs. This reluctance was overcome
PAS report quoted one senior legal when PAS offered to assist the police
professional as saying “without them trace parents/guardians of juvenile
[the paralegals], the whole process suspects. Over the course of a 12-
would go back to sleep.”38 month pilot program in four police
stations, paralegals worked with the
Special Challenges police to trace parents and divert
There were of course a number of young offenders. Abuse reportedly still
obstacles to the introduction of PAS. occurs (especially in the police stations
Before paralegals earned the apprecia- where PAS does not work), but the
tion of the different agencies of the presence of paralegals has a deterrent
justice system, they had to clarify and effect in the target police stations and
advertise their benefits for each sepa- encourages greater professionalism
rate institution. on the part of the investigating offi-
In the prisons, initial mistrust cers. As with prisons, a strict code of
could not be assuaged solely by the conduct guiding the work of the para-
signing of a strict code of conduct. The legals while in police stations was
daily presence in the prisons of parale- designed with the police service.
gals, their willingness to work with Finally, the Malawi Law Society
and through prison officers, their suc- fears and resents the perceived com-
cess in following up individual cases, petition from the paralegals. The para-

80 Open Society
Case Studies

legals have attempted to defuse this Legal aid should be defined as broadly as
concern by emphasizing that they do possible to include legal advice, assis-
the work that does not need a lawyer tance, representation, education, and
mechanisms for alternative dispute reso-
and, more attractively, create work for
lution; and to include a wide range of
lawyers interested in criminal matters
stakeholders, such as non-governmental
by facilitating the preparation of cases organizations, religious and non-reli-
and so enabling lawyers to focus on gious charitable organizations, profes-
complicated issues where their time sional bodies and associations, and aca-
and expertise can be used best.40 demic institutions.41

Sustainability of Paralegal The Lilongwe Declaration also


Advisory Service Interventions emphasizes the scarcity of legal pro-
The strategy for sustaining the work of fessionals as a reason to support para-
legals.
PAS has taken several tracks. One
emphasizes the efficiency gains and
It has all too often been observed that
economic benefits of PAS to the there are not enough lawyers in African
justice system as a whole. Another countries to provide legal aid services
seeks to obtain recognition of the required by the hundreds of thousands
paralegals as a professional cadre. of persons who are affected by the crimi-
A third endeavors to create a role and nal justice systems. It is also widely rec-
demand inside the legal profession for ognized that the only feasible way of
paralegals. delivering effective legal aid to the maxi-
mum number of persons is to rely on
The paralegals have been recog-
non-lawyers, including law students,
nized in two draft pieces of legislation paralegals, and legal assistants. These
covering prisons and legal aid, which paralegals and legal assistants can pro-
at the time of writing are yet to be vide access to justice system for persons
passed into law. Moreover, the Malawi subjected to it, assist criminal defen-
Law Society is considering the inclu- dants, and provide knowledge and train-
sion of paralegals in a forthcoming ing to those affected by the system that
review of the Legal Education and will enable rights to be effectively assert-
ed. An effective legal aid system should
Legal Practitioners Act of 1965.
employ complementary legal and law-
In 2004, PRI in conjunction with the
related services by paralegals and legal
Malawi Ministry of Justice and assistants.42
Constitutional Affairs organized the
Lilongwe Conference titled “Legal Aid The growing pride in PAS as a
in the Criminal Justice System in home-grown “export product” was evi-
Africa: The role of lawyers, non- denced by the Minister of Justice,
lawyers and other service providers.” Honorable Henry Phoya, in his speech
The conference adopted the Lilongwe to open the Lilongwe Conference:
Declaration on Accessing Legal Aid in
the Criminal Justice System in Africa. It is thus an honor for the Malawi
According to the Declaration: Government that Malawi Paralegal

Justice Initiative 81
Pretrial Detention

Advisory Services has been internation- Another Rationale for Paralegals


ally recognized by the UN Habitat Best Legal aid poses a vexing problem for
Practices Awards that are given out every
all governments because of its poten-
two years. This recognition extends to
tially high costs as crime rates and the
our judiciary, prison and police services
who are trying to make justice more number of accused persons increase.
accessible to ordinary people of Malawi. Costs are spiraling because of the
exponential growth in the number of
The attractiveness of the experience defendants, and few cost-recovery
of PAS abroad is helpful, too, in mechanisms work well because of
promoting its institutionalization the economic disempowerment of the
in Malawi. In sub-Saharan Africa, beneficiaries of the service. Some
proponents of expanded access to legal
representation therefore advertise the
The PAS scheme has been replicated overall cost effectiveness of the service
and value for money. These benefits
in Benin, Kenya, Uganda, and Niger are not easily measured, but the role
and PAS has been invited to start that legal aid can play as an engine
to improve the effectiveness and
prison-based pilot schemes in Lesotho, efficiency of the criminal justice sys-
Liberia, Tanzania, and Zambia. tem cannot be overemphasized. The
results achieved by PAS are telling:
non-lawyers are cheaper than lawyers
Malawi is far from unique in the small and can, given proper training, enable
number of lawyers available.43 The people to defend themselves and
PAS scheme has been replicated in provide appropriate advice and assis-
Benin (2002), Kenya (2004), Uganda tance that benefit the maximum num-
(2005), and Niger (2006) and PAS has ber of people.
been invited to start prison-based pilot In a 2002 evaluation report PAS
schemes in Lesotho, Liberia, Tanzania, was commended for using “relatively
and Zambia. few resources to achieve maximum
Still, the future of paralegals in benefit for users of the criminal justice
Malawi is neither assured nor protect- system in Malawi. Through well
ed by law. The real challenge for sus- focussed assistance, it marshals good-
taining the interventions of paralegals will and resources already present in
in the criminal justice system is lack of the system to best effect, by promoting
funds. The government, criminal jus- a holistic view and furthering commu-
tice agencies, and civil society organi- nication between actors.” 44 The opera-
zations are looking to donors for tional cost of one paralegal—salary,
resources to design and implement stationery, transport, and communica-
programs that would effectively tackle tion facilities—is less than US$450
pretrial detention and/or overcrowd- per month. During one month, a para-
ing in penal institutions. legal can effectively have an impact on
hundreds of cases.

82 Open Society
Case Studies

Conclusion ernment—and the limitation on its


A review of paralegal services in Africa independence this implies—is a price
concluded that “the Malawi Paralegal worth paying. Indeed, an evaluation of
Advice Service (PAS) may be the PAS concluded that the “highly coop-
strongest example of paralegals work- erative and trusting spirit” the parale-
ing in cooperation with govern- gals have developed with the criminal
ment.” 45 The review warns, however, justice agencies is the key to its suc-
that “a close relationship with govern- cess and sustainability.47 This gives
ment may cost in independence. PAS paralegals daily access to prisons and
paralegals cannot, for example, com- detainees. Moreover, because PAS
ment publicly about the conditions in seeks to assist the criminal justice sys-
the prisons where they work; this is tem as a whole to function better, and
one of the conditions under which not to find fault with individual agen-
they are granted access.”46 cies in the system, its inputs and con-
It would appear that in PAS’s case, tributions are valued by the justice sys-
a close working relationship with gov- tem as a whole.

Notes

Clifford Msiska is director, Paralegal Advisory Service Institute, Lilongwe, Malawi.

1. For the purposes of this paper, a pretrial detainee is a prisoner who has been charged with a
crime or crimes and is awaiting trial or the finalization of his trial by any court of first instance.
The term “pretrial detainee” and “remand prisoner” are used interchangeably in this paper.

2. Since 1996, when there was an average daily population of 4,500 inmates and prisons were
crowded, the population in custody has grown to over 10,500 in 2006 while only a few hundred
prison spaces have been added as a result of the reopening of three old prisons.

3. Malawi has 15 judges of the High Court, 7 judges of the Supreme Court, and 171 magistrates
for a population of approximately 13 million people.

4. According to the Malawi Legal Aid Society, Malawi had 185 certified legal practitioners in early
2006.

5. The homicide backlog number in the summer of 2006 was over 800 cases.

6. Files were with neither the police nor the Directorate of Public Prosecutions. See: Final Report
on the Homicide Backlog (Lilongwe: The British Council, 1997); see also Michael Wines, “The
Forgotten of Africa – Wasting Away in Jails Without Trial,” New York Times, November 6, 2005.

7. These three provisions are taken from, respectively, Articles 9(3), 14(2) and 14(3)(c) of the
International Covenant on Civil and Political Rights, http://www.unhchr.ch/html/menu3/b/
a_ccpr.htm.

8. Section 42(2)(b) of the 1995 Constitution of the Republic of Malawi states that “Every person
arrested for, or accused of, the alleged commission of an offence shall, in addition to the rights
which he or she has as a detained person, have the right as soon as it is reasonably possible, but
not later than 48 hours after the arrest, or if the period of 48 hours expires outside ordinary court
hours or on a day which is not a court day, the first court day after such expiry, to be brought
before an independent and impartial court of law and to be charged or to be informed of the
reason for his or her further detention, failing which he or she shall be released.” Further, Section
42(2)(f)(i) states that: “Every person arrested for or accused of, the alleged commission of the

Justice Initiative 83
Pretrial Detention

offence shall, in addition to the rights which he or she has as a detained person, have the right to
public trial before an independent and impartial court of law within a reasonable time after
having been charged.”
9. Dirk van Zyl Smit, “Report of the Rapporteur General,” in Prison Conditions in Africa: Report of
a Pan-African Seminar, Kampala, September 19–21, 1996 (Paris: Penal Reform International
[PRI], 1997).
10. The Kampala Declaration on Prison Conditions in Africa, http://www.penalreform.org/publica-
tions/reports/brf-1996-kampala-declaration-en.pdf.
11. Paragraph 5(h) of the Plan of Action of the Kampala Declaration on Prison Conditions in Africa,
http://www.penalreform.org/publications/reports/brf-1996-kampala-declaration-en.pdf.
12. Amanda Dissel, “Commentary on the Kampala Declaration,” in Prison Conditions in Africa
(PRI, 1997).
13. Dakar declaration and recommendations,
http://www.chr.up.ac.za/hr_docs/african/docs/achpr/achpr2.doc.
14. The Ouagadougou Declaration and Plan of Action on Accelerating Prison and Penal Reforms in
Africa, 2002, http://www.achpr.org/english/declarations/declaration_ouagadougou_en.html.
15. See Juvenile justice in Malawi – Time for Reform? Findings of Paralegal case review of Juveniles in
Malawi’s Prisons (CARER, September 1999); Dorothy Jolofani, Juvenile offenders: From Punishment
to Rehabilitation. A Study of the Juvenile Court in Malawi, 1999 (unpublished).
16. Section 16(1)(i)of the Children and Young Persons Act of 1969 permits detention only in such
circumstances.
17. Juvenile Justice in Malawi: Time for Reform, Report of the Regional Seminar, Lilongwe,
November 23–25, 1999 (Lilongwe: PRI), 21–22 and Annex 2, fact sheet 1.
18. Ibid., 39, para. 4.
19. Ibid., 43, para. 6.
20. These NGOs are: Eye of the Child (EYC); Malawi Centre for Advice, Research and Education
on Rights (CARER); Centre for Legal Assistance (CELA); and Youth Watch Society (YOWSO).
21. PAS paralegals must hold a high school diploma and undergo a month-long legal training
course.
22. The PAS advisory council comprises the chief commissioner of prisons, the chairperson of
the Prison Inspectorate, the chairperson of the Core Group on Criminal Justice Reform, the
chairperson of the National Juvenile Justice Forum, the Director of Public Prosecutions, a
representative of the Legal Aid Department, the head of prosecutions for the police, and the four
chief resident magistrates who are responsible for each judicial region of Malawi.
23. Adam Stapleton, Reducing Pre-trial Detention. An Index on ‘Good Practices’ developed in Africa
and elsewhere, (PRI, 2005), 41, http://www.penalreform.org/publications/manuals/man-2005-
pretrial-detention-en.pdf.
24. Adam Stapleton, Energizing the criminal justice system. Malawi’s paralegal advisory service,
http://www.id21.org/id21ext/insights43art6.html.
25. Ibid.
26. Ibid.
27. Stapleton, Reducing Pre-trial Detention, 32.
28. Ibid., 42; see also Hillery Anderson, “Justice Delayed in Malawi’s Criminal Justice System.
Paralegals vs Lawyers,” International Journal of Criminal Justice Sciences 1, Issue 1 (January 2006), 5.
29. Thomas Hansen, “Independent evaluation 2 of the PAS for DFID” (Copenhagen: Danish

84 Open Society
Case Studies

Institute for Human Rights [DIHR], 2004), 3.

30. Fergus Kerrigan, “Independent evaluation 1 of the PAS for DFID” (DIHR, 2002).

31. Ibid., 23; see also Freedom inside the walls (video, 51 min.), English/French (PRI, 2005).

32. The word “court” posed a problem in Malawi, and the formulation “Prison Screening Session”
was adopted to describe more accurately the function of this mechanism and avoid any suggestion
that bail decisions are being made hidden from public view.

33. Stapleton, Reducing Pre-trial Detention, 59.

34. Judicial Circular No. 1 of 2003, Ref. No. H/C/CJ/143, para.2.

35. Judicial Circular No. 2 of 2003, Ref. No. H/C/CJ/143, paras. 1 and 2.

36. One decided not to plead and three were not produced at court on the day.

37. In 2005, PAS-PRI further submitted a note to the Chief Justice, Legal Aid, and DPP office on
ways to clear the homicide backlog. A review of cases by the paralegals showed that almost half of
the caseload could be disposed of, including 30 percent by way of plea, another 10 percent could
be dismissed because the defense was irredeemably prejudiced by the delay in trial over which the
defendant had no control; and an additional 8 percent could be dismissed as they had yet to be
committed for trial and for the same reasons the defense was prejudiced.

38. Kerrigan, “Independent evaluation 1” (DIHR), 44.

29. Of the paralegals 40 percent are women. They work in the male sections of the prisons.
Prison officers have remarked how the presence of women (many of whom are in their early 20s)
calms prisoners and relaxes the prison atmosphere.

40. Despite requests from the judiciary, PAS does not appear in the lower courts on behalf of
accused persons, in part because legal representation is seen to be the strict province of trained
lawyers, but mainly because it is not an efficient use of the time of the paralegal, who could be
tied up in a court that may deal with 3 to 5 cases in the course of a morning. PAS aims at a ratio
of one paralegal for every 100 prisoners.

41. The Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa
(Lilongwe, 2004), para 1, http://www.law.northwestern.edu/legalclinic/LilongweLegalAidDeclara-
tion.pdf. The Lilongwe Declaration was adopted at the 40th Ordinary Session of the African
Commission on Human and Peoples’ Rights, held in Banjul, November 2006.

42. The Lilongwe Declaration, para 7.

43. Niger has 77 lawyers for 11 million inhabitants, Tanzania has 723 for 35 million, and Senegal
has 300 for 10 million. Only South Africa (17,500 for 45 million) and Kenya (4,000 for 33 million)
have adequate numbers of trained lawyers, and yet in these countries, too, lawyers are
overwhelmingly concentrated in the major cities and towns.

44. Kerrigan, “Independent evaluation 1” (DIHR), 3.

45. Vivek Maru, Between Law and Society: Paralegals and the Provision of Primary Justice Services in
Sierra Leone, (New York: Open Society Justice Initiative, 2006), 26.

46. Ibid, 26.

47. Stapelton, Energizing the Criminal Justice System,


http://www.id21.org/id21ext/insights43art6.html

Justice Initiative 85
Pretrial Detention

Building and Sustaining


Change: Pretrial Detention
Reform in Nigeria
Pretrial detainees account for nearly persons accused or suspected of seri-
two-thirds of Nigeria’s prisoner popu- ous offenses such as capital crimes or
lation. Anthony Nwapa reports on an rape, are not uncommon.
innovative pilot project that addresses This paper describes the problem
the root causes of the country’s pretri- of pretrial detention in the Nigerian
al detention crisis. prison system, analyzes its origins and
causes, and reports on a project initi-
Three outstanding features charac-
ated by the Open Society Justice
terize Nigeria’s prison and criminal
Initiative and the Nigerian Legal Aid
justice systems. First, its total number
Council to address this problem on a
of 40,000 sentenced prisoners and
sustainable basis.
pretrial detainees is relatively small for
a country with a population of some
130 million people. Second, a dispro- Country and Institutional
portionately high number of Nigeria’s Background
prisoners are pretrial detainees. For Nigeria is a Federal Republic com-
the last two decades, pretrial detainees prising 36 states and the Federal
have composed nearly two-thirds of Capital Territory, Abuja. Nigeria occu-
the country’s overall prison popula- pies an area of 924,000 square kilo-
tion. Third, pretrial detention in meters, inhabited by more than 130
Nigeria is unduly prolonged, with an million people comprising 250 ethnic
average duration of 3.7 years per and national groups, of whom an esti-
detainee (Table 1). Pretrial detention mated 60 percent subsist below the
periods of over 10 years, especially for poverty line. While a majority of the

Table 1: Nigerian Prison Statistics, January 2006 1


Total prison population 40,444
Number of remand (awaiting trial) prisoners 26,289
Number of sentenced persons 14,155
Overall average duration of pretrial detention 3.7 years

86 Open Society
Case Studies

Table 2: Role Allocation in the Nigerian Criminal Justice System


Activity/Role Responsible institution Location
Investigation Police Federal
Arrest Police Federal
Evidence collection Police Federal
Detention/Custody Police/Prisons Federal
Legal Advice & Prosecution Police/Ministry of Justice (Attorney-General) Federal/State
Criminal Trial Courts Federal/State
Appeals Courts Federal/State
Sentence/Imprisonment Prisons Federal

population lives in rural areas, the ernment and states have concurrent
country is undergoing a process of legislative powers over matters in the
rapid urbanization. Concurrent Legislative List, federally
Until the advent of a civilian applicable legislation supersedes state
administration in 1999, Nigeria was legislation in cases of conflict on the
ruled by the military for all but 10 of same subject. The federal government
its first 39 years as an independent is precluded from legislating or mak-
country, through a succession of seven ing policy on matters outside the enu-
military rulers, six successful military merated matters in the Exclusive and
coups, and several unsuccessful coup Concurrent Legislative Lists.
attempts. This record of prolonged Criminal justice administration
political instability undermined the lies within the concurrent powers
development of constitutional rights of the federal and state governments.
and the institutions for their protec- The principal investigating agency
tion, including, especially, the police, for all crimes is the Nigeria Police
the courts, and other agencies of the Force (NPF), which is an exclusively
criminal justice system. federal institution. The police have
exclusive powers over the collection,
To understand the mechanics of
analysis, and preservation of evidence.
pretrial detention in Nigeria, it is nec-
When investigation of a case involves
essary to understand the distribution
the arrest or detention of suspects,
of responsibilities within the criminal
the police and prisons—both federal
justice system in Nigeria’s federal
institutions—exercise these powers
structure. Nigeria has three tiers of
(Table 2).
government: the federal government,
The prosecutorial authorities evalu-
states, and local governments. The
ate the evidence collected by the
powers of the federal government are
police, with ultimate control over
enumerated in the Exclusive
criminal prosecution belonging to the
Legislative List of Nigeria’s 1999
respective ministries of justice. The
Constitution. While the federal gov-

Justice Initiative 87
Pretrial Detention

federation and the states have min- allocations between mutually adver-
istries of justice each headed by an sarial state and federal institutions,
attorney-general and minister of jus- and skill and material constraints, in
tice at the federal level, and state attor- the personnel and institutions of
neys-general and commissioners for the system. Nigeria’s criminal justice
justice at the state level. A Directorate system may exist in law, but the day-to-
of Public Prosecutions that advises day practice of law enforcement
which cases may or may not be taken bears no relationship to the process
further to prosecution supervises contained in the constitution and
criminal prosecution in these min- the laws.
istries. Upon conclusion of an investi- Nigeria’s 1999 Constitution
gation, the police forward the case file requires that accused persons be tried
within a reasonable time. Police can
detain suspects for no more than
48 hours, after which they must be
Police can detain suspects for no more arraigned before a court. However,
than 48 hours, after which they must be many detainees in police custody
are held for much longer periods,
arraigned before a court. But many detainees often for up to one year or longer.
are held for up to one year or longer. After arraignment, accused persons
may be held interminably in deten-
tion. There are four principal reasons
for this state of affairs.
to the appropriate director of public
First, law enforcement practices
prosecutions (DPP) for legal advice.
are out of step with existing legal
Although the police and prisons are
standards. Suspects should only be
federal institutions, most crimes are
arrested if a police investigation links
state crimes that are tried within state
them to a crime. In Nigeria, however,
courts. The resulting asymmetry in
arrests trigger investigation. Detainees
the allocation of responsibilities
are kept in custody while the police
between federal and state institutions
claim to investigate and seek the certi-
lies at the heart of Nigeria’s pretrial
fication of the Director of Public
detention crisis.
Prosecutions as to whether or not to
prosecute. Sometimes, securing this
The Problem: A Diagnosis of the certification may take more than five
Pretrial Detention Crisis years. Pending this certification, sus-
Entry into the criminal justice system pects remain detained. Moreover,
in Nigeria is easy. Once inside, sus- understaffed and underresourced,
pects easily become entrapped in pro- Nigeria’s police lack the facilities
longed periods of pretrial detention. to conduct effective investigations.
Nigeria’s pretrial detention crisis is Complainants, therefore, often have to
caused by a combination of factors, fund criminal investigations, includ-
including both the asymmetry of role ing paying for the transportation and

88 Open Society
Case Studies

communication costs of investigating witness. Although empowered to con-


police officers, as well as the stationery trol prosecutions, the state DPPs have
used to record statements. In the no control over the federal officials on
absence of an appropriate environ- whom they depend to do their work
ment for investigations, the police rou- effectively.
tinely subject suspects to diverse Interagency communication fail-
forms of torture and coercion to ures compound the problem of pretri-
encourage self-incriminations and al custody. Often, case files go missing
confessions. between the police and the state DPPs.
Second, after arrest, the police, Many detainees do not have records
knowing that they have yet to under- of their arrest and are uncertain of
take an investigation, often arraign the criminal charges pending against
suspects before courts that lack juris-
diction to try them but nevertheless
commit them to custody pending
completion of the police’s investiga- There is a near total failure of coordination
tion. There is no requirement for and information management between the
these courts to set time limits for com-
pletion of investigation or for monitor-
various state and federal agencies involved
ing of the duration of pretrial custody. in the criminal justice process.
In effect, suspects suffer judicially
sanctioned indefinite detention.
Third, there is a near total failure
of coordination and information them. Without such records, they
management between the various are held interminably. A presidential
state and federal agencies involved in committee that audited Nigeria’s
the criminal justice process. The prison system in 2005 found that 3.7
police, a federal agency, have primary percent of pretrial detainees were in
responsibility for investigating crimes custody because their case files were
and collecting, cataloguing, and stor- missing; 7.8 percent because the IPO
had been transferred; and another
ing evidence. Over 90 percent of
17 percent because of delays in the
recorded crimes are state crimes, pros-
investigation.2
ecuted by state-level prosecutors. Trial
courts are mostly state courts. Cases Fourth, most suspects do not
are often stalled interminably—for receive access to legal advice or repre-
instance, because the Investigating sentation early in their contact with
Police Officer (IPO), a federal employ- the police, who, in turn, do their
ee, is transferred from one state to best to deny them access to any form
another without notification to the of contact with family or legal repre-
state prosecutors with whom the IPO sentatives until after they have incrim-
is working on a case or to the judges of inated themselves. The 2005 presi-
state courts before whom the police dential committee found that nearly
officer will be required to appear as a three-quarters of suspects in pretrial

Justice Initiative 89
Pretrial Detention

custody do not have legal representa- designed to promote this coordina-


tion.3 The state-funded Legal Aid tion. The decree established federal
Council, with a presence in all of and state Administration of Justice
Nigeria’s states, has very limited cover- committees, chaired by the chief jus-
age of law enforcement precincts. tice at the federal level and state chief
The average accused person cannot judges at the state level. These com-
afford private legal representation. mittees are made up of representatives
from the police, prisons, the attorney-
Previous Reform Efforts general at the federal or state level, as
The Nigerian government, at all levels, well as representatives of the Legal Aid
has failed to develop effective inter- Council and the Bar Association.
ventions to address the country’s pre- However, this Decree was accompa-
trial detention problem. The preferred nied by very little public or policy com-
governmental intervention has mostly munication and the committees have
been the ad hoc delivery or release of largely failed to meet or function.
detainees by ministerial committees In due course, the Criminal Justice
or judicial intervention. In the two (Release from Custody) (Special
decades between 1986 and 2006, Provision) Decree evolved into a
there have been several such ad hoc means of “rent” collection for prison
releases of pretrial detainees. personnel who would not put forward
Under the Criminal Justice cases for consideration by the chief
(Release from Custody) (Special judges on their occasional jail delivery
Provision) Decree of 1977, the chief visits until the detainees had paid
justice of Nigeria and the chief judges some prescribed fee or bribe.
of the states of the federation are man- Moreover, most chief judges and the
dated to release from detention any chief justice do not undertake regular
person whose detention is manifestly jail delivery exercises. Above all, with
unlawful or of longer duration than no monitoring or control of the supply
the person would have spent in prison chain for pretrial detainees, new
if convicted. However, as prisons are detainees quickly fill the space vacated
federal institutions under the control by the few detainees occasionally
of a Federal Ministry of Internal released by ministerial or judicial
Affairs, this law does not provide any intervention.
coordination mechanism between the Articulate nongovernmental advo-
state judiciaries and the federal pris- cacy for reform of Nigeria’s prisons
ons. The law also fails to provide for generally, and the pretrial detention
any mechanism of monitoring prison pathology in particular, began in the
populations in order to equip the chief late 1980s. By 1990, the Civil Liberties
justice or state chief judges to exercise Organisation (CLO) crystallized the
their power effectively. A federal emergence of this voice for prison
Administration of Justice Decree reform in a seminal report on the
adopted in 1993 was ostensibly Nigerian prison system.4 The report

90 Open Society
Case Studies

called attention to the pretrial deten- with the police, the tendency to charge
tion crisis and advocated for focused suspects for custodial committal
policy action to change it. Following before courts without trial jurisdic-
publication of the report, the Nigerian tion,5 the lack of a firm cap on the
government again established an ad duration of pretrial detention, and the
hoc ministerial committee to under- dearth of skills and resources available
take prison reform, headed by a retired to the system.
Supreme Court justice. Like that of It is against this background that
others before and since, the work of the Open Society Justice Initiative,
the committee effectively failed to working with Nigeria’s Legal Aid
change the pretrial detention situation Council and the NPF, has sought
in Nigeria. to address the pretrial detention crisis
Among nongovernmental organi-
zations, litigation to secure the release
of pretrial detainees became the pre- Any attempt to confront the problem
dominant response. Such efforts,
however, became bogged down in of pretrial detention in Nigeria must
Nigeria’s notoriously slow and adver- address its root causes rather than
sarial court process. Pretrial detention
delivery cases routinely take over five just the obvious symptoms.
years to come to judgment. Litigation
on behalf of detainees thus proved
ineffective in reducing the number in Nigeria. The resultant Project
of pretrial detainees. Even where for Reform of Pretrial Detention
detainees get favorable judgment, they and Legal Aid Service Delivery in
are routinely rearrested as soon as Nigeria (“the project”) focuses on
they are granted bail by a court and the improved management of the
charged with a serious offense with pretrial process through better
a view to denying them bail. Thus, information management, improved
a revolving door effect develops: sus- communication and coordination
pects are arrested, detained, granted between the criminal justice agencies,
bail, rearrested, and detained. effective legal representation for
arrested suspects and detained defen-
An Innovative Approach dants, and legislative reform.6
It is evident from this analysis that any In summary, the project works with
attempt to confront the problem of the police and the states’ justice min-
pretrial detention in Nigeria must istries to establish a case file manage-
address its root causes rather than just ment system from the moment of
the obvious symptoms. These root arrest and identifies key steps to
causes include the lack of coordination ensure that a case file moves expedi-
among the principal criminal justice tiously from one agency to another
entities, lack of legal representation and from one level of administration
for detainees at the point of contact to another. The project’s Duty Solicitor

Justice Initiative 91
Pretrial Detention

Scheme places lawyers on 24-hour call mechanisms in relevant criminal jus-


at designated police stations to provide tice agencies as tools for addressing
legal assistance to suspects. Project- the problem of lengthy pretrial deten-
inspired Practice Directions issued by tion. The project also promotes intera-
state chief judges mandate judicial gency cooperation, provision of skilled
monitoring of pretrial custodial orders legal manpower, capacity develop-
and limit their duration to nine ment, and internal monitoring/man-
months. Draft legislation promoted by agement mechanisms. The project,
the project proposes a statutory cap on moreover, is working toward the
pretrial detention of not more than institutionalization of these tools
one month. and processes through legal reform
to secure an enduring change in
the management of pretrial detention
in Nigeria.
The project’s Duty Solicitor Scheme places In December 2004, the project
undertook a national interagency
lawyers on 24-hour call at police stations to
consultation among the principal
provide legal assistance to suspects. institutions of Nigeria’s criminal
justice system.8 Similar interagency
consultations followed in the four
pilot states. The aim of these high-
Intervention level meetings was to secure an inter-
The project was launched in agency commitment to common diag-
September 2004 as a two-year pilot in noses, goals, and objectives and to
four states: Ondo, Imo, Kaduna and develop an implementation strategy.
Sokoto, with the intention of extend- Following deliberations that sought
ing its footprint incrementally to other to identify the causes of lengthy pretri-
states of the federation. The project al detentions in Nigeria and assess
seeks to reduce both the number of previous attempts to overcome it, each
pretrial detainees as a proportion of interagency consultation developed a
the overall prison population and the plan of action endorsed by the partici-
average duration of detention. The pating criminal justice agencies. Each
project also seeks to improve coordi- plan of action recognized that the
nation and harmonization between major obstacle to earlier attempts at
agencies of the criminal justice system reform of pretrial detention was the
to ensure the prompt arraignment and lack of interinstitutional communica-
prosecution of defendants (or the tion and coordination among the dif-
dropping of charges). ferent criminal justice agencies.
The project deploys trained lawyers As supplementary objectives, the
from the Legal Aid Council and the project sought to contribute to the
National Youth Service Corps.7 reform of legal aid delivery in Nigeria
The project designed and implement- and ministerial-level work on the
ed monitoring and management reform of the administration of crimi-

92 Open Society
Case Studies

Table 3: Baseline Data on the Duration of Pretrial Detention in Pilot States 11

Project >5 but ≤ >3 but >1 but >6 mts but % of PTDs
≤ 5 yrs in ≤ 3 yrs in ≤ 1 yr in
Total no. >10 yrs in >1 year in
pilot 10 yrs in >1 year in
states of PTDs detention detention detention detention detention detention custody

Imo 1,044 20 243 179 432 170 874 83.7%

Ondo 671 6 72 107 268 218 453 67.5%

Kaduna 774 - 20 71 263 420 354 45.7%

Sokoto 622 1 21 40 102 485 137 22.0%

Total 3,111 27 356 397 1,065 1,293 1,818 58.4%

% 100% 0.9% 11.4% 12.8% 34.2% 41.6% 58.4%

nal justice.9 Two separate working periodic review of cases of pretrial


groups were established under the detainees to reduce the duration of
auspices of the federal Ministry of pretrial detention.
Justice to work in collaboration with Pending the passage of these bills
the project team to develop a into law, the project embarked on a
legislative basis for the reform of the fast-paced roll-out of its activities in
criminal justice system. Two sets of the four pilot states. The states were
legislative proposals—a Legal Aid selected to reflect different patterns of
(Amendment) Bill and the pretrial detention concentration in
Administration of Criminal Justice Nigeria. Working with the Prisons
Bill—were developed. The Service in each pilot state, the project
Administration of Criminal Justice Bill collected baseline data on the size and
seeks to limit the period of pretrial duration of the pretrial detention prob-
detention to a maximum duration of lem at the beginning of the project
one month irrespective of the alleged
(Tables 3 and 4). Obtaining these fig-
offense, as opposed to the present
ures was the first evidence of progress
practice in which pretrial detainees
in developing the institutional rela-
stay in custody for indefinite periods.10
tionships required for the project to
The Legal Aid (Amendment) Bill
succeed.
seeks to augment the services provid-
ed by about 90 lawyers of the Legal
Aid Council of Nigeria with 1,000 Capping Pretrial Detention and
national service lawyers annually to Managing the Holding Charge
provide legal representation to pretrial Persons accused of capital offenses are
detainees. The legislation further disproportionately subjected to long
provides for custodial monitoring and durations of pretrial detention (Table

Justice Initiative 93
Pretrial Detention

Table 4: Baseline Data on the Duration of Pretrial Detention for Persons


Charged with Capital Offenses in Pilot States12

No. of PTDs No. of PTDs No. of PTDs


No. of PTDs alleged for alleged for alleged for
No. of % of PTDs alleged capital capital capital
PTDs in alleged to for capital offenses offenses offenses
detention have commit- offenses > 3 but >1 but > 6 mts but
Project Total no. for capital ted capital >5 yrs in ≤ 5 yrs in ≤ 3 yrs in ≤ 1 yr in
pilot states of PTDs offenses offenses custody custody custody custody

Imo 1,044 692 66.3% 230 136 307 19

Ondo 671 490 73.0% 78 108 204 10

Kaduna 774 314 40.6% 20 79 132 83

Sokoto 622 175 28.1% 20 42 110 3

Total 3,111 1,671 53.7% 348 365 753 115

4).13 This is made possible by a proce- resulting patronage of the judiciary


dure known as a holding charge, is abused to the extent that the police
which arises when a suspect is and the prosecutorial authorities do
brought before a court that has no trial nothing after magistrates have issued
jurisdiction for the alleged offense. a remand order.
The court declines jurisdiction to try Corruption further reinforces the
the offense but orders the suspect to inequity of the holding charge process.
be remanded in custody pending the On most occasions, once a magistrate
conclusion of the investigation and the remands an accused person to deten-
filing of a proper charge before a high- tion, the police fail to complete the
er court with trial jurisdiction on the investigation and the filing of a charge
matter. This procedure, which encour- in a timely manner, often failing to act
ages indefinite pretrial detention, is until induced or bribed by the accused
authorized by the states’ criminal pro- or his/her relatives. Some corrupt
cedure laws.14 police officers indiscriminately arrest
It can be argued that magistrates persons and detain them in police
are statutorily encouraged to assist the cells only to invent unsubstantiated
police and prosecution to delay the capital charges for such persons if
process of arraignment of a suspect they fail to offer bribes or other mate-
before a court with trial jurisdiction. rial inducements. As the Criminal
This contributes to the long period Procedure Law makes it mandatory
of pretrial detention, especially for for magistrates to remand capital
persons suspected of having commit- cases, suspects are not given the
ted capital offenses. Most often, the opportunity to state their side of the

94 Open Society
Case Studies

case. Thus begins the journey into ticipation and cooperation of the
prolonged and indefinite pretrial cus- police institutionally. In April 2005,
tody. Furthermore, corrupt police offi- the inspector-general of police
cers routinely insist on bribes before instructed police commands in the
they discharge suspects whom investi- project states to give unhindered
gation proves to be innocent. Without access to project lawyers to visit police
proper monitoring by the agencies of cells and to interview and offer legal
administration of criminal justice advice and assistance to the inmates,
and/or legal advice and intervention with a view to effecting the release of
from lawyers representing them, such those unlawfully detained. Previously,
suspects can languish in detention
indefinitely.
To respond to this situation, the The most critical element of the project
project team reasoned that if magis-
was enlisting the full participation and
trates could issue custodial orders
without having trial jurisdiction, they cooperation of the police.
ought to be able to exercise jurisdic-
tion to monitor the progress of the
police investigation. Consequently,
lawyers were routinely rebuffed, and
the project successfully lobbied for the
sometimes even assaulted, at police
promulgation of practice directions
stations and were asked to go to court
issued by state chief judges, as the
if they had any complaint on behalf of
chief administrative officer of the judi-
suspects.
ciary, to magistrates. These practice
Building on this, in December
directions require magistrates not hav-
2005, the Justice Initiative and the
ing trial jurisdiction to recall all pretri-
Legal Aid Council of Nigeria collabo-
al detention orders for periodic review
rated with the inspector-general of
not more than three months after the
police to organize a conference on a
order and to discharge the suspect or
Police–Duty Solicitor Scheme for the
transfer the case to a court with trial
Police High Command. The confer-
jurisdiction if charges have not been ence enjoyed the attendance of and
filed by the third recall and review of contributions from the police at its
the case file. Effectively, this caps the highest command levels, including all
duration of pretrial detention at deputy inspectors-general of police
between nine and 12 months. At the and commissioners of police in the
time of writing, the model practice 36 states and Federal Capital Territory.
direction developed by the project has At the conference, the inspector-gener-
been adopted and is operational in al publicly committed the police to
three of the pilot states. humane and lawful investigation
procedures and working fully with
The Police—Duty Solicitor Scheme the project to achieve this. As a result
Arguably the most critical element of of the conference in June 2006, a
the project was enlisting the full par- Memorandum of Understanding

Justice Initiative 95
Pretrial Detention

Table 5: Pilot Site Data before Project Intervention: March/April 2005 16

Project Average no. of days in


pilot states No. of detainees detention per detainee Total no. of detention days

Imo State 1,044 1,061 days 1,107,684 days

Ondo State 671 627 days 420,717 days

Kaduna State 774 291 days 225,234 days

Sokoto State 622 228 days 141,816 days

Total 3,111 609 days 1,894,599 days

(MoU) between the NPF, the Legal Aid leading to the quick determination of a
Council, and the Justice Initiative matter. To ensure the effective imple-
for the formal establishment of the mentation of the program, the MoU
Police–Duty Solicitor Scheme in creates the Duty Solicitor Advisory
the major police precincts of Nigeria Committee.15 This committee meets
was signed. every three months with the commis-
Under the terms of the MoU, duty sioner of police and the Legal Aid
solicitors are stationed at designated Council supervisor in the state to
police stations under a 24-hour duty review, advise on, and resolve any out-
schedule supervised by the Legal Aid standing issues.
Council. The duty solicitors employ Project lawyers are involved in
their knowledge, professional skills, many other activities, including mak-
and experience to intervene and advo- ing applications to the police, the
cate on behalf of suspects/detainees at Director of Public Prosecution, and
police stations by securing their rights the courts, advocating for bail or
under the law and by ensuring that the discharge of pretrial detainees on
highest standards of respect for their grounds that those detainees have
dignity are maintained. According to no case to answer or for want of dili-
the MoU, the responsibilities of the gent prosecution. They may also apply
duty solicitors are complemented by under the Fundamental Human
the duties imposed on the NPF. Thus, Rights (Enforcement Procedure)
the NPF is obligated through its police Rules through which the court releas-
liaison officers to ensure that suspects es unconditionally pretrial detainees
are given access to duty solicitors with- who are unlawfully detained. Project
in the police stations. lawyers, in collaboration with the NPF
The MoU further imposes on the and DPP in the state, also undertake a
police an obligation to assist duty monthly administrative review of case
solicitors with obtaining information files of pretrial detainees. This exercise

96 Open Society
Case Studies

Table 6: Pilot Site Data: December 2005 17


No. of
detainees Average Reduction %
in prison No. of period in Average in avg. Reduction
custody releases No. of days detention baseline period of in average
when from in detention of project period in pretrial duration
Project project prison of project beneficiaries detention detention of deten-
pilot states began custody beneficiaries (days) (days) (days) tion

Imo State 1,044 77 21,884 123 1,061 938 88%


(7.4% decrease)

Ondo State 671 152 135,228 436 627 191 31%


(22.7% decrease)

Kaduna State 774 236 9,806 40 291 251 86%


(30.5% decrease)

Sokoto State 622 146 47,030 89 228 139 61%


(23.5% decrease)

Total 3,111 611 213,948 171 609 438 72%


(19.6% decrease)

seeks to reduce the number and dura- early outcomes, however, are encour-
tion of pretrial detentions in both aging. Within its first year of opera-
police cells and prison. tion, the project recorded significant
The periodic reports of the project successes in many areas. Notable
team and its lawyers to the chief among them is the marked improve-
judges of the state, who have powers ment in the project team’s relationship
to undertake periodic jail delivery exer- with the police. The model practice
cises, have led to the release of numer- direction prepared by the project has
ous pretrial detainees who would have been adopted in three states (Imo,
remained in detention if not for these Ondo, and Sokoto) and is under con-
sideration in Kaduna, Plateau, and
interventions. The project’s engage-
Rivers states. The practice direction
ment with the NPF, at both the nation-
creates a management review mecha-
al and state levels, has led to better
nism through which the judiciary (i.e.,
monitoring of incidents of abuse per-
the magistrates) control and manage
petrated by some personnel of the
the remand orders issued by them.
force. Professionalism is gradually
The practice direction also protects the
being introduced into police investiga-
constitutional rights of suspects to
tion, thereby reducing delays in inves- personal liberty and due process by
tigations and arraignment. contributing toward the prompt
arraignment and prosecution of
Impact Evaluation accused persons.
It is arguably too soon to assess defin- In addition, the project has secured
itively the impact of the project. The substantial and measurable successes

Justice Initiative 97
Pretrial Detention

Table 7: Releases from Pretrial Detention in Project States,


April—December 2005

No. of pretrial
detainees in No. of releases from
Project states prison custody prison custody % Released

Imo 1,044 77 7.4%

Ondo 671 152 22.7%

Kaduna 774 236 30.5%

Sokoto 622 146 23.5%

Total 3,111 611 19.6%

in terms of the numbers of persons Moreover, in March/April 2005 the


released or diverted from pretrial cus- total average period in detention
tody, as well as in the mean duration of before the project intervention in the
pretrial detention. The relevant figures four pilot states was 609 days (20
are contained in Tables 5 and 6. months) per detainee. The total aver-
Before the project commenced, in age period in detention in the pilot
March/April 2005, there were 3,111 states had declined to 171 days (5.7
months) per detainee (or “project ben-
persons in pretrial detention in the
eficiary”) by December 2005.
four pilot sites. Together they had
spent almost a cumulative 1.9 million Note: In addition to the above-listed
releases of detainees held in custody
days in detention—or an average of
in prison, over the same period 644
609 days or 20 months per detainee
detainees held in police cells were also
(Table 5).
released from custody: Ima state (100
By December 2005, the project had detainees); Ondo state (158); Kaduna
secured the release of 611 detainees state (7); and Sokoto state (379).
from prison custody, plus an addition- Out of the baseline total of 3,111
al 644 persons from police custody detainees awaiting trial at the begin-
(Table 6). Table 6 further shows that ning of the project cycle in the four
the project achieved a significant pilot states, the project effected the
reduction in the average duration of release of 611 detainees awaiting trial
pretrial detention in the pilot states in under one year. This represents a
of Imo (–88 percent), Ondo (–31 per- 19.6 percent decrease in the baseline
cent), Kaduna (–86 percent) and number of persons awaiting trial in
Sokoto (–61 percent). those states.

98 Open Society
Case Studies

Table 8: Releases from Pretrial Detention in Nonproject States by the


Legal Aid Council in 2005 18

No. of pretrial
detainees in No. of releases from
Project states prison custody prison custody % Released

Edo 384 25 6.5%

Taraba 401 69 17.2%

Osun 222 25 11.3%

Total 1,007 119 11.8%

The number of releases recorded in Pretrial Detention Diversions


other states of the federation, where Apart from ensuring the release of
the project is not being implemented, pretrial detainees, the project lawyers
is not as impressive. The Legal Aid have sought to reduce the supply side
Council of Nigeria is the local princi- of the inflow of detainees into prison.
pal partner in this project. A compari- Thus, apart from the aforementioned
son of the data in Tables 7 and 8 releases from prison custody, in 2005
demonstrates that the intervention of the project succeeded in ensuring that
the project favorably influenced the
100 (Imo), 150 (Ondo), 7 (Kaduna),
number of persons released from pre-
and 379 (Sokoto) pretrial detainees
trial detention in the project states
were not taken to a magistrates’ court,
(Table 7), compared to states where the
where they would have been remand-
project is not being implemented
ed in prison custody at the mercy of
(Table 8). Thus, in the project states
the police and the Directorate of
almost 20 percent of detainees were
Public Prosecution. This was achieved
released during 2005 (Table 7), com-
by advocacy efforts of project lawyers
pared to 11.8 percent in nonproject
states (Table 8). at police stations leading to the dis-
charge of the complaint against the
The lawyers in both project and
suspect as being frivolous and inca-
nonproject states work with the
pable of sustaining a charge.
Legal Aid Council of Nigeria. The dif-
ference in performance as revealed in
Tables 7 and 8 is attributable to the Conclusion: Sustaining Change
innovations and infrastructure intro- The intervention pioneered by the
duced by the project. project will need to be sustained by

Justice Initiative 99
Pretrial Detention

legal and institutional reforms. The evidence of a new partnership


Administration of Criminal Justice between governmental and non-
and the Legal Aid (Amendment) Bills governmental entities in addressing
are designed to achieve this. Some the pretrial detention problem in
interventions will also need to be Nigeria. Partnerships of this type are
entrenched through administrative vital to ensuring the sustainability
processes, training, and sound mana- of this initiative. Ideally, more civil
gerial practices. For instance, the society organizations will become
Practice Direction, which has been involved with the project as it is
adopted by three states, has been replicated in other states.
entrenched as a mechanism to moni- At the time of writing, the project is
tor and cap the duration of precustodi- expanding to two more states (Plateau
al orders. On the part of the police, and Rivers), bringing the number of
efforts are already in place to update pilot states to six by the end of 2006.
their compliance with human rights The project has also inspired a
standards through the establishment Nigerian civil society initiative, Rights
of Human Rights Sections at the Enforcement and Public Law Center
Divisional, Area, and State Command (REPLACE), devoted to addressing the
Levels of the NPF, as well as through pretrial detention crisis in Nigeria in
the proper training and reorientation partnership with the NPF, the judici-
of officers and personnel in line with ary, and other government institu-
the norms of democratic policing and tions. To ensure that the capacity for
the rule of law. As a result of this, the coordination is sustained, the project
syllabus of police training institutions has worked with the federal and state
has been revised to entrench instruc- criminal justice institutions to design
tions on human rights. Finally, a spe- a Criminal Justice Information System
cial investigation team of the NPF (CRIMSYS) software package to cap-
(known as the X-squad) has been reor- ture and manage information within
ganized to ensure the effective moni- the criminal justice system with a view
toring and sanctioning of deviant to stemming the pretrial detention
police officers. 19 phenomenon. Roll-out of this system
The Memorandum of Understand- began in August 2006 in Imo and
ing for the implementation of the Sokoto states and is planned for
Police–Duty Solicitors Scheme signed Plateau and Rivers states and the
by the NPF, the Legal Aid Council of Federal Capital Territory in 2007.
Nigeria, and the Justice Initiative is

100 Open Society


Case Studies

Notes

Anthony Nwapa is a solicitor and barrister of the Supreme Court of Nigeria; LL.M (Human
Rights); consultant and fellow of the Open Society Justice Initiative; and coordinator for the
Reform of Pretrial Detention and Legal Aid Service Delivery in Nigeria Project. The author
acknowledges the fruitful partnership of the Nigeria Police Force, the Legal Aid Council, and
the Open Society Justice Initiative in the project. He also ackowledges the kind assistance of
Felicitas Aigbogun, Chidi Odinkalu, and Maxwell Kadiri in both the project and the preparation
of this report.

1. Data derived from the press briefing of the Honorable Attorney General and Minister for
Justice, Chief Bayo Ojo San, and as contained in the Report of the Presidential Working Group on
Prison Reforms and Decongestion (Abuja, February 2005), 6, 49.

2. Report of the Presidential Working Group (February 2005), 6–7, 73.

3. Ibid., 6.

4. See Chidi Anselm Odinkalu and Osaze Lanre Ehonwa, Behind the Wall: A Report on Prison
Conditions in Nigeria and the Nigerian Prison System (Lagos: Civil Liberties Organisation, 1997).

5. This phenomenon, known as the Holding Charge, is discussed in detail below.

6. The project is a collaborative undertaking between the Justice Initiative, the Legal Aid Council
of Nigeria, the judiciary, the federal Ministry of Justice, the Directorate of Public Prosecution in
the states, the Nigerian Bar Association, the Nigerian Police Force, the Nigerian Prison Service,
civil society representatives, the National Youth Service Corps, and the National Working Group
on Legal Aid Reform.

7. National Youth Service Corps lawyers are relatively new members of the Nigeria Bar
Association who are on compulsory national service for one year. Such lawyers are not paid
salaries but are given a monthly state allowance to augment their stipends from their places of
primary assignment. As their primary assignment is under the project, they are given monthly
stipends by the project.

8. That is, the judiciary, police, prisons, the prosecution service, and the Legal Aid Council.

9. Nigeria’s federal attorney-general constituted a National Working Group on Legal Aid Reform
in 2004, with a mandate of reviewing and updating the Legal Aid Act and improving legal aid
delivery in line with best practices internationally.

10. See Report of the Presidential Working Group on Prison Reforms and Decongestion (Abuja,
February 2005), 49.

11. Data derived from analysis from the office of the Nigerian Comptroller-General of Prisons with
reference numbers PHOND: 66/VOL.III/81; PHK.91/VOL. XTX/516; PHS.676/VOL. 2/349;
ISPH/66/VOL. XV/75, 6 April 2005, 14 April 2005, 9 April 2005, and 5 April 2005, respectively.

12. Ibid.

13. In Nigeria capital offenses exist in both the criminal law system (the penal code and the
criminal code) and the Sharia penal system. Under criminal law it is applicable for offenses such
as murder, culpable homicide, armed robbery, and treason.

14 For instance, section 236(3) of the Criminal Procedure Law of Lagos State gives magistrates’
courts, without trial jurisdiction for capital offenses, mandatory powers to remand any person
alleged to have committed such offenses. In effect, the procedure under section 236(3) allows
for remand without the suspect’s being charged. This is contrary to section 35(1) of the 1999

Justice Initiative 101


Pretrial Detention

Constitution, which recognizes remand only after a proper charge has been filed against a
suspect in a court with the requisite trial jurisdiction.

15. The committee comprises representatives of the inspector-general of police, the director-
general of the Legal Aid Council, the director-general of the National Orientation Agency, the
Justice Initiative, the chief judge of the state, the attorney-general of the state, and the chairperson
of the Nigeria Bar Association in the state capital.

16. The data is derived from statistics provided by the office of the Nigerian Comptroller-General
of Prisons given to the project team at the beginning of the project in March–April 2005,
contained in compilation with reference numbers PHOND: 66/VOL.III/81; PHK.91/VOL.
XTX/516; PHS.676/VOL. 2/349; ISPH/66/VOL. XV/75 on Ondo, Kaduna, Sokoto, and Imo State
respectively.

17. Ibid. This data was collected and analyzed by the project team and the Legal Aid Council.

18. Data provided by the office of the Nigerian Comptroller-General of Prisons given to the Project
team at the beginning of the project in March–April 2005, contained in compilation with
reference numbers PHOND: 66/VOL.III/81; PHK.91/VOL. XTX/516; PHS.676/VOL. 2/349;
ISPH/66/VOL. XV/75 on Ondo, Kaduna, Sokoto, and Imo states respectively and the 2005
unpublished reports of the Legal Aid Council of Nigeria.

19. Paper presented by the Inspector General of Police, Mr. Sunday Ehindero, at the Stakeholders
Meeting on Strengthening the Police-Duty Solicitors Scheme in Nigeria (Abuja: Open Society Justice
Initiative, the Legal Aid Council of Nigeria, and the Nigeria Police Force) December 16, 2005.

102 Open Society


Case Studies

Ebb Tide: The Russian Reforms


of 2001 and Their Reversal
Olga Schwartz looks at the adoption undo some of its most important
of Russia’s new Code of Criminal advances. Furthermore, detention is
Procedure in 2001 and the backlash used as frequently today as it was in
that soon followed, and examines the first half of 2002.
their impact on pretrial detention. The reversal of pretrial detention
In 2001, the Russian government reform in Russia has its roots in
adopted a new Code of Criminal the adoption of the new CCP—specifi-
Procedure (CCP) that expanded the cally in the competition among
rights of criminal defendants and different governmental agencies and
erected additional barriers to the use legal scholars during the process of
and length of pretrial detention. The adopting the new code. A moderate
new code, for example, shortened to draft of the code, which represented a
two months the amount of time defen-
dants can typically be held in custody
pending trial. More fundamentally, Legislators introduced changes to
the code transferred from the prosecu- the code that undo some of its most
tion to the judiciary final authority
important advances.
over the use of pretrial detention.
Before the new code entered into force
in July 2002, prosecutors were able
unilaterally to arrest and detain sus- compromise among many agencies
pects until trial. Today, Russian judges and which advanced to a second
decide which suspects will be placed reading by parliament in 1999, was
in detention and for how long. abruptly revised and radicalized
during the peak of reforms led by
These changes are important steps
the Presidential Administration in
forward in their own right and
2000–2001. This more progressive
appeared to contribute to a reduction
version, with stronger protections
in the frequency of detention at least
against arbitrary detention, has met
in the first six months after the intro-
with strong resistance in the trenches
duction of the new code. A number of
of justice administration and is now
amendments to the pre-2001 code also
gradually being reversed.1
set in motion a decline in the use of
This paper describes the evolution
detention from the beginning of 2001
of the reforms to the Code of Criminal
onward. Yet the trend in pretrial
Procedure as well as some of the
detention in Russia today leads in
patterns in the use of detention in
the other direction. Legislators have
the aftermath of these changes.
introduced changes to the code that

Justice Initiative 103


Pretrial Detention

It speculates about the impulses for “radical reformers,” and also consider-
reform and the personalities and insti- able setbacks.2 This paper describes
tutions that augur for and against the some of these turns in order to illumi-
progress that has been made so far. nate the institutional interests in
The paper begins with an account of opposition to reform, as well as
the winding road of reform. It ends the forces—people, ideas, and organi-
with a description of some of the signs zations—that promoted change in
of the restoration of a less progressive pretrial detention.
model of criminal justice in Russia. I was a member of one of the work-
ing groups created at the Ministry of
Justice of the Russian Federation in
1992 that prepared an initial draft of
The disagreements among the new code. I later worked for the
Committee on Legislation and Judicial
justice agencies, rooted in institutional Reform of the Duma (lower house of
competition, were not resolved by the new parliament), which prepared the draft
code for the first reading by parlia-
code but rather swept under the rug. ment in 1997. I personally collected
many thousands of comments on and
amendments to the draft adopted in
the first reading, some of them being
Adopting the New Code rather confusing and contradicting
of Criminal Procedure one other. I also witnessed some of
In 1991, the RSFSR Supreme Soviet the interactions on and off the official
(parliament) proclaimed the necessity floor of debate that eventually yielded
of legal reform to build the rule of law the new code. The disagreements
and establish the separation of pow- among justice agencies, rooted in but
ers, including an independent and not limited to institutional competi-
powerful judiciary. Judicial reform was tion, were not resolved by the adoption
declared one of the main objectives of of the new code but rather swept
the state, and criminal justice reform under the rug. These disagreements
as the main task of judicial reform persist today, and a conservative crim-
because of its role in protecting inal justice agenda, illustrated best
human rights. by the strengthening of the Federal
A new Code of Criminal Procedure Security Service and its preoccupation
was passed in November 2001 and with terrorism, is ascendant.
came into force in July 2002. The new
code took more than a decade to draft The Winding Road of Legislative Change
and then required a fortuitous political Some democratic provisions in the
situation that would allow its adoption field of pretrial detention (as the most
by the legislature and signing by the important field from the point of view
president. Along the way, there were of human rights violations) were intro-
many battles, short-term victories for duced even before the new code was

104 Open Society


Case Studies

adopted. In 1992 the old CCP of 1960 before trial be limited to two months.3
was amended to allow so-called habeas But this draft was too progressive for
hearings—appeals against the prose- many people. Some critics said it was
cutor’s decision to put a suspect “before its time,” implying that Russia
in detention. The Russian Federation was not ready politically or materially
Constitution of 1993 went even fur- to adopt such radical new rules. Also,
ther and declared that all the decisions the strange language of the draft made
on pretrial detention should be made it seem that portions had been trans-
by a judge. But this norm did not enter lated from English into Russian, and
into legal force until much later. even some of the sections—taken
In the mid-1990s three very differ- directly from American rules of crimi-
ent concepts of the CCP prevailed: nal procedure—seemed too drastic
one draft was prepared by the Legal for many legal scholars. The brash
Department of the Presidential personal behavior of Sergei Pashin,
Administration, another by the the young leader of the working group
Ministry of Justice, and a third by the for this draft, appeared high handed to
Prosecutor General’s Office. These many senior legal scholars and practi-
different approaches ultimately led to tioners and thus undermined the
bitter disagreements among the three draft’s political support.
agencies. This competition initially A less progressive draft of the code,
seemed healthy, as many Russians the result of a compromise between
and foreign donors saw the plurality different agencies of law enforcement,
of ideas and political debate within was introduced to the Duma by
government institutions as democrat- the Ministry of Justice and finally
ic. But within the government there adopted in the first reading in 1997.
was no strong will to tame this compe- Still, more than 3,000 amendments to
tition or reconcile the different this draft were introduced, and it did
groups, and neither the government not receive a second reading until
nor the president wanted to introduce 1999. Reasonable legislative processes
any of these drafts to the Duma. were blocked by fierce competition
A draft was finally introduced into par- over the nature of power in criminal
liament in 1996 by a group of MPs justice among the institutions of jus-
headed by Anatoly Lukianov, who had tice in Russia, as well as fundamental
participated in the aborted coup of disagreements over key principles.
August 1991. It was not until 2000, when the presi-
The draft code created by the dent decisively intervened in the
Presidential Administration was the legislative process, that these disputes
most progressive. In the field of pretri- were resolved. By then, the meaning
al detention it provided for detention of “reform” had changed.
only by order of a court, limited to 48 The impasse was broken in 2000
hours the period of custody before a during the presidency of Vladimir
suspect must be brought before a Putin, when a new wave of interest in
judge, and required that detention judicial reform arose. In March 2001,

Justice Initiative 105


Pretrial Detention

an amendment to the existing code counsel and without the possibility


excluded the possibility of detention of appeal.
for suspects facing less than two years’ In addition to this shift of power,
possible incarceration unless there the code introduced four rules that
were extraordinary circumstances. protect defendants’ rights. First, in the
The amendment, moreover, repealed a absence of a judge’s review of arrest or
provision that permitted pretrial extension of detention within the first
detention solely on the grounds of 48 hours of arrest, the code orders the
the “dangerousness” or seriousness suspect to be released immediately
of the offense. Putin’s deputy chief and unconditionally. A special amend-
of staff, Dmitrii Kozak, proposed a ment regarding this issue was intro-
“package of reforms” reducing the duced into the Law On the Order of
independence of the courts and dilut- Holding in Custody Suspects and
ing judicial immunity, which softened Accused, which allowed the director of
law-enforcement opposition to the the jail to release the suspect or
more radical provisions of the new accused immediately after the expira-
code. A new working group of legisla- tion of this term, absent a court order
tors, led by Elena Mizulina, quickly extending the term.
edited the draft code so that it more Second, the code requires a written
closely resembled the original concept record of an apprehension of a sus-
of the Presidential Administration’s pect, and his delivery to a police station
draft of 1993. With a Duma more loyal within three hours after arrest. The
to President Putin, the law was adopt- record shall state the time and date of
ed at the end of 2001. alleged execution of the crime, the
date, the time, and the place of
Key Provisions of the Code the apprehension, and the grounds
Relating to Pretrial Detention and reasons thereof, the results of a
Virtually all key provisions in the new body search of the suspect, and the
code relating to pretrial justice proce- suspect’s explanations.
dure expanded the power of the courts Third, the code excludes “danger-
and diminished that of the procuracy. ousness of the crime” as a sufficient
The authorization of detention and ground for detention and adds a penal
all measures relating to search and threshold: unless there are extraordi-
seizure, including access to informa- nary circumstances, officials may take
tion about bank accounts and mail, into custody only those who are
were shifted from the procuracy to the accused or suspected of having com-
courts. This truly was a dramatic mitted an offense punishable under
change and major victory for the rights criminal law by a period of imprison-
of the defendants and human rights, ment exceeding two years.
for throughout the Soviet era all deci- Fourth, the code discourages
sions on pretrial detention were made lengthy detention. It limits initial pre-
by the procuracy, without the partici- trial detention to two months, a period
pation of the defendant or his defense that can be extended to six months

106 Open Society


Case Studies

only by a new decision of the same dis- concept of a rule-of-law state, the
trict court judge. A continuation of the essence of which is the separation of
period of detention can be requested powers into three branches. Many
only by the chief prosecutor of a Russians recognized the need to cre-
region and only in the cases of “grave” ate a new, democratic system of court
and “especially grave” crimes—that is, structure and court procedure.
offenses carrying more than five years’ Second, there was a genuine con-
possible incarceration. Holding a pris- cern for the protection of the rights
oner beyond 12 months is permitted of defendants, because there are few
only in “exceptional cases” and at the spheres of state activities in which
request of the prosecutor general of the measures of restraint are applied
the Russian Federation or his deputy so intensively as in the course of
and granted only by a judge of the criminal proceedings. In a democratic
regional-level court. Pretrial detention society, most people agreed, criminal
beyond 18 months is forbidden; the procedure should balance the state’s
accused must be released immediately interest in prompt and complete reso-
after this term. This clock, of course, lution of crimes and criminal prosecu-
stops when a suspect is bound over for tion of persons committing them
trial, but the judiciary now also has to against the individual’s interest in
abide by time limits: if the court has being free from undue restriction of
not issued a verdict after six months, his rights by the state. Many people in
or after a year in exceptional cases, the Russia felt, however, that this balance
defendant must be released.4 could not be struck through continued
Please see the appendix to this use of the old Soviet Criminal
report for a side-by-side comparison of Procedure Code of the RSFSR of
the old and new codes. 1960, and the new Russia started to
draft a new one in 1992.
The Forces for Reform Third, Russia was under pressure
The victory of progressive forces in the from the Council of Europe to make
reform of pretrial detention was the these changes. Regulating pretrial
result of at least four factors. First, detention became even more impor-
many government leaders, public offi- tant when Russia joined the Council
cials, and nongovernmental groups of Europe in 1996 and ratified the
wanted to belong to the West and saw European Convention on Human
the reform of criminal procedure leg- Rights in 1998. By then, the draft code
islation as one way to gain admission was already approved by the Russian
to Europe—or what was typically Parliament in the first reading, so the
called the civilized world. Also, after drafters had an opportunity to use
many years of isolation, large num- international experience and interna-
bers of Russians began to understand tional good practices in the course
that it was possible to join this of its further preparation. (The draft
“civilized world” only after accepting was assessed by experts from the
its universal values, including the Council of Europe, the American Bar

Justice Initiative 107


Pretrial Detention

Association, and the U.S. Department number of detainees as the facilities


of Justice). can legally hold (in Moscow it is 2.6
Fourth, conditions in jails were times).6 There are frequent and credi-
awful. Russia’s prison and jail popula- ble reports of inmates and detainees
tions rose dramatically in the 1990s, being beaten and tortured by law
and overcrowding produced violence enforcement and correctional offi-
and illness that affected guards and cials.7 Prison conditions also fall well
inmates alike. Russia managed this below international standards.
growth poorly, resorting to amnesties The overcrowded and dangerous
and ad-hoc releases to keep the popu- conditions are much worse in pretrial
lation of inmates under control. detention centers than in prisons or
But there was little confidence in labor camps. As many Russian and
administrative measures to resolve international human rights organiza-
tions have testified, confinement in
SIZOs, where thousands of prisoners
Russia’s prison and jail populations every year contracted tuberculosis as
rose dramatically in the 1990s, and well as other diseases, amounted
to torture. This conclusion was accept-
overcrowding produced violence and ed by different UN and European
illness that affected guards and Human Rights Commissions in
1995.8 It was also embraced by the
inmates alike. former deputy minister of justice,
Yuri Kalinin, one of the leading voices
for progressive penal reform in the
these concerns. The reform of crimi- country.9
nal procedure was seen as part of the
solution to these ailments. The Case of Kalashnikov
The problem of dangerous detention
Problems and Patterns in conditions became especially evident
the Use of Pretrial Detention after Russia joined the Council of
Russia has one of the highest prison Europe. One of the first cases against
population rates in the world, with an Russia considered by the European
estimated 594 individuals out of every Court of Human Rights was the case
100,000 residents in prison at the of Kalashnikov, who complained about
beginning of 2006.5 This incarcera- both the length of detention and the
tion rate is eight to 15 times higher conditions in the detention facility.
than that in most European countries. At the time of the court’s review,
There is also a large population in Kalashnikov had been in detention for
pretrial detention. Pretrial detention four years, one month and four days.
centers, known as SIZOs (for sled- The court accepted the suspicion that
stvennye izolyatory, or investigative the applicant had committed the
isolators), are perennially overcrowd- offenses and that the possibility of
ed: on average there are 2.4 times the interfering with the investigation

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could initially suffice to warrant the rate at which convicted defendants


applicant’s detention. However, once were given custodial sentences
the collection of evidence was com- remained fairly stable—around 28
plete, that argument was moot. The percent—this increase in crime yield-
court also found that detention condi- ed a larger number of inmates.12
tions in Russia were unsatisfactory Detention also was not used spar-
and fell below the requirements set for ingly. Many petty offenses in Russia
penitentiary establishments in other were criminalized, and the criminal
member states of the Council of code allowed judges to assign impris-
Europe.10 Kalashnikov’s cell, designed onment for most crimes. Experts
for eight inmates, was populated on from the Council of Europe, visiting
average by between 18 and 24 persons. penitentiary facilities in 1994, were
Inmates in the cell had to sleep in shocked by several cases in which the
turns, on the basis of eight-hour shifts offenders were arrested and kept in
of sleep per prisoner, but even that was
disrupted by the constant lighting in
the cell, inadequate ventilation, and The cell, designed for eight inmates, was
infestation by vermin. The court there-
fore held that the conditions in the cell populated by between 18 and 24 persons.
where the applicant was detained
could be regarded as “inhuman or
degrading treatment” and that the pretrial detention for shoplifting three
period spent by the applicant in deten- cucumbers or stealing two jars of jam
tion pending trial exceeded a “reason- from their neighbors.
able time.”11 But the main reason for the lengthy
detentions and overcrowded detention
Why Are Jails So Crowded? centers lies in the organization of
The conditions in the jail in which Russia’s investigative agencies and the
Kalashnikov was detained were not structure of criminal proceedings as a
unique. Throughout Russia in the whole. The CCP of 1960 determined
1990s, jails were operating at twice exact time limits only in connection
their capacity. There were many caus- with the length of investigation (with
es for this crowding, including the possibility of an extension) and set-
increases in the amount of crime, the ting the date of the trial. The extensive
likelihood of prosecution, frequent and very precise requirements regard-
use of detention, and slow growth in ing evidence collection and the relative
the amount of jail space. Although we simplicity of getting an extension from
do not have reliable information on the prosecutor led to a situation in
rates of crime, we do know from the which the two-month time limit for
Ministry of Justice that between 1993 investigation was never observed. The
and 1996 there was a 40 percent absence of meaningful time limits,
increase in the number of persons combined with inefficiency in the
convicted of crime. Even though the investigations, resulted in the over-

Justice Initiative 109


Pretrial Detention

crowding of detention centers by per- sets of amendments aimed at “the


sons whose cases were stuck at differ- maintenance of exact and uniform
ent stages of the proceedings. application of the code, [and] elimina-
tion of misinterpretation of some
What Was the Impact of the New norms.”14
Code of Criminal Procedure?
For the first time in Russian history, The Initial Impact on Pretrial Detention
the government endeavored to track Several officials reported at the final
and evaluate the impact of the Code monitoring conference in Moscow in
of Criminal Procedure on the justice December 2003 that the use of pretri-
system.13 Headed by Elena Mizulina, a al detention had been substantially
working group made up of the drafters reduced. Data presented by the Office
of the code received a grant from of the Prosecutor General of the
the U.S. Department of Justice and Russian Federation showed that, in
launched a two-year project titled the first three months after the code
“Monitoring the Implementation of was introduced—that is, July, August,
the Code of Criminal Procedure.” The and September of 2002—pretrial
project was approved by both the detention as a measure of restraint
Presidential Administration and the was applied against 33,309 persons.
Duma Committee on Legislation. The courts refused detention in the
The use of arrest and detention was cases of 3,273 persons (9.8 percent
an important subject of study but not of all the applications brought by pub-
the only concern of the group. lic prosecutors).15 These and other
The working group traveled all over numbers struck most people as a sign
Russia and conducted seminars and of both less frequent detention and
conferences in all the federal circuits success in the reform.
of the Russian Federation in order to Vyacheslav Lebedev, the chairman
explain to perplexed officials some of the Supreme Court of the Russian
provisions of the new code and also Federation, who had written a doctoral
receive feedback from the agencies dissertation on the subject of pretrial
implementing those provisions. The detention, closely monitored develop-
attempt to monitor and evaluate the ments and was generally very pleased
impact of the reforms yielded new and with the results. At the end of 2003,
important information about the qual- he stressed in his interview with
ity of justice in Russia. At the same Vedomosti, the most important busi-
time, this process opened up the ness newspaper in Russia, that as
reform of criminal procedure legisla- of June 1, 2003, courts had applied
tion to a backlash of changes that pretrial detention as a measure of
reversed the progressive trend of the restraint against 173,000 citizens, a
previous five years. On the basis of the figure he claimed was much smaller
information gathered, the working than in analogous periods before the
group introduced to the Duma several new code. Public prosecutors, he said,

110 Open Society


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detained nearly twice this number in introduction of the new code.


the year immediately before transfer Amendments to the CCP (dated July
of this power to the courts.16 4, 2003) made the position of
The results seemed to please the suspect even worse than it had
foreign observers. In its resolution been under the Soviet CCP. Today,
concerning the judgment of the the CCP contains a provision that
European Court of Human Rights in allows the court to extend the initial
the case of Kalashnikov v. Russia, the period of 48 hours of detention by
Committee of Ministers of the an additional 72 hours if one of the
Council of Europe noted with particu- parties requests additional time to
lar satisfaction the significant decrease provide additional evidence in support
in overcrowding in pretrial detention for or in opposition to the request
facilities (SIZOs) and the ensuing
improvement of sanitary conditions.
The resolution cited statistics submit-
ted to the committee by the Russian New changes to the Code of Criminal
authorities, according to which the Procedure stunted the reforms not long
average number of persons commit-
ted to detention on remand per month
after their effects began to be felt.
decreased from 10,000 in 2001 to
3,700 in October 2002. In addition,
the International Centre for Prison
Studies at the University of London for pretrial detention. Apparently,
noted that in 2000 Russia’s prison this loophole is not widely used.
population rate was 750 per 100,000 According to the data presented by
citizens and that by 2003 it had fallen First Deputy Prosecutor of Moscow
to 680 per 100,000.17 Yuri Sinelschikov in 2003, in the first
four months after the introduction of
This information suggests that the
this amendment, Moscow courts
reforms had an enormous and largely
granted extensions to only 119 per-
positive impact on practices in pretrial
sons, or 2.4 percent of all applications.
detention. But unfortunately, the
Still, the change in the law set a bad
sustainability of these changes was
precedent.
never tested. New changes to the Code
An additional set of amendments
of Criminal Procedure stunted the
introduced on April 22, 2004, went
reforms not long after their effects
even further and extended to 30 days
began to be felt.
the amount of time prosecutors had
to bring charges against suspects
Changing the Code of Criminal accused of especially grave crimes,
Procedure: The Backlash including terrorism, taking hostages,
The Duma made a series of regressive organization of illegal armed groups
changes to the regime of pretrial and participation in such groups,
detention 12 months after the gangsterism (banditry), violence to life

Justice Initiative 111


Pretrial Detention

and person of a state official, forced the Federal Security Service and the
assumption of state power, armed Ministry of the Interior worked togeth-
rebellion, sabotage, aggression against er to promote legislation providing
persons or organizations enjoying one month of detention without a judi-
international protection, and any other cial order. In 2004, these efforts were
offense punishable by more than rewarded by the Duma.
10 years of imprisonment (Article Counterreforms have also chipped
100).18 Even 10 days of detention away at the rules that eliminated indef-
without bringing any charges is inite detention. Previously, “termless
impermissible from the point of view pretrial detention” was allowed in the
of the Russian Constitution and the new code only during the “familiariza-
European Convention of Human tion” of the defendant and his counsel
Rights because the suspect has no with the criminal case. But counter-
reforms adopted on July 4, 2003,
extended the use of indefinite deten-
Counterreforms chipped tion to cases in which the defendant
away at the rules that eliminated was apprehended in a foreign country.
When necessary for the conduct of
indefinite detention. additional preliminary investigations,
the court may extend the term of
detention of such an individual. So, as
information for his defense—and 30
was possible during Soviet times, pre-
days is clearly in breach of the
trial detention again may be extended
European Convention.
up to two years.
This amendment represented the
The same amendments allowed
restoration of a rule first established
the investigator to control the defen-
during the 1990s. In June 1994, hav-
dant and his counsel’s familiarization
ing conceded to the pressure of law
with the case. The investigator may
enforcement agencies, President Boris
set a timetable for familiarization and
Yeltsin signed a decree that extended
if the defendant and his counsel do
up to 30 days the term of allowable
not meet the terms set by the court,
detention for persons suspected of
the investigator can stop the familiar-
gangsterism. The decree, although
ization and send the case to court
clearly unconstitutional, was responsi-
for consideration. This amendment
ble, according to archival documents,
is a direct violation of defendants’
for at least 27,000 detentions in
rights because it limits their ability to
1995–1996. Yeltsin rescinded the
decree in 1997, but the idea was prepare for trial.
revived in 2000 by then-Speaker of
the Duma Boris Gryzlov. In 2001, Gauging the Impact of These Changes
Minister of Justice Yuri Tchaika unsuc- There is no monitoring project or
cessfully introduced to the State Duma other vehicle to examine what impact,
a draft law allowing pretrial detention if any, these revisions to the code have
for 30 days without charges. In 2002, had on practices in pretrial detention.

112 Open Society


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To study the impact of the provisions the excision from the old CCP of a
for limitless detention, one would large list of offenses for which the dan-
need access to the records of the gerousness of the charge alone could
prosecution and Federal Security justify an order of detention. It also
Service (FSB). And to analyze how shows that the amount of detention
frequently pretrial detention is extend- continued to decline in the second half
ed, one would need access to the of 2002—that is, the first six months
raw data maintained by the Judicial after the new CCP came into effect.
Department of the Supreme Court of Since then, however, and before the
the Russian Federation. But law amendments to the code discussed
enforcement and judicial institutions above, the number of suspects
in Russia today only disclose certain remanded into custody by the courts
statistics. has grown substantially.
Nevertheless, it is possible to assess It is not clear what has caused
general trends in the use of detention, the increase in pretrial detention.
and by all accounts, it grew between The number of suspects identified by
late 2002 and 2005. The court the police actually decreased between
statistics provided by the Judicial 2002 and 2004, from 1,257,000 to
Department at the Supreme Court 1,222,504, and only afterward began
of the Russian Federation confirm to rise .19 It is also not clear what role
that there was a steady increase in the legislative changes played in this
both the amount of pretrial detention growth. Their contribution to these
and the likelihood that judges would trends may have been negligible, and
grant prosecutors’ applications for it is possible that the significant
detention between 2003 and 2005. decline in the number of detention
In the year 2003, there were 234,000 orders between July and December
applications for detention, of which 2002 was unrelated to the new CCP.
211,000 (90.2 percent) were granted One former police investigator report-
by the court. In 2004, there were ed that when the new CCP came into
237,000 applications, of which force, investigators had not been prop-
215,000 (90.7 percent) were granted. erly trained or equipped (they lacked,
And, in 2005, there were 277,000 for example, photocopying machines
applications, of which 255,000 (91.8 to provide the court and the defense
percent) were granted. Only in 2006 with copies of motions requesting
(the last full year for which data detention) and thus frequently did not
is available) did the number of appli- request detention, even when it was
cations stabilize at 249,000, of which warranted. Once these weaknesses
91.3 percent were granted. were overcome, however, the number
The chart on page 114 records of detention orders increased and
trends in the use of detention from eventually reached the level recorded
2000 through 2006. It illustrates immediately prior to the implementa-
clearly that the amount of detention tion of the new CCP. Without further
declined rapidly in 2001, right after investigation, of course, we cannot be

Justice Initiative 113


Pretrial Detention

Trends in the use of pretrial detention in Russia, 2000—2006

177,027

174,437
168,176

140,137
133,300
Number of Detentions

128,379
121,757 126,200 120,206
110,138
105,580
96,868
95,126
77,604

Jan- July- Jan- July- Jan- July- Jan- July- Jan- July- Jan- July- Jan- July-
June Dec June Dec June Dec June Dec June Dec June Dec June Dec
2000 2001 2002 2003 2004 2005 2006

Sources for data: Jan. 2000—June 2002: B. Ia. Gavrilov, The CCP of the RSFSR and the CCP of the Russian
Federation: A Comparative Analysis from the Perspective of a Practitioner and Academic, Iuridicheskii Konsultant,
No. 9 (2003); July 2002—June 2006: Judicial Department, Supreme Court of the Russian Federation, Forma S04.

sure of the validity of this account. But Official data presented on the website
if it is true, it suggests that trends in of the FPS indicate that as of October
pretrial detention are not directly 1, 2005, 156,600 inmates were con-
affected by changes in the law. It also fined in 203 pretrial detention centers
implies that the “judicialization” (i.e., (SIZOs), seven prisons, and other
transferring from prosecutors to facilities functioning as pretrial deten-
judges) of all decision-making powers tion centers.
regarding pretrial detention has not by The extent of overcrowding today
itstelf had a sustained impact on the remains well below what it was in the
use of pretrial detention in Russia. late 1990s, when the jails operated at
nearly twice official capacity and in
The Return of Intensive Overcrowding? some jails there were three and a half
The facilities for pretrial detention inmates per jail bed. Still, there is a
in Russia can legally accommodate strong sense that Russia has not
130,000 inmates. But according to resolved the problem of overcrowding.
the deputy director of the Federal And recent trends may place pressure
Penitentiary Service (FPS), Vladimir on the government to adopt arbitrary
Semenyuk, the average daily popula- policies of ad hoc releases. In October
tion in 2005 exceeded 150,000. 2005, for example, the members of

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Moscow Helsinki Group (MHG) Russian courts consistently relied on


demanded that the State Duma pass the gravity of the charges as the main
an amnesty bill making it possible factor in determining the application
to release up to 40,000 inmates who of pretrial detention. The ECHR has
they claimed were sentenced for non- repeatedly held that while the severity
violent crimes. Even the Federal of the sentence faced is a relevant ele-
Penitentiary Service estimates that ment in assessing the risk of abscond-
25 percent of jail inmates are either ing or reoffending, the gravity of the
acquitted or released before sentence, offense alone is not enough to justify
calling into question the necessity pretrial detention.
of detention. “Our prison population Ultimately, the ECHR found that
would dwindle if these people were by failing to address concrete facts or
not arrested,” say human rights consider alternative preventive meas-
activists.20 ures, and by relying almost exclusively
on the gravity of the charges, the
The Persistence of Arbitrary authorities prolonged the applicant’s
and Lengthy Detention detention on grounds that cannot be
The problem of needlessly long deten- regarded as “relevant and sufficient.”
tions still exists, as was revealed when The authorities failed to justify the
Dolgova v. Russia was heard by applicant’s detention on remand and
the European Court of Human thus violated Article 5 § 3 (concerning
Rights.21 Ms. Dolgova, a member of the excessive length of the applicant’s
the National Bolsheviks Party, was detention on remand) of the European
arrested in the waiting area of the Convention on Human Rights.
president’s office where several mem-
bers of her party chained themselves The Future of Pretrial
together in the hope of obtaining Detention in Russia
a meeting with the president. She There are a number of reasons to be
was held in pretrial detention by worried about the future of detention
a court decision on the ground that in Russia, above and beyond the con-
she was suspected of a particularly cerns about jail overcrowding. First,
serious criminal offense. She spent there is an absence of progressive
almost 12 months in custody before political leadership on the issue of
being found guilty as charged and detention. Second, justice officials are
given a suspended sentence of three taking advantage of the new norms.
years’ imprisonment. Third, the profile of defendants may
In its ruling, the ECHR stressed be changing in ways that make them
that while a reasonable suspicion that more likely to be detained. Fourth,
the defendant has committed a grave there are signs that the judiciary is
offense is a requirement for continued impatient with the setting of time lim-
detention, this justification no longer its for trials and is willing to accept
suffices after a certain lapse of time. longer periods of detention before
The European court found that sentencing.

Justice Initiative 115


Pretrial Detention

Elena Mizulina, the MP who without a visa). There is reason to


worked closely with the Putin admin- believe that in Moscow and some
istration to pass the new code, was not other cities there are huge numbers
reelected to parliament in 2004, and of transients, guest workers, and
the absence of her or other liberal lead- others living in the underground
ers in the Duma helps explain why so economy, and when these persons
many regressive amendments were become suspects in crimes, it may be
adopted by the legislature. Most of the necessary to detain them. Otherwise,
counterreforms were proposed by they simply disappear.”22
other deputies on behalf of the
Ministry of the Interior and the Office Two Reasons for Hope
of the Prosecutor General and were
There are, nevertheless, two signs of
intended to strengthen the position of
hope for change in the future. One
comes from a much-maligned politi-
cal innovation in Russia: the so-called
The counterreforms were intended to Public Chamber. The Public Chamber
includes some of the best-known
strengthen the position of law enforcement
and most influential members of
agencies—for example, by increasing the Russian society. Members of the
time allowed for summary investigation. Public Chamber were recruited and
elected under the total control of the
Presidential Administration and have
a right to examine human rights
law enforcement agencies—for exam-
protections in different spheres of
ple, by increasing the time allowed for
public affairs and also have access to
summary investigation and extending
draft laws before their introduction to
the period of time for bringing the
parliament. To many people’s sur-
arrested person before a judge. In a
prise, some of the members of the
short period both the prosecution and
chamber took their responsibilities
the courts have learned how to use the
seriously and started real work in
new rules to their advantage.
revealing societal problems.
It is possible that the profile of
For example, on March 10, 2006,
defendants exposed to the threat of
the well-known defense attorney and
detention is changing, too. Peter
chair of the Moscow State Law
Solomon, an expert on Russian crimi-
Academy, Anatoly Kutcherena, who
nal justice, observed that “While an
chaired the chamber’s Commission
increase in serious crime is unlikely
for Control over Activities of Law
to explain levels of detention or trends
Enforcement Agencies and Judicial
in their use, another factor may matter
Reform, invited Supreme Court
and that is the share of suspects who
Chairman Vyacheslav Lebedev to his
either come from another region or
commission’s meeting and expressed
live illegally in a particular location
his concern about the alarming
(either without registration or even
situation with pretrial detention.

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According to Kutcherena, the statistics the noncustodial punishment, it can


provided by the Federal Enforcement be replaced by incarceration.
Service suggested that levels of According to the Law on
detention are higher today than during Introducing Criminal Code into Force,
the period in which prosecutors all new alternative measures of
themselves decided on detention. restraint should be introduced after
Kutcherena cited figures suggesting “the readiness of the situation” is
that 380,000 had been detained in established—but not later than the
2005. Lebedev disputed this claim year 2005. So in theory, community
and replied that according to court service is already available as an alter-
statistics the figures are much lower native punishment. But unfortunately,
(254,000). Still, the disparity prompt- noncustodial punishments require
ed an agreement to reexamine the their own infrastructure—for exam-
figures and also another meeting with
the commission in order to clarify the
results.23 Progressive changes are not
A second source of hope is the
sustainable without changes
unswerving desire of the prison serv-
ice, which reports to the Ministry of in the attitudes and values of law
Justice, to reduce crowding, diminish enforcement and justice officials.
the use of detention, and introduce
noncustodial punishments for offend-
ers. In December 2005, then–Minister
of Justice Yuri Tchaika called for ple, those sentenced to community
changing criminal policy, decriminal- service must be monitored to ensure
izing some offenses, and restricting they complete the sentence—so their
the use of pretrial detention because of use is still minimal.
overcrowding in SIZOs. It is not clear The use of noncustodial punish-
if this proposal will gain any traction. ment provides some hope for reduc-
One way to reduce SIZO over- ing pretrial detention in Russia in the
crowding is the use of noncustodial future. But for now, the situation is
punishments. The Russian criminal clear: progressive changes—even
code provides for the following non- those introduced by the government
custodial punishments: community itself—are not sustainable without
service, correctional services, liberty changes in the attitudes and values of
restriction, and arrest. These punish- law enforcement and justice officials.
ments may be imposed for commit- Even with the existence of political and
ting certain crimes. Noncustodial pun- institutional support to sustain these
ishment may be imposed based on the changes, nothing can be done without
criminal—for example, if it is his first shifting the attitudes and values of
offense. If the criminal does not serve those implementing the reforms.

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Pretrial Detention

APPENDIX
The table below compares some of the provisions of the new code with the rules in the old CCP.

CCP RSFSR (1961) CCP RF (2001)

1. Speedy Trial Provisions

Detention is presumed to last only two months but is Detention is presumed to last only two months but is
extendable to three months by decision of a district extendable to six months by a district court upon a
prosecutor. Extendable again to six months by decision motion filed by the investigator and approved by district
of a regional prosecutor. prosecutor.

Extendable to 12 months in exceptional cases of grave Extendable to 12 months by a district court in cases of
and especially grave crimes by decision of Deputy grave and especially grave crimes only, or “exceptionally
Prosecutor General. complex cases,” upon a motion filed by the investigator
and approved by a regional prosecutor.

Extendable to 18 months in exceptional cases of grave Extendable to 18 months by a regional court in cases of
and especially grave crimes by decision of the grave and especially grave crimes only, or “exceptionally
Prosecutor General. complex cases,” upon a motion filed by the investigator
and approved by the Prosecutor General or his deputy.
All decisions on extension can be appealed to the higher
court.

No limitation on detention during the trial. (The deten- The period of detention during the trial is limited to six
tion is automatically extended until the end of the trial if months from the moment of receiving the case by the
the judge in the preparation stage decides to keep the judge till the moment of rendering the decision.
defendant in custody.) Extension of this term is possible only for cases of grave
and especially grave crimes for not more than three
months each time. The decision can be appealed again to
the higher court (Article 255).

2. Penal Threshold
Pretrial detention can be ordered only if the offense can Pretrial detention can be ordered only if the offense can
be punished by more than one year of incarceration be punished by more than two years of incarceration
(Article 96). (Article 108).

3. Grounds for Detention


In exceptional cases: detention can be ordered in cases In exceptional cases, detention can be ordered in cases
where, upon conviction, the punishment might be less where, upon conviction, the punishment might be less
than one year of imprisonment. For all crimes specifical- than two years of imprisonment, if:
ly named in the Article, the “dangerousness of the 1) the person has no permanent residence in the terri-
crime” alone is sufficient to justify detention (Article tory of the Russian Federation;
96). 2) the person’s identity has not been established;
3) the person has violated a previously imposed meas-
ure of restraint;
4) the person has fled from preliminary investigation
agencies or from court (Article 108).

4. Habeas Hearings
No hearings. Seventy-two hours of detention before Forty-eight hours’ term of detention of the suspect with-
charges are brought against the suspect (Article 122). out court decision. A court order is required to place sus-
pect into custody (Article 94).

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Notes

Olga Schwartz is project coordinator for the Russian Foundation for Judicial Reform.

1. For a very different account of the politics and consequences of the adoption of the new code of
criminal procedure, see Matthew J. Spence, “The Complexity of Success: The US Role in Russian
Rule of Law Reform” (Washington, D.C., Carnegie Endowment, Carnegie Paper no. 60, July
2005).

2. For an account of these debates by a Canadian scholar, see Peter H. Solomon, Jr., “The
Criminal Procedure Code of 2001: Will It Make Russian Justice More Fair?” in William Alex
Pridemore, ed., Ruling Russia: Law, Crime and Justice in a Changing Society (New York: Rowman &
Littlefield Publishers, 2005).

3. The draft code softened this rule by allowing a prosecutor to request from the court extensions
of the period of detention—for not more than two months on the first application and one month
on the second. Articles 165–170 and 172–177 of the draft code prepared by the Presidential
Administration (Moscow: State Legal Department of the President, 1994).

4. In addition to these restrictions on detention, the new code also provided for the use of
alternative measures of restraint such as house arrest and bail. At the same time, a revision of the
Criminal Code eliminated incarceration as a penalty for a large number of less serious crimes,
which automatically excluded the possibility of detention for those accused of committing those
offenses.

5. See, for example, www.kcl.ac.uk/depsta/rel/icps/worldbrief/world_brief.html.

6. See “Man and Prison” (Moscow: Public Center for Criminal Justice Reform Assistance),
www.prison.org.

7. See, for example, “Human Rights Observation in Perm Region in 2000” (Moscow: Association
of Civil Inspectors), http://control.prpc.ru/pris_04.shtml.

8. See for example, “Comments on Russian Federation by the UN Human Rights Committee”
(New York: United Nations, Doc. CCPR/C/79/Add.54, 1995); see also, “Report to the Russian
Government on the visit to the Russian Federation carried out by the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 2 to 17
December 2001” (Strasbourg: CPT, CPT/Inf [2003] 30).

9. See, for example, the text of his speech in London, November 2002, “The Russian Penal
System: Past, Present and Future,” www.prisonstudies.org.

10. The court noted that the cell in which the applicant was detained measured between 17 m2
(according to the applicant) and 20.8 m2 (according to the government). It was equipped with
bunk beds and was designed for 8 inmates. The court thus recalled that the CPT has set 7 m2 per
prisoner as an approximate, desirable guideline for a detention cell (see the 2nd General Report –
CPT/Inf [92] 3, § 43), i.e. 56 m2 for 8 inmates.

11. Kalashnikov v. Russia, Judgment of July 15, 2002.

12. Irina Andriushechkina, “Arrest as a Measure of Restraint,” Iuridicheskii Konsul’tant, No. 8(44)
(August 1997).

13. The impact of the reforms of criminal justice in the 19th century was studied closely by legal
scholars but not government officials.

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Pretrial Detention

14. See explanatory note to the draft federal law, “On the Amendments to the Code of Criminal
Procedure of the Russian Federation,” introduced to the Duma in December 2002.

15. See the report of Elena Mizulina, “Criminal Procedure Reform—a Year after Adoption of the
New CCP,” presented at the conference of the Russian Academy of Civil Service, 2002.

16. Vyacheslav Lebedev, “Esli sudia nischii, slozhno govorit’ o bespristrastnosti pravosudia,”
Vedomosti, July 1, 2003, www.vsrf.ru/news_detale.php?id=752.

17. See Roy Walmsley “Prison Population Size: Problems and Solutions” presented at a Council of
Europe seminar for judges and prosecutors in the Russian Federation, Moscow, 2000.

18. The text of Article 100 of the CCP RF in 2001 allowed, in exceptional instances, judges to
impose a measure of restraint on a suspect even if charges had not been brought within 10 days.
If no charges were brought within the period specified, however, the measure of restraint was to
be immediately revoked.

19. See the crime reports published on the website of the Ministry of the Interior, www.mvdin-
form.ru.

20. See “Human Rights Activists Demand Amnesty For 40,000 Inmates,” Novye Izvestia, October
25, 2005, http://en.rian.ru/analysis/20051025/41883899.html.

21. Dolgova v. Russia, Judgment of the European Court of Human Rights, March 2, 2006.

22. Solomon, “The Criminal Procedure Code of 2001” in Pridemore, Ruling Russia.

23. Alek Akhundov, “Verkhovny Sud Proschitalsya s Arestami [The Supreme Court Miscalculated
the Arrests],” Commersant-Daily, No. 42 (3373), March 11, 2006. According to the bureau of
statistics in the Judicial Department, this disparity can be explained by the nearly 100,000
defendants who were detained by judges during trial or as a result of a conviction and sentence.

120 Open Society


Case Studies

Frustrated Potential: The


Short and Long Term Impact of
Pretrial Services in South Africa
Louise Ehlers examines South Africa’s services and more informed decision-
short-lived Pretrial Services project and making processes in relation to bail
finds promise in the concept of throughout the country. The institu-
improving bail administration. tionalization of pretrial services did
not occur. Indeed, little further effort
This paper examines the impact of
was made after 2000 to expand the
efforts to improve the administration
BJA model of pretrial services. Today,
of bail on the size, experience, and
even in the three locations in which
management of the awaiting trial pop-
the new approach to bail was piloted,
ulation in South Africa. It also
there are few signs of the original
explores questions about the politics
innovation.
of lasting justice reform. The paper
focuses on one project in particular,
the Pretrial Services project, which
encouraged more rational and equi- Since the first democratic elections
table bail decisions by providing in South Africa in 1994 a wide range
courts with independent information
about defendants. of initiatives has aimed at transforming
The Pretrial Services project was the criminal justice system.
conceived as an experiment and jointly
implemented by the Bureau of Justice
Assistance (BJA) and the South African
The Pretrial Services project was
Ministry of Justice in 1997. The South
not South Africa’s only example of an
African Ministry of Justice and the
effort to improve justice and protect
Vera Institute of Justice, a nonprofit
human rights. Since the first demo-
organization in New York, established
cratic elections in South Africa in
the BJA in 1997. The Open Society
1994 a wide range of initiatives has
Foundation for South Africa provided
aimed at transforming the criminal
support to the Vera Institute for the
justice system as a whole. These
Pretrial Services project.
include legislative amendments to
Upon the completion of a round
penal and procedural law and institu-
of pilot programs in 1999 the project
tional and departmental restructuring.
was officially handed over to the
Some of these reforms endeavored to
Department of Justice by the BJA,
better manage and reduce the size of
under the assumption that the depart-
the prison population. But the Pretrial
ment would then introduce pretrial
Services project was an example of a

Justice Initiative 121


Pretrial Detention

particular kind of reform, a “demon- mon law on bail given judicial officers’
stration project,” that was based on uncertainty about the law’s application
several assumptions about how mean- with the coming into force of the
ingful and lasting change can take country’s post-1994 constitution.
place in criminal justice practices. An An amendment to the Criminal
analysis of this experience yields sev- Procedure Act entrenched the consti-
eral observations about the difficulties tutional notion that an accused person
of launching and sustaining systemic has the right to be released on bail,
transformations of justice systems “unless the court finds that it is in
through discrete experiments and the interests of justice that he/she be
innovation. detained in custody.”3 The new law
This paper describes some of the also obliged judicial officers to play
immediate impacts of the Pretrial an active role in bail proceedings by
Services project on the pretrial pri- seeking out relevant evidence and
sioner population, prison overcrowd- encouraging them to consider all
ing, and bail decisions.1 But its main potentially relevant information per-
goal is not to evaluate that impact.2 taining to bail applications, including
The paper instead focuses on the less the fact that the police require time
visible and harder to measure process- to investigate allegations. Courts were
es by which innovations take place in allowed to postpone bail applications
criminal justice in South Africa and by for seven days for this purpose.
which justice officials think about and Some commentators felt that, “by
accommodate change. Several partici- international standards, the 1995
pants and observers of these changes amendments were strict measures.
were asked what they remember about They provided, for example, for the
this experience, why this demonstra- continued detention of someone who
tion project was launched, and why it might commit further crime rather
was not more closely aligned with than limiting pretrial detention only to
national-level reforms which might those who might not stand trial or who
have increased its sustainability. In might interfere with witnesses or
this sense, the paper is about the other preparations for the trial.”4
strategies for reducing detention and In 1997 the Minister of Justice
the assumptions about lasting change introduced further amendments to the
in justice on which they appear to bail law.5 These changes included,
depend. It is also about the difficulties among others, a new provision where-
of making these changes in environ- by an accused person charged with a
ments of acute public concern about serious offense, such as murder,
crime and public safety, which in aggravated robbery, and rape, is
South Africa remains considerable. detained awaiting trial unless he or
she satisfies the court that “exception-
Restricting Access to Bail al circumstances” exist that in the
In 1995 the South African government “interest of justice” permit release.
sought to clarify and codify the com- At the time a number of scholars cor-

122 Open Society


Case Studies

rectly predicted that the legislative poor handling of cases have resulted
changes would increase the likelihood in bail being granted in serious cases.
that accused persons would be We need to promote legislation that
detained awaiting trial.6 will compel courts to refuse bail under
certain circumstances.”10
Triggers for Legislative Change The legislative restrictions to the
These legislative amendments were an right to bail were part of a broader
attempt by the minister of justice to strategy to enhance the government’s
respond to public concerns about tough-on-crime image and strengthen
crime—concerns that grew alongside the ability of law enforcement to deal
the introduction of democracy and the with crime more effectively.11 Thus, at
demise of apartheid. Some observers
suggest the crime rate spiraled
upward following the transition to
democracy and began to represent a The public remained convinced
threat to democracy.7 It is not clear
whether there was a real increase in that the right to bail was to blame
crime in this period or by how much it for high levels of violent crime.
might have increased. But the per-
ceived growth in crime, at least, and its
wide discussion in the media, had a
strong impact on public perceptions of around the same time as the bail laws
safety and insecurity. were being revised, the South African
government promulgated legislation
Moreover, notwithstanding the
that enhanced the state’s capacity to
tougher bail law, the public remained
combat organized crime and criminal
convinced that the right to bail, per se,
gangs,12 provided for minimum
was to blame for high levels of violent
sentences,13 and restricted the release
crime. This perception was fueled by a
of convicted prisoners on parole.14
number of publicized cases in which
Moreover, the government’s National
bail was granted because of lapses in
Crime Prevention Strategy (NCPS)
the criminal justice process.8 There
was downgraded in importance in
developed a growing belief that judi-
favor of a law-and-order approach to
cial officers were too lenient in granti-
dealing with crime.15
ng bail. In 1996, President Nelson
Mandela expressed the need for “legis-
lation to tighten bail conditions Impact of Changes to the Bail
despite threats by idealists to take the Law on Detention Practices
government to the Constitutional At the time of the 1997 changes to the
Court.”9 Even the minister of justice bail law, some analysts predicted an
was vexed by examples of dangerous increase in the number of unsen-
repeat offenders’ being granted bail. tenced prisoners as a consequence of
In January 1997, he complained: “The the new legislation.16 One study found
insensitivity of the courts and the

Justice Initiative 123


Pretrial Detention

Figure 1: Number of Unsentenced Prisoners,


1995—2005 (annual average)

57,811
60,000 55,524 53,748 54,001 54,069
51,215
47,305
50,000
46,601

37,247
40,000
30,170
30,000
23,783
20,000

10,000

0
1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005

Source: Judicial Inspectorate of Prisons

that the new law had precisely this finalize investigations. There are other
effect.17 According to official data, the possible factors, too, including the
number of unsentenced prisoners increase in the total number of
almost doubled between 1995 and accused. We cannot sort out these
1998 (Figure 1). effects here. All we can say is that the
For any justice system, of course, it changes to the bail law probably
is difficult to draw a direct causal link helped contribute to an increase in the
between legislative change, judicial use of detention.
decision making, and prison popula- During the late 1990s, the signifi-
tion dynamics. The increase in the cant increase in the number of unsen-
size of the unsentenced prisoner tenced prisoners was a major contrib-
population might have many sources, utor to prison overcrowding. Thus,
including an increase in the length while the number of unsentenced
of time accused persons await the final prisoners increased by 143 percent
disposition of their case. And many between 1995 and 2000, the number
people believe there indeed was an of sentenced prisoners increased by a
extension of that wait time in this peri- more modest 26 percent over the
od, due to increased case loads in the same period. In 1995, unsentenced
lower courts, more frequent postpone- prisoners constituted just over one-
ments, poor case flow management, fifth (21 percent) of the total prison
and perhaps even an increase in the population; by 2000 every third pris-
amount of time taken by police to oner (34 percent) was unsentenced.

124 Open Society


Case Studies

Introduction of Pretrial Services the Manhattan Bail Project and its


In 1997, Minister of Justice Dullah replication in many cities throughout
Omar decided to launch a pragmatic the United States during a period of
project to empower judicial officers rising crime and criminal justice
to make more informed decisions in transformation prompted by the grow-
relation to the administration of bail.18 ing civil rights movement, made a per-
In addition to the problem of danger- suasive case to senior decision makers
ous offenders being released by the in the South African justice depart-
courts, there were large numbers of ment to experiment with a similar
indigent persons accused of nonvio- undertaking.
lent offenses—overwhelmingly black
people from poor communities—
remanded into custody because they
could not pay bail. Faced with criticism
Faced with criticism from human
of these practices from human rights rights organizations and budgetary
organizations, budgetary pressures
pressures, Minister Omar supported
from the increase in the prison popu-
lation, and perhaps doubts about the the introduction of Pretrial Services.
fairness of restrictive bail legislation,
Minister Omar supported the intro-
duction of Pretrial Services (PTS). Operational Goals and
The PTS project was one of a range
Political Logic of PTS
of demonstration projects designed, At the launch of the PTS project,
implemented, and tested by the BJA Minister Omar commented that,
over a seven-year period in South “Pretrial Services seeks to achieve the
Africa. The BJA was itself the product constitutional objective of balancing
of an agreement between the South the rights of the accused with the
African Department of Justice and the rights of witnesses, victims, and
Vera Institute of Justice to support indeed of our most vulnerable citi-
the capacity for innovation in justice zens—our children, our women and
administration in South Africa. The communities.”20 Moreover, in a letter
PTS project was conceived in part as a Minister Omar wrote:
result of the success of the Manhattan
The Pretrial Services Demonstration
Bail Project, a pretrial services project
Project is designed to do two things.
initiated by the Vera Institute of First, it ensures that serious or repeat
Justice in New York City in 1961 to offenders are not released on bail and
reduce the amount of jail crowding that petty offenders are released on
that resulted from discriminatory affordable bail or on [non-financial] con-
and arbitrary assignment of high ditions. Second, it seeks to prevent
bail amounts to defendants who could accused and their associates from intim-
not pay bail and thus spent long idating witnesses, thus encouraging wit-
periods of time in jail awaiting trial ness participation in the criminal justice
on minor charges.19 The success of system.21

Justice Initiative 125


Pretrial Detention

It is not easy to divine the with the BJA introduced pretrial serv-
underlying political reasons for the ices as a demonstration project. Its
introduction of the PTS project. Some chief purpose was to provide verified
observers say Minister Omar was a information about accused persons at
strong advocate of human rights their arraignment in court so that judi-
but was unable to advocate openly cial officers could make balanced,
for stronger protection of the rights equitable, and reliable decisions about
of accused persons in a charged politi- bail. The BJA described the objectives
cal environment, and so sought relief of the project in this way:
in a discrete demonstration project
that would balance the pressures PTS provides the court with a report for
all adult accused in custody, containing
verified information about the accused’s
community ties, employment, previous
convictions and other information need-
PTS would facilitate a move ed for a bail decision. This information
away from money-based bail and enables the court to make more appro-
priate bail decisions, which should mean
help reduce the economic injustice that high risk, dangerous and repeat
of incarcerating poor people. offenders are detained while awaiting
trial. More appropriate bail decisions
should also mean that low-risk, petty
first time accused are released from cus-
tody. In order to facilitate this release the
for protecting the public from violent PTS project attempts to strengthen
or intimidating offenders and validat- supervision of bail conditions as a viable
ing the rights of citizens not to be alternative to money based bail.22
presumed guilty and incarcerated
before trial. Members of the Department of
Whatever the motives involved, the Justice (bail officers) and South
stated assumption of this pilot project African Police Service (SAPS) mem-
was that through PTS, the Ministry of bers (supervision officers) staffed the
Justice could change the profile of the PTS offices at the courts. A bail officer
awaiting trial population. In addition took a digital photograph and finger-
to ensuring that dangerous and violent prints of arrested accused persons
offenders would not be granted bail, who were brought to court to apply for
PTS would facilitate a move away from bail and stored this information in an
money-based bail toward release on electronic database. The accused per-
warning with reporting conditions son was then interviewed by a bail offi-
that would help reduce the economic cer to elicit information relevant to
injustice of incarcerating poor people assessing the risk of not complying
who posed no evident threat but could with the conditions of bail, abscond-
not afford to pay bail. ing, offending while awaiting trial, or
Over the course of two years, the posing a threat to witnesses. A super-
Department of Justice in collaboration vision officer would attempt to verify

126 Open Society


Case Studies

basic information provided by the ing facilities. Through this initiative,


accused person, such as home/work witnesses were offered a range of serv-
addresses, familial situation, assets, ices including lay counseling and in-
and income, either by telephone or court witness protection. The rationale
through direct contact with other per- was that by making the courts more
sons in court or the community. All friendly to witnesses, witness appear-
information was then entered on a ance rates would be enhanced. This
computer with an electronic link ensured fewer postponements and
between the PTS office at the court speedier trials, thereby reducing the
and the SAPS criminal record data- likelihood that accused persons would
base, providing information directly forget or otherwise miss their court
from the SAPS database with regard to dates.
accused person’s previous convictions PTS schemes were piloted in one
within three hours of arrest. (This lower court in each of three different
direct link was crucial to the operation provinces: Mitchells Plain Magistrates’
of PTS as a request for an accused per- Court in the Western Cape (launched
son’s previous convictions could other- in August 1997), Johannesburg
wise take up to eight weeks.)
Magistrates’ Court in Gauteng
A report (known as the first appear- (November 1997), and Durban
ance report) was then generated prior Magistrates’ Court in KwaZulu-Natal
to the accused person’s first appear- (May 1998). The sites were identified
ance in court. The report contained a as three of the busiest courts in the
summary of the basic information the country.23
PTS office had obtained from the
accused and other sources, with brief
notes about risk factors that the PTS Impact of the Pretrial
office wanted to bring to the court’s Services Project
attention. A recommendation section The BJA conducted an evaluation of
of the report suggested conditions of the PTS project in March 1999.24 This
release that sought to help minimize was constructed as both a process and
the risks that might have been identi- an impact evaluation, and the findings
fied. For example, if an accused person were developed using comparative
had been charged with an offense baseline data collected in 1997 prior to
involving domestic violence, the PTS the implementation of the project.25
report might recommend that release The evaluation reports provide a com-
be conditional on the accused person’s prehensive breakdown of the findings
having no contact with the com- in terms of changes in bail amounts,
plainant while the case was pending. the use of warnings, and the numbers
In a departure from the model of of people detained awaiting trial. The
PTS developed by the Vera Institute, detailed figures are beyond the scope
the BJA added another component to of this paper. In summary however, it
the South African demonstration proj- was found that the project produced
ect: the management of witness wait- mixed results.

Justice Initiative 127


Pretrial Detention

The evaluation revealed that the over one-fifth (21 percent), while the
project did not have a significant proportion of accused persons who
impact on the profile of detainees had bail denied was halved (Figure 2).
awaiting trial across the three sites.
It also found that there was no signifi- PTS Staff Perceptions
cant change in the bail amounts set at of the Project
the Durban and Johannesburg courts.
To find out what participants thought
Notwithstanding these sobering find-
of the PTS project, I conducted inter-
ings, significant positive changes in
views with a total of 18 people directly
the administration of bail at the
involved in the conceptualization
Mitchells Plain site were identified.26
and implementation of the project.
The median bail amount set by the
These included senior officials within
Mitchells Plain court fell significantly
the Department of Justice, previous
after the introduction of the PTS proj-
ect (from R500 to R300). The propor- employees of the BJA, court personnel
tion of prisoners awaiting trial from from the Justice Department and the
Mitchells Plain who had been granted South African Police Service, and fun-
bail (i.e. accused who could not afford ders of the PTS project. Most of the
the bail set by the court) showed a justice officials interviewed thought
sustained reduction over the period the project had potential and showed
of the research. This figure decreased positive results. For example, the
from the baseline of 75 percent in June interviewees pointed out that the
1997 (the Mitchells Plain PTS office number of detainees awaiting trial
became operational in August 1997) who originated at Mitchells Plain
to below 40 percent in March 1998, court halved during the project’s lifes-
after which it stabilized at around 40 pan. Moreover, information about
percent. This decline is an indication arrested accused—such as where they
that the PTS project provided judicial lived and their employment status—
officers with reliable information on was thought to be helpful to judicial
the amount of bail individual accused officers in deciding whether to release
detainees could afford to deposit with such accused persons and, if so, on
the court. what conditions.
The number of prisoners awaiting Erstwhile bail officers and supervi-
trial from Mitchells Plain declined as sion officers interviewed felt the PTS
the proportion of accused persons project had a positive effect on the day-
released on warning—without any to-day running of the courts.
conditions other than to appear on Specifically, they felt that the project
their specified court date—increased created a framework for informed
from 40 percent to 50 percent decision making around detention
between June 1997 and February decisions. It was noted that the direct
1999.27 Moreover, the use of money link of the PTS office to the SAPS
bail in Mitchells Plain decreased from criminal record database saved signifi-
a third (34 percent) of all cases to just cant time in establishing the criminal

128 Open Society


Case Studies

Figure 2: Bail Decisions at the Mitchells Plain Demonstration Site,


June 1997 and February 1999

60%
50
50%

40
40%
34
30%
21
20%
9
10%
4

% released on warning % released on money bail % bail denied

June 1997 Feb. 1999

record of accused persons. These ben- tion of accused persons was seen as
efits were not limited to Mitchells impeding court productivity from the
Plain. prosecution’s point of view.
Not all feedback was positive, how-
ever. Some interviewees, particularly Justifications for Not Sustaining
judicial officers, felt that the closure of the Pretrial Services Project
the project did not negatively affect the In September 1999, the BJA handed
functioning of the courts. Some prose- over the PTS project to the
cutors interviewed complained that Department of Justice. The handover
the PTS office delayed the holding of of the project was governed by a
bail hearings given the time it took to Memorandum of Understanding
verify information provided by (MoU) signed in September 1999 by,
accused persons. It was also felt that among others, the minister and the
the PTS office unnecessarily duplicat- acting director-general of justice. In
ed the work of other agencies by, for this MoU it was agreed that the BJA
example, independently collecting would relinquish responsibility for the
information already available in the PTS project and donate all equipment,
police’s investigation dockets. In light supplies, and materials to the Ministry
of this, the daily screening and evalua- of Justice. The BJA compiled a start-up

Justice Initiative 129


Pretrial Detention

and training manual for the establish- ponents of the original PTS project are
ment of new PTS sites, which formed the witness waiting facilities and asso-
part of the handover documentation. ciated services.
The Department of Justice undertook It is a widely held view that things
to integrate PTS at the existing three started deteriorating soon after the
sites into its day-to-day operations and BJA handed the project over to the
to consider drafting legislation in sup- Department of Justice. A number
port of PTS. The department further of shortcomings help explain why
undertook to allocate the necessary the project did not take off as planned,
much less continue and expand
after the formal transfer of responsi-
bility for its administration to the
Little of the original PTS model remains Department of Justice.
operational at the pilot sites and the
project has not expanded nationally. Alignment of PTS with Justice
Department Objectives
The experiment with pretrial services
took place at the same time that the
resources to maintain the existing PTS South African government launched
sites and to roll out PTS offices a major initiative to transform the
to other court centers throughout technological infrastructure of the
the country.28 entire justice system. Some of the
The provisions of the MoU reveal components of PTS operations were
the extent of the political support that not easily assimilated into this mod-
existed, at both the ministerial and ernization plan.
departmental levels, for integrating A centerpiece of the South African
PTS into the mandate of the Justice government’s National Crime
Department and replicating it nation- Prevention Strategy (NCPS), which
ally. Yet, at the time of writing, little of was launched in 1996 and introduced
the original PTS model remains oper- a comprehensive new approach to
ational at the three pilot sites, and the addressing crime, was the develop-
project has not expanded nationally. ment of the Integrated Justice System
The equipment funded by the BJA has (IJS). The strategic goal of the IJS
fallen into disrepair, and the original was to integrate and automate the dif-
staff has been redeployed. The police ferent aspects and components of the
collect and verify some information on criminal justice system, and it was
the people they arrest, but this is not backed by an interdepartmental board
done specifically to assess accused per-
(the IJS Board) that itself comprised
sons’ risk of not complying with their
representatives of the departments of
conditions of bail and assist judicial
Justice, Correctional Services, Social
officers in their pretrial decision-mak-
Development, and Safety and Security,
ing process. The only remaining com-
as well as the South African Police

130 Open Society


Case Studies

Service and the National Prosecuting with those being developed by the IJS
Authority.29 In short, the justice sector prior to the handover of the project to
as a whole was preoccupied at this the Justice Department. Cooperation
time with the successful introduction with the technocrats within the rele-
of new technology. vant government departments might
Some officials at the justice depart- have ensured the sustainability of the
ment, moreover, believed then that key BJA’s model.
aspects of PTS would be adequately
covered by the new system and felt Institutionalizing the PTS Project
that the system would do away with There were no institutional struc-
“the explicit need for the separate tures within the Justice Department to
institution of a PTS environment.”30 ensure the continued operation and
Today, a key component of IJS—the replication of PTS; judicial officers
Court Process Project (CPP)—pro- and court personnel at the operational
vides the same linkage of fingerprint level were unaware of the training
and criminal record information that manual for the establishment of new
the BJA piloted.31 PTS sites developed by the BJA.
While it appears that much energy Moreover, there were a number of
was put into developing the relation- other obstacles to the institutionaliza-
ship between the BJA and the tion of the PTS model:
Department of Justice, what is absent
is any real commitment to cooperation Time and Capacity Constraints
between the BJA and the senior mem- The BJA helped implement four dis-
bers of the IJS board despite the close crete projects over a seven-year period,
proximity of their goals. This raises including the development of a prose-
the question: Had there been closer cution taskforce on vehicle hijacking;
collaboration between the two, would a prosecution-led anti-rape strategy;
there have been a more concerted and a plea-bargaining project. Given
effort to ensure that the PTS compo- the scale and complexity of each of
nents were more strategically incorpo- these projects, and the limited capaci-
rated into the broader IJS initiative? ty of the BJA, the two-year period the
One of the views offered by a former BJA allocated to the PTS project
BJA employee is that the BJA would (August 1997 to September 1999) was
have benefited from a strong, locally insufficient to establish and institu-
based (i.e. South African) board that tionalize a PTS model adequately
could have facilitated this cooperation within the criminal justice system.
as well as a range of other transitional Moreover, delays in setting up PTS
processes on behalf of the project.32 sites in Durban and Johannesburg
In retrospect it would have been meant that these sites were functional
helpful if the BJA had made a concert- for less than two years before the BJA
ed effort to ensure that its information ceded responsibility for the project to
technology systems were compatible the Justice Department. It is not sur-

Justice Initiative 131


Pretrial Detention

prising that the results in these two full three-year budget cycle (the time
sites were the most disappointing. period for which South Africa’s gov-
ernment departments plan their
Reliance on External Funding expenditure with the national treas-
The practice of donor-funded foreign ury) and therefore was not able to
consultants providing management monitor how the project was incorpo-
support for a government service is rated into the Justice Department’s
fraught with difficulties. If funding for new spending flow.
a new project is drawn from the rele- The problem most commonly
vant government department from the raised by interviewees was the lack of
outset it is more likely the project will funding for PTS following the han-
dover. According to documentation, as
well as interviews with court person-
nel at the pilot sites, there was uncer-
The practice of donor-funded foreign
tainty about funding for the project.
consultants providing management While it appears that some funding
support for a government service is was allocated for the project at the
national level, dedicated funding for
fraught with difficulties. PTS did not filter down to the
provinces. The perception of person-
nel in the provincial offices of the
be aligned with the broader strategic Justice Department was that they were
plan of that department. It also expected to draw from their core budg-
ensures that there is a clear and realis- ets to support the continuation and
tic appreciation of the costs involved. expansion of the project.
Moreover, human resources depart-
ments in the relevant government Lack of Interdepartmental Cooperation
agencies would be obliged to create This PTS project required a sustained
specific job posts to staff a project and effort in ensuring interdepartmental
ensure that a salary line item is includ- budgeting and cooperation. However,
ed in the overall departmental budget. the project was promoted strongly as a
One year after the commencement Department of Justice project. In light
of the PTS project, the BJA sought of this, there was little assurance from
support from the senior bureaucra- the outset that the departments of
cy—at the deputy director-general Safety and Security and Correctional
level—in the Department of Justice. Services would continue to offer their
This delay cost the BJA the necessary support and personnel once the proj-
financial and personal support for the ect was handed over to the Justice
national expansion of the PTS project. Department. In fact, there were no
As a result, financial support for PTS supporting structures or guidelines
dwindled soon after the handover of for partner agencies such as the SAPS,
the project. The BJA withdrew from resulting in the withdrawal of key staff
the project before working through a seconded to the pilot sites by the police

132 Open Society


Case Studies

and the Department of Correctional to seconded staff members, the BJA


Services shortly after the handover. did not pay salaries, did not formally
On the face of it, the BJA acted influence their performance evalua-
correctly in gaining the buy-in of tions or promotions, and could not
the “right” role players. The accepted formally reward or discipline them.
wisdom is that one needs support This awkward relationship compelled
at the top level in order for a project the BJA leadership to rely on informal
to be institutionalized. The minister incentives to encourage good perform-
of justice was fully supportive of PTS. ance. Moreover, government employ-
He gave the project generous publicity ees who were seconded to the PTS
and co-opted the support of his project complained that their work for
counterparts in other government
departments. It can be argued, howev-
er, that the BJA underestimated the
The BJA underestimated the
importance and the amount of time
it would take to gain the cooperation importance and the amount of time
and trust of the bureaucracy and oper- it would take to gain the cooperation
ational staff within all the relevant
government departments to ensure and trust of the bureaucracy.
the successful implementation of the
project at the level of the three demon-
stration sites. the project went unappreciated and
unrecognized by their government
Staffing Dilemmas employers.33
At the beginning of the BJA’s opera-
tions, a number of senior government The Political Environment
officials were reluctant to implement a It is important to understand the polit-
PTS project because of its potential ical environment at the time the PTS
cost and drain on departmental budg- project was launched. The minister of
ets. As a result, the BJA used existing justice was a veteran of the anti-
Justice Department and police person- apartheid struggle and an enthusiastic
nel, seconded to the PTS project, to implementer of the government’s new
administer and implement the project. transformational agenda. It has been
This was necessary to show that argued that the minister managed the
government could implement PTS transformation of his department
without having to hire new skilled per- rather clumsily, unnecessarily alienat-
sonnel or train existing personnel at ing significant sections of his largely
considerable expense to the state. white professional staff (notably prose-
The BJA consequently negotiated cutors and magistrates).34 The period
with various government departments during which the PTS project was
to obtain the requisite seconded staff being implemented was characterized
to fill the operational positions of the by ongoing wage disputes between the
PTS project. This meant in respect department and prosecutors, resulting

Justice Initiative 133


Pretrial Detention

in strike action as well as an acrimo- of the Justice Department, PTS


nious High Court battle between a received significantly less support
number of white state attorneys and from the new minister, who had other
the Justice Department regarding the priorities on his agenda.
minister’s affirmative action appoint-
ments. It is possible that the PTS proj- Potential for Pretrial Services to
ect failed to thrive because of a gener- Succeed in South Africa Today
al resistance by a significant number
of magistrates and prosecutors to The Prison Population in South Africa
the broader transformational agenda According the International Centre for
of the justice minister. Prison Studies, South Africa’s prison
Hostility toward the justice minis- population rate is the 10th highest
ter on the part of judicial officers was in the world (excluding a few small
especially evident outside the minis- island states).35 In September 2006,
ter’s Western Cape powerbase. This South Africa’s prisons, built to accom-
may be another reason why the modate 115,000 inmates, were hold-
PTS demonstration sites outside of ing 158,500 prisoners.36 Of these,
Mitchells Plain (which is located in 43,600, or 28 percent, were unsen-
the Western Cape) were the least suc- tenced. South Africa’s prison popula-
cessful. While there was no blatant tion rate of 344 per 100,000 of
refusal to implement the PTS project the general population is more than
at any of the three demonstration twice that of neighboring countries
sites, there seems to have been a sub- Zimbabwe and Lesotho.
tle undermining of the process in What are the options for mitigating
Durban and Johannesburg. South Africa’s prison overcrowding
problem? If the government wished
Project Dependency on to reduce overcrowding from pretrial
One Champion detainees, should it focus its efforts
Another issue that should not be on bail reform—that is, reducing
underestimated is the extent to which the number of people placed in
projects are the personal idée fixe of a prison—or shortening the amount
particular individual (in this case, of time it takes to adjudicate the
Minister Omar). Minister Omar joint- cases of those in custody? And what
ly conceptualized and developed the benefit might the resurrection or
PTS project with the BJA and promot- revitalization of Pretrial Services bring
ed and supported the project during to that effort?
his term in office. A new justice min- The answer depends in part on the
ister had been appointed by the time profile of the prison inmates and
the project was handed over to the the sources of prison overcrowding.
Justice Department. While the new Is overcrowding the result of exces-
minister officially undertook to inte- sively long stays in custody while
grate PTS into the broader programs defendants await the outcome of trials

134 Open Society


Case Studies

Figure 3: Unsentenced Prisoners in Custody Three Months or Longer,


1996—2005

12,000

10,000

8,000

6,000

4,000
3-6 months
6-12 months
2,000
more than 12 months

0
1996 1997 1998 1999 2000 2001 2002 2003 2004 2005

Source: Judicial Inspectorate of Prisons

or the result of a consistently high decisions, might help in several ways.


number of accused persons being A number of prisons contain substan-
sent to prison to await trial, even if tially higher than average proportions
their stay there is relatively short? The of unsentenced prisoners. For exam-
answer also depends on what changes ple, South Africa’s most overcrowded
the government can effectively intro- prison at the end of 2005,
duce, irrespective of the sources of Johannesburg Medium A Correctional
overcrowding. Centre, contained 5,599 unsentenced
The direct or immediate contribu- and 152 sentenced prisoners. The
tion of Pretrial Services to the solution prison was built for 2,630 inmates.38
of these problems would be modest Moreover, a large number of people
overall. Most inmates in South Africa are in detention because of the gener-
(72 percent) are sentenced prisoners ally excessive amount of bail, the aver-
and it is this group (particularly those age duration of pretrial detention is
serving long sentences) that is cur- long, and the conditions for unsen-
rently driving the growth in the South tenced inmates are unsafe.
African prison population.37 The over-
all number of unsentenced inmates The Problem of Excessive Bail
has decreased in recent years. And yet The Judicial Inspectorate of Prisons
bail reform, and especially the ration- argues that a significant number of
alization of pretrial processes and accused persons should not be in pre-

Justice Initiative 135


Pretrial Detention

trial custody.39 In particular, the Conditions of Detention


Inspectorate points at the 12,700 The conditions for unsentenced
unsentenced prisoners (almost a third inmates are far worse than for their
of all unsentenced prisoners) who, in sentenced counterparts. Unsentenced
February 2006, had been granted bail inmates do not have access to rehabil-
but were unable to pay the amount set itation programs, they receive no
by the court.40 The courts did not have training or schooling, have little access
an objection to pretrial release for to recreational activities, and can await
these people, provided they deposited trial for periods ranging from a couple
a sum of money with the courts. of days to a number of years.
However, as a result of insufficient Unsentenced prisoners also struggle
information on the financial means of to get access to medical treatment,
the accused or an unwillingness by reading material, bedding, and exer-
the courts to take into account the cise. Even modest reductions in the
personal circumstances of the number of unsentenced inmates
accused, the courts imposed bail would have great significance for the
which thousands of accused simply population of pretrial detainees.
could not afford.
Conclusion
Prolonged Detention While the length of detention has
Unsentenced prisoners spend lengthy increased since the mid 1990s and
periods of time in custody awaiting remains at a high level, the number of
finalization of trial and sentence. We unsentenced prisoners has declined
know that from June 1999 to since 2000, albeit quite modestly in
December 2001 the average number most years. The decrease in the num-
of days in custody for this population ber of pretrial detainees cannot be
increased from 130 to 145 days, or an attributed to one specific event but
average of five months.41 rather to a broad range of factors,
Data provided by the Judicial including a high-profile lobbying cam-
Inspectorate of Prisons reveal that the paign by the Judicial Inspectorate of
annual average number of unsen- Prisons for a reduction in the number
tenced prisoners in detention for three of unsentenced prisoners; the intro-
months or longer increased substan- duction of an integrated case flow
tially between 1996 and 2000 and management system for South
remained at a high level thereafter. Africa’s criminal courts; legislation
Those in detention for more than 12 allowing for the expeditious reduction
months increased phenomenally over of bail amounts;43 the promotion
this period: from 192 detainees in of the use of police bail;44 a drive by
1996 to 6,006 in 2005 (Figure 3).42 the Department of Correctional
Put differently, in 1996 only 0.6 per- Services to increase the use of correc-
cent of unsentenced prisoners spent tional supervision in lieu of pretrial
more than one year in prison; in 2005 detention;45 and the introduction of
almost 13 percent did so. plea bargaining.46

136 Open Society


Case Studies

Pretrial Services would likely however, have only a limited impact on


reduce the number of unsentenced the duration of detention. A range of
prisoners who are granted bail at unaf- other factors outside the control of
fordably high amounts. A PTS pro- PTS, such as the efficiency of the
gram could ascertain and verify an police’s investigations, the availability
accused person’s income and his of witnesses, and the competence of
access to money held by relatives and prosecutors and defense lawyers, may
friends. A PTS program would also all influence the length of the pretrial
encourage judicial officers to make use period and the duration of the subse-
of nonfinancial conditions of bail quent trial.
based on the circumstances of and risk
posed by the individual accused.
Moreover, a PTS program is likely to
recommend the pretrial release (either Pretrial Services would almost certain-
on money bail or some nonpecuniary ly reduce the number of unsentenced
condition) of accused persons who are
currently denied bail altogether
prisoners who are granted bail at
because judicial officers lack reliable unaffordably high amounts.
and verified information about them
and not because the accused persons
in question pose levels of risk that war- South Africa’s PTS project was
rant detention. short lived and was tested in only three
By helping to reduce the number of sites for a limited period. The data is
unsentenced prisoners, a PTS program thus inconclusive. Even so, some
would indirectly contribute to better promising trends emerged from the
conditions of detention. Everything Mitchells Plain site in relation to the
else remaining equal, lower rates of administration of bail. These included
overcrowding in detention facilities the reduction in the median bail
should provide the average detainee amount, the increase in the use of
with more space and better access to warnings as an alternative to money
recreational facilities, medical treat- bail and incarceration, and the result-
ment, and food. ant decrease in the number of people
An effective PTS program could in Pollsmoor Correctional Centre
have some influence on the average referred from Mitchells Plain court
duration of detention. PTS would allow who had been granted bail. Moreover,
judicial officers to conduct bail hear- the decision to allow more accused per-
ings more efficiently. Moreover, a sons to await trial in the community
reduction in unsentenced prisoners did not have a negative impact on the
should result in fewer bail applica- absconding rate.
tions, thereby freeing court time for PTS is no panacea for South
holding trials. As trials are finalized Africa’s inefficient and costly pretrial
more quickly, the average duration of detention regime. PTS can, however,
detention should decline. PTS would, gather better and more detailed infor-

Justice Initiative 137


Pretrial Detention

mation on accused persons than judi- conditions of their release. PTS could
cial officers, prosecutors, or defense assist judicial officers in coming to
lawyers typically have at their disposal fair and rational pretrial decisions—
and use it to guide better decisions and an important service in a country
minimize the chances that a dangerous like South Africa where the poor
criminal will abscond or that an indi- are disproportionately likely to be
vidual is wrongfully detained. Properly detained awaiting trial as they cannot
applied, such services can encourage afford to post bail. In sum, PTS has
courts not to rely unduly on pretrial the potential to balance individual
detention by minimizing the risk of rights to liberty with society’s interest
defendants’ failing to comply with the in public security.

Notes
Louise Ehlers is director, Criminal Justice Initiative at the Open Society Foundation for South
Africa.

1. This paper is not intended as an evaluation of the BJA or its work but as a look at what can be
learned about criminal justice transformation from one of the few projects that has focused
specifically on the pretrial detention population in South Africa.

2. For internal evaluations of the Pretrial Services project by the BJA, see R. Paschke, Process and
impact assessment of the pretrial services demonstration project (Cape Town: Bureau of Justice
Assistance [BJA], BJA Report No. 3, March 1999); M. Baird, Update on the Bureau of Justice
Assistance (report to Dullah Omar, Minister of Justice, and Hishaam Mohammed, Regional Office
of Justice, Western Cape). See also R. Paschke, Accused, their charges and bail decisions in three
South African magistrates courts—baseline information prior to the implementation of pretrial services
(BJA, BJA Report No. 2, November 1998); and R. Paschke, Pollsmoor awaiting trial population
profile and a study of its appearance decisions in Mitchells Plain Magistrates Court: Preliminary results
and the role of the pretrial services demonstration (BJA, November 1997). For a more critical
appraisal of this impact, see W. Scharf, and B. Tshela, “Stumbling at the first hurdle? Pretrial
services project: Lost opportunity in the transformation of the South African justice system,” in
Jonathan Burchell and Adele Erasmus, eds., Criminal justice in a new society, essays in honour of
Solly Leeman (Cape Town: Juta, 2003).

3. Criminal Procedure Second Amendment Act No. 75 of 1995.

4. Jeremy Sarkin, Esther Steyn, Dirk van Zyl Smit and Ron Paschke, “The Constitutional Court’s
Bail Decision: Individual Liberty in Crisis? S v Dlamini,” South African Journal of Human Rights 16
(2000), 297.

5. Criminal Procedure Second Amendment Act No. 85 of 1997.

6. See E. Steyn, “Pretrial Detention: Its Impact on Crime and Human Rights in South Africa”
Law, Democracy and Development 4(2) (2000); and G. Bursey, “Bail – time for a return to sanity,”
De Rebus 33 (September 1999).

7. Scharf and Tshehla, for example, claim that crime escalated dramatically between 1994 and
1996. They contend that the time lag between the dismantling of the old South African system
and the construction of the new proved to be a fertile breeding ground for crime. See Scharf and
Tshehla, “Stumbling at the first hurdle?” in Burchell and Erasmus, Criminal justice in a new society
(2003).

8. One case that received much media coverage was that of an accused man released on bail who
murdered a six-year-old girl shortly before she was to testify against him for allegedly raping her.

138 Open Society


Case Studies

The man had been released on bail of R2,000 despite the fact that the police were investigating
two other allegations of rape against him and that the police were opposed to the granting of bail.
See: “Mamokgethi: and justice for all?,” Weekly Mail & Guardian, July 31, 1998.

9. The Citizen, September 27, 1996.

10. Fast Facts (Johannesburg: South African Institute of Race Relations, March 1997).

11. See M. Schönteich, “Criminal justice policy and human rights in the New South Africa,” Law
and Justice Journal 3, No. 2 (2003).

12. Prevention of Organised Crime Act No. 121 of 1998.

13. Criminal Law Amendment Act No. 105 of 1997; see also J. Sloth-Nielsen and L. Ehlers, A
Pyrrhic victory? Mandatory and minimum sentencing in South Africa, ISS Paper No. 111 (Pretoria:
Institute for Security Studies [ISS], 2005).

14. Correctional Services Act No. 111 of 1998, Chapter VII.

15. Eric Pelser, “‘Operation Crackdown’: The New Policing Strategy,” Nedbank/ISS Crime Index
4(2), (2000), 7–10.

16. See Marion Edmunds, “Restricting bail may limit rights, experts say new bail laws will paper
over the cracks,” Mail and Guardian, June 6–12, 1997.

17. M. Schönteich, Making courts work. A review of the IJS Court Centre in Port Elizabeth, ISS
Monograph No. 75 (ISS, October 2002).

18. The Vera Institute and its South African subsidiary, the Bureau of Justice Assistance, were
instrumental in conceptualizing and developing this intervention and initiated the idea within the
South African justice ministry. A project committee chaired by the minister of justice oversaw the
BJA. With the exception of the director, who was from the Vera Institute, the BJA’s staff were
South African. During its operations in South Africa, the BJA was funded by the Open Society
Foundation for South Africa, Atlantic Philanthropies, and Chase Manhattan Bank and received
some financial support for administrative functions from the Department of Justice.

19.“History,” Vera Institute of Justice, http://www.vera.org/section8/section8_4.asp, accessed


January 15, 2007.

20. Address by Dr. A.M. Omar, minister of justice, at the launch of the Pretrial Services Office,
Mitchells Plain Magistrates’ Court, August 29, 1997.

21. Letter from Minister Omar to the Minister for Safety and Security, Sydney Mufamadi, inviting
the latter to the launch of the Pretrial Services project, August 13, 1997.

22. Paschke, Process and impact assessment of the Pre-Trial Services Demonstration Project, BJA
Report No. 3 (BJA, March 1999).

23. The BJA also played a role in opening a PTS office in Port Elizabeth in 1999, shortly before
the PTS project was handed over to the justice department. The work of the Port Elizabeth PTS
office was neither managed nor evaluated by the BJA. See The Integrated Justice System Court
Centre. A blueprint of the Eastern Cape experience April 1999 – February 2002 (Port Elizabeth:
Business Against Crime, 2002).

24. Paschke, Process and impact assessment (BJA, March 1999).

25. See Paschke, Accused, their charges and bail decisions in three South African magistrate’s courts –
baseline information prior to the implementation of pretrial services, Report No. 2 (BJA, 1998).

26.Interviews with court personnel indicate that the Mitchells Plain site went furthest in
implementing the PTS model and experienced less bureaucratic and political resistance than the
other two sites.

27. Paschke, Accused, their charges and bail decisions (BJA, 1998), 31–32.

Justice Initiative 139


Pretrial Detention

28. Memorandum of Understanding, between the South African Ministry of Justice and the
Bureau of Justice Assistance, September 2, 1999.

29. H. Ebrahim, The Integrated Justice System: How far we’ve come, SDR 2, No. 3 (2003).

30. “Embedding the functionality of the Pretrial Services (PTS) demonstration in the Court
Process Project (CPP)” (Department of Justice).

31.Pieter Du Rand, Chief Director, Court Services, Department of Justice, Towards an integrated
justice system approach (Cape Town: Centre for the Study of Violence and Reconciliation, Criminal
Justice, a new decade: Consolidating transformation, conference paper, February 7–8, 2005).

32. A South African BJA board was eventually established in 2002, but this was only after the
handover of the PTS project to the Department of Justice.

33. Michelle India Baird, Ten lessons learned from the Bureau of Justice Assistance (New York: Vera
Institute of Justice, unpublished briefing paper, October 2005), 7.

34. See, M. Schönteich, Lawyers for the people: The South African prosecution service, ISS Monograph
Series, No. 53 (ISS, March 2001). Magistrates are judicial officers who work in South Africa’s
lower courts. All three PTS demonstration projects were situated at the level of the lower courts.

35. World Prison Brief (London: International Centre for Prison Studies [ICPS]), www.prisonstud-
ies.org/, accessed January 16, 2007.

36. Statistics (Department of Correctional Services), www.dcs.gov.za/WebStatistics/, accessed


January 16, 2007.

37. C. Giffard and L. Muntingh, The effect of sentencing on the size of the South African prison
population (Cape Town: Open Society Foundation for South Africa, 2006).

38. Annual Report 2005/2006 (Cape Town: Judicial Inspectorate of Prisons), 20, http://judi-
cialinsp.dcs.gov.za/Annualreports/ANNUAL%20REPORT%202006.pdf, accessed January 16,
2007.

39. The Judicial Inspectorate of Prisons is a statutory body mandated by Parliament to monitor
prison conditions and report on the treatment of prisoners.

40. Annual Report 2005/2006 (Judicial Inspectorate of Prisons), 28–29,


http://judicialinsp.dcs.gov.za/Annualreports/ANNUAL%20REPORT%202006.pdf, accessed
January 16, 2007.

41. T. Leggett, A. Louw, M. Schönteich, and M. Sekhonyane, Criminal Justice in Review: 2001/2002,
ISS Monograph No. 88 (ISS, November 2003).

42. Annual Report 2005/2006 (Judicial Inspectorate of Prisons), 14,


http://judicialinsp.dcs.gov.za/Annualreports/ANNUAL%20REPORT%202006.pdf, accessed
January 16, 2007.

43. One of the key contributors to the awaiting trial population is unaffordable bail. A 2001
amendment to the Criminal Procedure Act allows the head of a prison to apply to court on behalf
of prisoners in a particular facility to have their bail amounts reduced.

44. In respect of minor offenses, the Criminal Procedure Act allows for the police to grant bail
without the case’s going to court.

45. The Criminal Procedure Act allows three options for release of an accused prior to trial.
Namely, release on warning, bail, or under the supervision of a correctional officer in lieu of bail.
The Departments of Justice and Correctional Services are promoting the latter option.

46. An amendment to the Criminal Procedure Act in 2001 introduced a formalized system of plea
and sentence agreements to achieve a quicker turnaround time on cases, thereby reducing both
the backlog in the lower courts and the number of prisoners awaiting trial.

140 Open Society


Case Studies

Pathway to Justice:
Juvenile Detention Reform
in the United States
D. Alan Henry considers the problem arrest.” This paper will discuss juve-
of juveniles in pretrial detention in the nile detention—the detention of juve-
United States and a novel project that niles charged with a criminal act pend-
reduced their number. ing disposition of their charge—and
In the United States, the presumption discuss one simple way to reduce it
of innocence is a constitutional guar- that has been shown to work in vari-
antee and a pillar of the criminal jus- ous different states of the nation.
tice system. Perhaps as a result, there In the United States, the juvenile
are numerous pretrial service agencies justice system was created to empha-
throughout the nation that provide size—to a greater degree than the
risk assessments to judicial officers to adult system—rehabilitation and care-
aid in the release or detention deter- taking. For this reason, juveniles are
mination, as well as supervision serv- almost always detained separately
ices for persons deemed to require from adults, go to a different court
them for safe pretrial release. These than adults, and have different sen-
supervision services include drug test- tencing guidelines if convicted.2
ing, monitoring of house arrest, elec- A central principle of this system
tronic monitoring, and more. Given holds that the detention of juveniles
the constitutional framework and the should be an exceptional event.3
existence of supervision alternatives to Unfortunately, this principle has been
detention, it may be surprising to find more or less abandoned in favor of a
that there are many pretrial detainees juvenile system that increasingly
in the United States. resembles the adult criminal justice
The problem of pretrial detention system and emphasizes incapacitation
in the United States is complex and and punishment. As a result, the
multifaceted, in part due to the differ- detention of juveniles in the United
ent ways in which each of the 50 states States is anything but exceptional.
has developed its criminal justice and Juvenile detention in the country
corrections systems.1 To add complexi- increased by 72 percent between 1985
ty, the term detention in the United and 1995,4 and existing juvenile facili-
States is used in various forms. A for- ties did not expand to handle this
eign national found in the country increase. During that same period
without proper documentation, for the number of detention facilities
example, is held in “detention,” which categorized as overcrowded grew from
is distinguished from being “under 24 to 178.5

Justice Initiative 141


Pretrial Detention

To address this problem a reform The Problem of Juvenile Detention


effort called the Juvenile Detention The pretrial detention of juveniles,
Alternatives Initiative (JDAI) was though not a new problem in the
developed and supported by the Annie United States, has seen a significant
E. Casey Foundation, a private philan- spike in numbers over the past 30
thropic organization. This reform years. Between 1985 and 1995, the
effort has proven successful in reduc- number of juveniles locked up in
ing juvenile detention—both admis- detention centers nationwide on an
sions and lengths of stay—in pilot average day went from 14,000 to near-
jurisdictions across the country. The
ly 23,000—an increase of approxi-
JDAI supported a number of local
mately 72 percent.9 In the same peri-
governments in effecting changes
od, the number of overcrowded deten-
that would reduce the placement of
tion centers in the United States
increased by 640 percent, from 24 to
Juvenile detention in the 178 facilities. And the percentage of
juveniles held in overcrowded facili-
United States increased by 72 percent ties tripled, from 20 percent to 62 per-
between 1985 and 1995. cent. For some observers, another sta-
tistic was the most disturbing: during
the same period, operating expenses
juveniles in detention. One tactic for public detention centers more than
employed involved improving the doubled, from $362 million to $820
speed with which courts adjudicated million.10
cases, thereby reducing the number The growth in detention of juve-
of juveniles detained pretrial. niles created many problems for
What follows is a description of states, counties, and cities, and these
part of this initiative and of the role problems followed a similar pattern.
played by the Pretrial Services Crowding forced facility administra-
Resource Center (PSRC),6 a non- tors to rearrange existing space to hold
governmental organization based in the increasing numbers of juveniles.
Washington, D.C.7 Between 1993 and Classroom and recreation areas were
2004, the Annie E. Casey Foundation the first to disappear, followed by the
contracted with PSRC to support the implementation of double- and triple-
efforts of the JDAI pilot sites to reduce bunking. The indefensible conditions
the amount of time in adjudicating of confinement that resulted created
criminal cases against juveniles.8 legal problems for governments.
As part of this work PSRC interviewed Lawsuits were often filed challenging
justice leaders, supported a process the legality of the crowding and the
of deliberation and research into conditions of confinement that result-
processing patterns, and helped local ed.11 Violent incidents in these facili-
officials as they sought to achieve ties involving the incarcerated juve-
greater efficiency and introduced alter- niles and facility staff became com-
natives to detention. monplace.

142 Open Society


Case Studies

Finally, the courts stepped in, fre- g A further 34 percent were incarcer-
quently ordering changes in facilities ated for technical violations of pro-
to establish adequate care and safety bation requirements and status
for the incarcerated juveniles. But offenses. These violations included
missing a court date, breaking a rule
court orders failed to ameliorate the
of probation, or otherwise violating
problems, given that many county and
a court order;
state justice systems, already financial-
ly strapped, were unable to absorb the g The remaining 29 percent were
costs of implementing these orders. detained on violent charges,
Even for relatively wealthy jurisdic- although some were not classified
tions there was a more basic and trou- as major.12
bling question: “Why is this happen- Similar findings surfaced in other
ing and who’s to blame?” jurisdictions in the early- to mid-
To add to the complexity of the 1990s. Because of the level of the
offenses many of those detained did
problem, criminal justice decision
not appear to require incarceration.
makers—judges, police, probation
Nevertheless, the number of juveniles
officers, prosecutors, and other elected
detained continued to increase dra-
officials—erroneously believe that the
matically, and while federal courts
juveniles detained are too dangerous were ordering change, the causes of
to be released and few alternatives to the problem and its solutions
detention exist. This perception has remained elusive.
been proved unfounded by surveys
that examine detention populations. A Better Way
These reveal that many juveniles held
in facilities are charged with minor “It is probably fair to say that no area of
offenses and/or technical violations of domestic policy—not even welfare—has
probation, not with the commission of been so thoroughly abandoned to misin-
violent crimes. One of the JDAI sites formation, overstatement, oversimplifi-
took a “snapshot survey” of the juve- cation, emotion and disregard for conse-
quences as has the arena of juvenile jus-
niles in their county detention facility
tice.”
on a randomly chosen day in 1995,
— Douglas W. Nelson, President, Annie E.
revealing the following: Casey Foundation

g Of the population of detainees,


seven percent were charged with In 1993, the Annie E. Casey
drug offenses; only one-sixth of Foundation launched a multiyear,
those were charged with selling or multisite project known as the
distribution of narcotics; Juvenile Detention Alternatives
Initiative (JDAI). Its aim was to
g Another 30 percent were detained demonstrate that governments could
for property, public order, and establish better systems to accomplish
“other” charges; the actual purposes of juvenile deten-

Justice Initiative 143


Pretrial Detention

tion. Experts in juvenile law, alterna- During a lengthy planning period


tives, programming, management, in each site stakeholders and the foun-
community outreach, and research dation jointly selected areas of primary
were called together from around focus and prepared for the work of the
the country to help the foundation initiative. Some places made efforts to
devise a plan for taking on this nation- reduce time spent on special detention
al problem. cases; others targeted the conditions of
The idea that emerged and that confinement. In all of the sites local
guided all subsequent efforts was sim- governments tasked newly formed
ple but challenging: transfer responsi- committees of justice officials to study
bility for the solution of the problem judicial processes and outcomes in
from delinquent juveniles to adults in three main areas:
positions of public power. According
1) How admission to detention deci-
to Bart Lubow, the senior associate at sions were made;
the foundation who has headed the
national JDAI project since its incep- 2) How cases were processed through
tion, “Even people who work in the the juvenile justice system from
juvenile system largely operate as if arrest to disposition—the focus of
things will only get better if the kids this paper; and
start behaving differently…. JDAI took
3) Whether there were sufficient
a different tack. It sought to change
alternatives to detention for deci-
the way the adults who operate, guide,
sion makers to reach just deci-
monitor, or support the system behave
sions.
as a prerequisite to any change in juve-
nile conduct and any improvements in In each site a JDAI manager was
public safety or the quality of justice.”13 appointed. The manager’s primary job
was to coordinate the various JDAI
The Casey Foundation initially
efforts within the jurisdiction and to
identified five local governments in
schedule technical assistance visits
which to try to inculcate a more swift
from the foundation as needed.
and accountable process of adminis-
tering juvenile justice. Each local
government received a planning grant The Role of the Pretrial
from the foundation and the opportu- Services Resource Center
nity to receive financial support to PSRC was brought into the initiative
implement changes proposed in the to provide case processing assistance
planning process. The five sites to the sites. PSRC also worked with
selected were Portland, Oregon; other technical assistance providers
Sacramento, California; Chicago, such as the Center for the Study of
Illinois; Milwaukee, Wisconsin; and Youth Policy in developing alternatives
New York City. Two of the sites—New to detention (such as electronic moni-
York and Milwaukee—subsequently toring) and risk assessment instru-
decided to withdraw from the initiative ments that helped officials evaluate
due to insufficient local support. objectively the needs of juveniles and

144 Open Society


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the likelihood of reoffending. The So while judges and other actors


focus of PSRC’s work was changing didn’t believe they were responsible
the way cases were processed. PSRC for correcting the crowding problem,
had extensive experience in case pro- they were willing to listen to informa-
cessing and its impact on institutional tion and suggestions about changing
crowding, but up to this point its work their practices to make the system
had been limited to adult jail systems; more efficient and just.
this was the first foray into the juvenile Multiple visits to each of the sites
field. PSRC staff was relieved to find and one-on-one interviews with the
that much of their experience was critical actors in the system—judges,
transferable to the juvenile system and probation officers, prosecutors,
that many of the techniques and data defense, and detention facility admin-
requirements were virtually identical. istrators—were conducted. The inter-
views sought descriptions of all the
The Diagnosis steps in the process, from arrest to
It was not automatically assumed that disposition of the case. While the
poor case processing was a part of the interviewers focused on the particular
pretrial detention problem in the three work done by the person interviewed,
sites. Each site had different time lines they also asked interviewees about the
for case processing; some were faster system’s workings in general in order
than the others. But while it was not to learn their perceptions of how the
assumed that case processing delays system operated.
were a cause of crowding, there was a The hypothesis, based on case
strong and shared belief that a review processing efforts in other courts, was
of case processing in the sites might that front line officials—prosecutors,
reveal opportunities to increase effi- judges, and defense lawyers—often
ciencies and improve the justice sys- did not know how long cases could
tem, no matter how fast cases were take if not closely monitored and
currently processed. had little understanding of the needs
The difference between increasing and routines of their justice system
efficiencies, on the one hand, and partners.
reducing detention, on the other, JDAI’s assessment supported this
was critical for site personnel. The hypothesis: interviews uncovered sig-
assumption that case processing pat- nificant disparities between reality and
terns must change in order to reduce the interviewees’ perceptions of how
crowding was not welcomed by the other system actors worked. For
all judges, prosecutors, or defense example, when a defense lawyer was
lawyers. As one judge pointed out, asked how long it usually takes a pro-
“My job is to adjudicate according bation officer to prepare a placement
to the laws of this state. Where they recommendation,14 the response was,
put them is up to [the facility adminis- “They have thirty days, but they always
trator]. Finding beds is his job; not take longer so I take that into account
mine.” when asking for my next court date.”

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Pretrial Detention

Yet probation officials said they were of choices that if adopted would
capable of making placement recom- decrease the time to disposition.
mendations in a matter of days, if A question that arises when talking
required, and that only a very few about improving case processing is,
cases required more than two weeks. “why didn’t the governments do it
In another instance, a juvenile court themselves?” There are two answers to
judge believed that he was compelled this question: first, the local profes-
to provide a continuance in a case,15 sionals certainly had the capacity and
“if the defense and prosecution the intelligence to identify areas for
change; in fact, they often made sug-
gestions during the interviews that
The hypothesis was that front line were incorporated into the recommen-
dations and work plans. But as out-
officials—prosecutors, judges, and siders, the JDAI staff members were
defense lawyers—had little understanding able to ask questions that would be dif-
ficult for system actors to pose to each
of the needs and routines of their
other about how they work.
justice system partners. Second, there is the reality of
bureaucratic inertia, even in courts.
Several interviewees cited a culture in
agree”—only to find that another which certain processes were followed
judge in his court sets a limit of one simply because they had always been
continuance per case except in the followed.
most desperate circumstances.
Similarly, the interviews often The Intervention
turned up forms and reports that Armed with information about how
where not required, investigations that the systems actually worked and a list
were no longer necessary, and other of suggested changes, JDAI proposed
repetitive or wasteful practices.16 action, beginning with the acknowl-
Finally, a map of the stream of deci- edged leader of the local juvenile jus-
sions and actions taken by each actor tice system, the chief judge. The chief
and agency in the justice system was would be thoroughly briefed on the
created to see if any particular steps suggested/recommended changes;
could be eliminated or combined with why they made sense, how they would
another step and whether any of these improve case processing, the data sup-
steps could be completed more quick- porting the need for the changes, and
ly. Where possible, at least one exam- reports from other jurisdictions where
ple was provided of another jurisdic- the proposed change(s) had already
tion where the suggested change was been adopted.
already in place. After obtaining the support of the
The goal was to provide the key chief judge, other members of the
actors with a series of options, a menu JDAI committee were briefed, either

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Case Studies

individually or together. Finally, the tion court. It was standard practice for
committee members would decide the initial appearance judge to set the
when the changes would be imple- next court date for 15 days thereafter,
mented and in what order. during which the juveniles were rou-
The actual changes introduced at tinely detained. By order of the chief
each site varied, but they all fell into judge, this practice was eliminated:
one of four categories: early disposi- every case in the initial appearance
tion efforts; early prosecutorial screen- court is now heard the very next day in
ing; continuances; and post-adjudica- its assigned court. This simple adjust-
tion hearings. ment has significantly reduced unnec-
Early disposition efforts began by
first identifying the types of cases that
might be concluded quickly—cases
where there was general agreement as The case processing segment of the
to their likely final disposition. These JDAI effort had a noticeable impact on the
were usually minor cases in which the
juvenile had little or no prior criminal detention problem in the selected sites.
activity. Such cases would then be
accelerated to their agreed upon dispo-
sition, usually by an identified judge
who would hear the cases at a certain essary detention. In other sites, con-
time every day. tinuances began to be scheduled for
the earliest date available on the calen-
Early prosecutorial screening was
dar of the court; no longer did the con-
very similar but involved all cases
venience of the adversarial parties gov-
entering the system. In some of the
ern the selection of the next hearing
sites, cases brought into the system
date.
after arrest would have to wait a
lengthy period of time before the pros- Other changes included earlier
ecutor’s office was ready to file a for- intervention by defense, better notifi-
mal case in court. The juvenile would cation to defendants and victims as to
have to remain in detention during court dates, earlier court action on pro-
that time. With this screening acceler- bation violations and other adminis-
ated, cases that would eventually be trative hearings, and tighter schedul-
dropped could be dismissed immedi- ing rules for the court, all of which
ately, saving detention and court time. reduced the number of continuances
and length of detention.
Continuances were addressed by
the sites in three ways: reducing the In two of the sites it was found that
number of continuances; reducing the detention time didn’t end when the
number of days between continu- case was adjudicated. Juveniles were
ances; or both. For example, in one held for weeks while probation offi-
site all new cases were brought to a cers developed a plan for their super-
single court for their initial appear- vision or tried to find a facility that
ance and then assigned to an adjudica- could accept the juvenile. In one of the

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Pretrial Detention

Changes in case processing time in Cook County and Sacramento County,


1994 and 1997

190 73
200 80
124 51
150 60

100 40

50 20

0 0
Cook County Average Case Sacramento County Average Case
Processing Time, Days Processing Time, Days

1994 1997 1994 1997

sites the procedures for preparing Perhaps most important, all three
placement plans were streamlined. sites were successful in substantially
The new procedures still provided the reducing case processing times
sentencing judge with the critical for juveniles in detention: 39 percent
information needed but eliminated in Chicago, 28 percent in Portland,
other extraneous material, resulting in Oregon, and 43 percent in
a shortening of the time between the Sacramento.17
adjudication and the actual sentenc- The changes had other beneficial
ing/placement. effects for the justice systems. In theo-
ry, decreasing case processing times
The Impact should also decrease the rate of fail-
The case processing segment of the ures to appear (FTA) for court.
JDAI effort had a noticeable impact FTAs have a corrosive effect on the
on the detention problem in the select- entire court system, as witness partici-
ed sites. The data collected showed pation, delivery of evidence, and coor-
that case processing times in all three dination of juries is affected at a siz-
sites decreased significantly. In Cook able expense to the court. In addition,
County (Chicago), the average delin- victims suffer: they must return
quency case took 190 days to disposi- repeatedly to court and can become
tion in 1994. By 1997, that number more disappointed with the justice
had been reduced by 35 percent, to system with every delay. The new
124 days. Sacramento County lowered attention to case processing and
its average case processing time for reduction in time seemed to carry over
a delinquency case from 73 days in to FTAs, particularly in one site.
1994 to 51 days in 1997, a reduction of In 1994, the Juvenile Court in Chicago
30 percent. had a 38 percent failure to appear rate,

148 Open Society


Case Studies

according to the court clerk. By the were juveniles detained for shorter
second quarter of 1995, when case periods, but the counties recognized
processing changes had been imple- savings in the cost of running their
mented, the rate had dropped below correctional facilities.
20 percent and remained there
through the end of 1996, when track- Sustaining Change
ing ended. The other two sites began Sustaining reform in any system is dif-
with low FTA rates and maintained ficult, and the U.S. juvenile justice sys-
them during the same period. tem is no exception. The work of the
Cases can be processed differently
without added cost; it involves simply
a change in the rules governing how Officials identified two factors that
long a particular activity will take. they believed were critical to the
Although each of the sites was given a
planning grant and was eligible for up success of case processing reforms:
to $2.25 million over the first three collaboration and timing.
years of the initiative to assist in
implementing the many recommen-
dations that were made, this money Casey Foundation continues to this
was used primarily in other areas of day, with new sites being introduced to
the initiative: developing a risk assess- the JDAI concepts and practices, while
ment protocol and instrument, subsi- sustaining change remains one of the
dizing the start-up of new alternative foundation’s goals.19
programs, hiring temporary help to As for the first three sites selected,
allow system actors to continue their the reforms and improvements made
day-to-day work while data collection by the sites during their JDAI experi-
and/or research was undertaken, and ence are solidly in place at the time of
other critical activities for the site. writing. The three counties discussed
Finally, speedier court processing here have replaced the foundation’s
reduces the harmful impact of delay support and taken on the fiscal
on the juvenile. Slow justice postpones responsibility of continuing these
the acceptance of responsibility. efforts after experiencing their eco-
As Jeffery Butts, a noted researcher in nomic, social, and practical benefits.
the area of juvenile courts claimed:
“When the arrest for an alleged A Final Note
offense is followed by months of inac- Officials at the three sites identified
tion before disposition, the juvenile two factors that they believed were crit-
will fail to see the relationship ical to the success of case processing
between the two events.”18 reforms: collaboration and timing.
In sum, JDAI’s efforts to reduce While other system changes—such
case processing times had a signifi- as improving detention facilities or
cant effect in the three sites. Not only introducing new programs—were

Justice Initiative 149


Pretrial Detention

introduced comparatively easily during detention reform. “You have to build


the JDAI experience, most of these up trust before you take on case
could be implemented by a single sys- processing,” said one of the judges,
tem actor. Case processing changes, “get some little wins first.” A public
however, needed the support of all the defender from another site agreed:
system actors to occur, and as such, “Case processing takes such a high
required a great degree of collaboration degree of collaboration and confidence
and coordination between these actors. and trust among all the players…it
Second, the site officials felt strong- probably would be easier to start with
ly that case processing should not be a something that would be easy to
site’s first effort in addressing juvenile achieve and build from there.”

Notes

D. Alan Henry is the former executive director of the Pretrial Services Resource Center, now
known as the Pretrial Justice Center.

1. Under the U.S. Constitution, individual states are given great latitude as to the definition of
criminal acts and the responses to such acts. As long as the state criminal laws do not conflict
with the federal constitution, the federal government will rarely interfere.

2. For over 60 years the U.S. Supreme Court has recognized that minors are different in the eyes
of the law. As one noted jurist stated, “Children have a very special place in life which law should
reflect. Legal theories and their phrasing in other cases readily lead to fallacious reasoning if
uncritically transferred to determination of a state’s duty towards children.” May v. Anderson, 345
U.S. 528, 536 (1953), (Justice Frankfurter concurring opinion). For a review of Supreme Court
holdings related to the special circumstances of juvenile offenders see, for example, Bellotti v.
Baird, 443 U.S. 622, 635 (1979).

3. For further background information about the juvenile system in the U.S., contact the Center
on Juvenile and Criminal Justice, www.cjcj.org, or the National Juvenile Detention Association,
www.njda.com.

4. Census of Public and Private Juvenile Detention, Correctional and Shelter Facilities, 1985–1995
(Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention, 1996).

5. Ibid.

6. The author was the executive director of the Pretrial Services Resource Center from 1982 to
2006.

7. For more information on the Pretrial Justice Center, contact: www.pretrial.org.

8. This account draws from the Casey Foundation’s series of publications, Pathways to Juvenile
Reform, particularly one of the publications, No. 5, “Reducing Unnecessary Delay,” which I wrote
for the Foundation in 1999. Persons wishing to learn more about this reform effort are
encouraged to contact the Annie E. Casey Foundation at www.AECF.org.

9. See, “Reducing Unnecessary Delay,” 4. The statistics in this paper focus on the period
immediately preceding JDAI’s reform effort. The number of detained juveniles in more recent
years has in fact decreased. See percent change from 1997 to 2003 on the Juvenile Offenders and
Victims 2006 National Report at the U.S. Department of Justice web site,
http://ojjdp.ncjrs.org/ojstatbb/nr2006/downloads/chapter7.pdf.

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Case Studies

10. See “Planning for Juvenile Detention Reforms,” Pathways, No. 1 (JDAI, 1995), 10.

11. While pleas were sometimes filed by individual defense lawyers, in most instances national
groups such as the Youth Law Center, the Juvenile Law Center, and similar not-for-profit entities
either filed the initial pleadings or came in as partners to the filings.

12. See “Reducing Unnecessary Delay,” 5. The term “status offenses” traditionally refers to
infractions such as missing school, out after curfew, and other minor infractions. Some of
these juveniles were held simply because no adult could be located to take custody of them.

13. R. Stanfield, The JDAI Story: Building a Better Juvenile Detention System (Baltimore:
Annie E. Casey Foundation, 1999), www.aecf.org/publications/data/overview.pdf., 9.

14. “Placement recommendation” is the term used for the recommendation that probation
officers make about the type of supervision a child should receive. The word “placement”
specifically refers to the juvenile being “placed” or assigned to a program (such as substance
abuse or mental health treatment program), a school, or a type of facility (such as a group
home or other correctional facility).

15. A “continuance” in the United States is a postponement of a hearing to a later date.


Usually it is granted when parties in a case need more time to prepare and/or the court must
wait for evidence or reports from other agencies.

16. For other examples, see, “Reducing Unnecessary Delay,” 40–41.

17. R. Stanfield, The JDAI Story: Building a Better Juvenile Detention System (Baltimore:
Annie E. Casey Foundation, 1999), www.aecf.org/publications/data/overview.pdf.

18. See J. Butts, Waiting for Justice (Pittsburgh: National Center for Juvenile Justice, 1996), 4.

19. For up-to-date information on the AECF’s JDAI work please visit their web site
http://www.aecf.org/initiatives/jdai/index.htm.

Justice Initiative 151


Pretrial Detention

Studies in Reform:
Pretrial Detention Investments
in Mexico, Ukraine, and Latvia
Efforts to improve the practice of pre- abuses in overcrowded prisons, and
trial detention can employ many differ- promotes social and economic disloca-
ent strategies—and encounter many tion for detainees and their families.
different obstacles. Current and former
Justice Initiative personnel Benjamin
The Justice Initiative s
Naimark-Rowse, Martin Schönteich,
Mykola Sorochinsky, and Denise Programming Methodology
Tomasini-Joshi describe three reform Consistent with international stan-
efforts supported by the organization. dards, the Justice Initiative aims to
rationalize resort to pretrial detention,
and to encourage its use only where
there is a genuine risk of flight,
There should be less detention, obstruction of justice, or serious fur-
ther criminal activity. In short, the
shorter periods of confinement, Justice Initiative believes there should
and better conditions for inmates. be less detention, shorter periods of
confinement, and better conditions for
inmates. It is also interested in
strengthening the role of international
Introduction norms, and especially human rights
In many countries where the Open standards, in the process of adminis-
Society Justice Initiative works, arrest tering criminal justice in the pretrial
is often arbitrary, pretrial detention is phase, and it hopes to prevent dis-
unduly prolonged, the conditions of crimination in the application of
detention threaten public health, and detention. The Justice Initiative works
vulnerable groups suffer dispropor- to accomplish these objectives by:
tionate confinement. The hazardous
g promoting alternatives to pretrial
situation to be found in many pretrial
detention centers around the world detention through research and
provided the initial impetus for the advocacy, developing demonstration
Justice Initiative to select pretrial projects, and providing technical
detention as an important area of assistance to pretrial detention
reform initiatives;
focus. Excessive and/or prolonged pre-
trial detention not only undermines g promoting the adoption of interna-
the rights to liberty and speedy tional pretrial detention standards
process, but contributes to other rights and norms in domestic criminal

152 Open Society


Case Studies

justice systems, and highlighting vision center. These three country-spe-


the gaps between a state’s de jure cific projects are reviewed in detail
and de facto compliance with inter- below.
national standards;
g positively influencing public opin- Mexico: New Laws
ion on the issue of pretrial deten- Require New Practices
tion; and The use of pretrial detention in Mexico
is widespread, rigid, and excessive—it
g documenting and interpreting pre- is the rule, rather than the exception.
trial detention initiatives which have Traditionally, Mexico’s federal and
succeeded in reducing the use and state constitutions and criminal proce-
the negative consequences of pretri- dure codes govern the use of pretrial
al detention.

Justice Initiative Interventions In much of Mexico, pretrial detention is


The Justice Initiative has developed a
mandatory for persons charged with
number of projects that aim to reduce
and rationalize the use of pretrial a wide range of “grave” crimes.
detention in compliance with interna-
tional standards, and promote alterna-
tives to pretrial detention. In 2002-05,
the Justice Initiative worked in Latvia detention, which is mandatory for
persons charged with a wide range
to reduce the number of juveniles and
of “grave” crimes. Contrary to interna-
young adults held in pretrial deten-
tional standards, which require that
tion, through the establishment of
pretrial detention be used in excep-
pilot pretrial release programs in the
tional and narrowly circumscribed
form of bail supervision centers.
circumstances only, Mexican law com-
During these years, the Justice
pels judges to apply pretrial detention
Initiative also worked in Ukraine to
purely on the basis of the crime with
help develop and disseminate judicial
which a defendant has been charged.
guidelines which specify the manner
Even charges of “non-grave” offens-
in which international standards,
es can result in pretrial detention if a
designed to limit the use of pretrial
conviction could result in a prison
detention, can best be deployed by
term. Even where pretrial release is
judges in the context of Ukrainian law
theoretically possible, the lack of alter-
and practice. In 2004, the Justice
natives to unconditional release dis-
Initiative began working in Mexico to courages many judges from authoriz-
reduce and rationalize the use of, and ing it. Mexico’s legal system also sets
promote alternatives to, pretrial deten- onerous financial hurdles for the
tion practices through research, public application of financial bail, making
awareness raising, training, policy pretrial release virtually impossible for
advocacy, and the development of a the indigent.
pilot pretrial evaluation and bail super-

Justice Initiative 153


Pretrial Detention

Figure 1: Pretrial Detainees per 100,000 of the General Population,


1994-2006
85
90
79 78
80 72 75
65 71
70 63
60 57
50 52 53
46
50
40
30
20
10
0
1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006

Unsurprisingly, given its rigid legal Mexico’s 100 million inhabitants took
framework, Mexico’s pretrial detention an important step towards democratic
data is predictably gloomy. In late governance.
2006, the country’s prisons housed Mexico’s new administration
214,500 inmates of which 92,600, or assumed power intending to signifi-
43 percent, were awaiting trial (up cantly reform the country’s archaic
from 71,500 in 2001). The number of and inefficient criminal justice sys-
detainees measured as a rate per tem.2 A significant part of this inten-
100,000 of the general population tion was rights related; officials were
almost doubled from 46 to 85 per quick to acknowledge abuses under
100,000 between 1994 and 2006 the old system. However, widespread
(Figure 1). Many Mexican prisons are concerns over public security quickly
overcrowded, with the national medi- made criminal justice reform one of
an occupancy rate hovering around the knottiest political challenges fac-
134 percent of capacity.1 They are also ing the new government. Reports of
dangerous centers of violence and dis- high-profile kidnappings in Mexico
ease, and have proven porous for vio- City and the unsolved murders of hun-
lent criminals who appear to escape dreds of women in Ciudad Juarez per-
with ease. vaded the national and international
A new era in Mexican politics was media. Suspects were frequently
ushered in with Vicente Fox’s victory coerced into making confessions, yet
at the polls in 2000. With this peace- only three percent of crimes commit-
ful transition from over seven decades ted resulted in a prosecution.3 In June
of authoritarian one-party rule, 2004, hundreds of thousands of

154 Open Society


Case Studies

Mexicans marched through a dozen g Undertaking a cost-benefit analysis


cities expressing their frustration at of Mexican pretrial detention prac-
the crime situation and demanding tices and alternative models to pre-
change. More accountable and sensi- trial detention. The results of such
tive to public opinion in Mexico’s new an analysis will raise awareness of
democratic dispensation, criminal the financial cost of the excessive
justice policymakers were confronted use of pretrial detention and provide
policy makers with valuable infor-
with a dilemma faced by most liberal
mation to craft more cost-effective
democracies at one time or another—
pretrial detention laws.
the challenge of balancing individual
rights to liberty with the societal inter- g Working with state-level policy mak-
est of public security. ers and criminal justice officials to
promote pretrial detention reform,
The Intervention
In mid-2004 the Justice Initiative
Suspects were frequently coerced
began to work on pretrial detention
reform in Mexico. Several factors into making confessions, yet only
motivated the decision to engage in three percent of crimes committed
this effort. Mexico is an important
regional power in Latin America, with resulted in a prosecution.
a population and economy second
only to that of Brazil. Should Mexico’s
criminal justice reforms fail, it would and presenting trainings on rights-
weaken the country’s democratization based pretrial detention practice in a
process. Moreover, the Fox administra- number of Mexican states.
tion’s patent—albeit diminishing— g Focusing attention on the social
enthusiasm for criminal justice costs of Mexico’s rigid pretrial
reform, the lack of a strong domestic detention policies by compiling and
lobby for pretrial detention reform, disseminating personal histories of
and the opportunity to strengthen individuals who have been detained
local civil society capacity to provide awaiting trial.
alternatives to pretrial detention, all The Justice Initiative’s long-term
made a case for Justice Initiative goal in Mexico is to foster and
engagement. entrench a fair, rational, and rights-
From the beginning of its work in based pretrial detention regime which
Mexico, the Justice Initiative partnered is respectful of international standards
with a local non-governmental organi- and norms. Initially, however, the
zation (NGO), Renace. The Justice objective was to reduce—and eventu-
Initiative–Renace project has sought ally eliminate—the catalogue of grave
to promote pretrial detention reform offenses, and thereby increase judicial
through a number of interrelated discretion, through legislative change.
activities, including:

Justice Initiative 155


Pretrial Detention

The project would accomplish this Mexico, prompted the Justice Initiative
goal by working at the federal and project to shift its focus from the
state level to promote criminal federal to the state level. After investi-
code reforms. gating a number of states in early
By 2005, it was clear that the 2006, the state of Chihuahua was
Fox administration would not be identified as being suitable for a proj-
able to deliver on its much touted ect-sponsored intervention to promote
criminal justice reform package. and entrench rights-based pretrial
President Fox lacked a majority in detention practices in compliance with
congress and proved unable to win international norms.
approval of any significant legislative In mid 2006, Chihuahua’s legisla-
reforms. Moreover, the details of the ture, with support from all three major
administration’s reform package were parties, passed an ambitious package
disappointing. While the reforms of legislative reforms which came into
sought to introduce adversarial and effect in the state capital, Chihuahua
oral proceedings and entrench the City at the beginning of 2007 (the
presumption of innocence in the reforms are being implemented in a
constitution it also—somewhat staggered manner). The reforms
paradoxically—did not advocate radically change the way in which
eliminating the “grave” crimes classifi- pretrial detention decisions are made
cation for which pretrial release is and administered. Crucially, the tradi-
prohibited. tional distinction between “grave” and
“non-grave” offenses was repealed. As
State-Level Opportunities a result, all defendants—including
As the federal reform reforms stalled, those charged with a serious offense—
a number of states became interested are eligible for pretrial release as
in implementing criminal justice they await the their trials. (However,
reforms of their own. Most reform shortly before publication the category
proposals focused on radically over- was reinstated for five offenses.)
hauling state-level criminal procedure Moreover, Chihuahua’s new criminal
codes to introduce oral, adversarial procedure code provides statutory
proceedings. An important compo- guidance to judicial officers to use
nent of a number of state-level pretrial detention as an exceptional
legislative reform packages is measure and only on grounds which
reducing the number of crimes mirror those found in international
classified as “grave” or eliminating standards (i.e. risk of flight, risk of
the distinction between “grave” and offending, and interference with the
“non-grave” offenses altogether. proper administration of justice).
This unexpected development, The reforms brought about three
whereby a number of states overtook specific challenges for Chihuahua’s
the federal government as the van- criminal justice officials dealing with
guard of criminal justice reform in pretrial detention issues, namely:

156 Open Society


Case Studies

g a significantly greater volume of In essence, the project offered to


cases requiring a pretrial release/ develop an institutional model to
detention decision by a judicial empower judicial officers and other
officer; criminal justice officials to make
informed and rational pretrial deci-
g a greater proportion of cases requir-
sions, and provide supervisory servic-
ing a pretrial release / detention
es for selected defendants, so that
decision which involve serious
the maximum number of pretrial
crimes; and
detainees can be released without
g an increase in the number of alter- undue risk to public safety.
natives to pretrial detention.
In late 2006, after the project
identified Chihuahua as a promising A bail evaluation and supervision
candidate for reform and began dis- center would provide criminal
cussions with the office of the state
attorney general, a consortium of state justice officials with trustworthy
entities (including the Secretariat for information on the potential risk
Public Security and the three major
political parties) asked the project to
a defendant may pose.
help the state manage the implications
of its new, more progressive, pretrial
detention law. In response the project
The project created a pretrial deten-
proposed to help develop and imple-
tion working group in Chihuahua,
ment a pilot bail evaluation and super- made up of senior members of the
vision center in Chihuahua City.4 Department for Public Security, the
The key objectives of such a center attorney general’s office, congress, and
are twofold. The first is to undertake the Supreme Court. The working
a risk assessment of individual group is responsible for maintaining
defendants by collecting information governmental support for the pilot bail
from a variety of sources about evaluation and supervision center and
detainees, and provide criminal justice ensuring effective collaboration and
officials with trustworthy information coordination between the key state
on the potential risk a defendant may agencies whose support is crucial to
pose reneging on his conditions of the center’s success. The working
release, and to assist judicial officers group, moreover, fosters local owner-
in coming to a fair and effective ship in the development of the pilot
release / detention decision based on center and can be used as a conduit
objective and reliable criteria. The sec- through which local in-kind and finan-
ond objective is to provide profession- cial support for the center can be
al supervisory services for high-risk obtained to ensure its long-term sus-
defendants who would otherwise not tainability. At the time of writing, key
be released awaiting trial. state officials (and a few business lead-

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Pretrial Detention

ers in Chihuahua) are trying to consol- administered. Policymakers have pro-


idate support for a pretrial services vided little time and limited resources
project. The impending application of for training the judges, prosecutors,
the new code to Ciudad Juarez, police officers, and defense lawyers
Chihuahua’s largets city, has raised the responsible for making the new sys-
political stakes greatly. tem work effectively. Should the
broader impetus for reform abate or
Future Challenges even stall, it is likely to negatively
As the project goes about promoting affect the reform of pretrial detention
political reforms it faces a number of practices.
challenges. At the operational level, Although the attorney general’s
the project continues to grapple with a office and the Secretariat of Public
recalcitrant judiciary which is uncom- Security have so far been ardent cham-
fortable with the added responsibility pions of the center’s proposed mis-
sion, it remains to be seen how the
system’s agents react in practice. As is
the case in most of Mexico,
Many judges fear criticism should they Chihuahua’s system of legal aid is
weak and poorly funded. The defense
release a defendant who subsequently
bar is largely inexperienced at mar-
commits a serious crime. shalling relevant information and
arguing forcefully for pretrial release.
A pretrial services center will have to
of issuing a pretrial ruling for all be nimble with outreach and training
detained defendants, irrespective of if its materials are to be put to use by
the seriousness of the charge levelled all litigants. Lastly, there is time pres-
against them. Understandably, many sure: the project must find ways to
judges fear media criticism and public ensure that system actors do not sim-
disquiet should they release an await- ply fall back on old habits and effec-
ing trial defendant who subsequently tively thwart the reform.
commits a serious crime or absconds. With a new president, Felipe
The mistaken release of a dangerous Calderon, in power, federal-level crim-
defendant could also discredit the inal justice reforms are still pending.
work of the pilot center in the context At the time of writing, significant
of a society plagued by violent crime. advances had been made that appear
Further risks are posed by the to favor the chance of a progressive
broader criminal justice reforms new federal pretrial detention policy
underway in Chihuahua. It remains to which follows Chihuahua’s lead. For
be seen whether the ambitious transi- example, recent drafts would signifi-
tion from an inquisitorial to an accu- cantly limit the use of the “grave”
satory, adversarial, and oral system can crime category.
be accomplished given the massive To succeed, the project must antici-
change this implies in how justice is pate and manage the challenges dis-

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cussed above. To date the project has defendant, a judge has to take into
trained prosecutors and judges in sev- account the gravity of the alleged
eral states on the use of bail evaluation offense, as well as the defendant’s age,
and supervision services. Provided health, family circumstances, financial
such trainings are repeated at regular situation, primary economic activity,
intervals and expanded to defense and place of residence.
lawyers and police officers, the anxiety The code further provides that a
criminal justice personnel may have defendant can be placed in pretrial
about the new pretrial detention sys- detention only if the offense with
tem and the pilot center can be mini- which he is charged is punishable,
mized. The project will also have to upon conviction, by more than three
work with the media and civil society years imprisonment. An exception to
groups to market the benefits of the this rule provides for pretrial deten-
new system and bail evaluation and tion, even for defendants charged with
supervision. minor offenses, in “exceptional cir-
Over the longer term the project cumstances” where, for example, a
hopes to establish an inter-state forum defendant has no fixed abode, has a
to allow state-level criminal justice pol- record of absconding, or the true iden-
icymakers and officials to exchange tity of the defendant cannot be ascer-
good practices regarding the imple- tained.
mentation of pretrial detention The law, therefore, neither requires
reform. Such a forum can serve as nor allows the imposition of pretrial
a platform for promoting pretrial detention based solely on the crime
detention reform throughout the with which a defendant is charged.
country, thereby dispersing the risk This was not always the case in
should the reforms fail in a particular Ukraine. Prior to major amendments
state. Moreover, such a forum can play to the CCP in 2001, pretrial detention
an important role in aligning federal could be applied on the basis of the
reform proposals with state-level gravity of the crime with which a
reforms. defendant was charged. The 2001
amendments also “judicialized” (i.e.
transferred from prosecutors to
Ukraine: Improving judges) all decision-making powers
Pretrial Detention Practice regarding restrictions on individual
through Judicial Training liberty, including decisions to impose
According to Ukraine’s Code of pretrial detention.6
Criminal Procedure (CCP), pretrial The 2001 amendments to the CCP
detention may only be imposed if rea- largely aligned Ukrainian pretrial
sonable grounds exist that a defendant detention law with the requirements
may attempt to abscond; obstruct the of the European Convention on
investigation; or pursue criminal activ- Human Rights.7 At the time of the
ities. To determine the type of restric- amendments, Ukraine had one of the
tion to place on an awaiting trial highest imprisonment and pretrial

Justice Initiative 159


Pretrial Detention

detention rates in Europe.8 Conditions city, Kharkiv. A representative sample


in Ukraine’s pretrial detention facili- of cases in which pretrial detention
ties were severely criticized by the was imposed during 2002 was ana-
European Committee for the lyzed. The survey focused on the deci-
Prevention of Torture.9 Moreover, sion-making process judges used to
many pretrial prisons in Ukraine were come to a pretrial release or detention
chronically overcrowded and were fer- decision.
tile breeding grounds for the trans- According to the survey results,
mission of communicable diseases. most judges applied pretrial detention
on the basis of a few variables, notably
the gravity of the offense with which a
The amended CCP presented an defendant is charged, a defendant’s
lack of a registered permanent resi-
opportunity to reform an ailing and dence (in large part a leftover from
inhumane pretrial detention system. Soviet times when every citizen had to
be formally registered at an address),
and a defendant’s prior criminal con-
The Intervention duct and employment status. Some
69 percent of cases surveyed revealed
The amended CCP presented an
that detention decisions were based on
opportunity to reform an ailing and
the gravity of the offense with which
inhumane pretrial detention system.
defendants were charged. Judges gen-
This legislative opening and Ukraine’s
strategic importance presented a erally did not take into account the full
compelling case for Justice Initiative array of factors mandated by the code
engagement.10 In early 2002, in when deciding which defendants to
cooperation with Ukraine’s Soros detain. Crucially, most judges failed to
foundation, the International properly evaluate the risk individual
Renaissance Foundation (IRF), the defendants posed of absconding,
Justice Initiative implemented a three- obstructing the criminal investigation,
year project aimed at maximizing or offending.
the revised code’s potential to limit the The survey results also provided
use of pretrial detention.11 The project some evidence that judges’ pretrial
sought to achieve this by enhancing detention rulings were discriminating
the quality of judicial decision-making against the poor. Over four-fifths (81
during the pretrial phase of criminal percent) of the cases surveyed involved
proceedings and thereby reduce the unemployed persons. This occurred
incidence of cases where pretrial even though the unemployed consti-
detention is used. tute “only” two-thirds of convicted
During the first phase of the proj- defendants. It was also found that a
ect, a survey of judicial practices in the mere 7 percent of defendants covered
application of pretrial detention was by the survey were represented by a
conducted in Ukraine’s second largest lawyer during their pretrial hearing.

160 Open Society


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Figure 2: Pretrial Detainees per 100,000 of the


General Population, 2001-05

111.3 111.2
120
97.8
100 86.1
Detainees per 100,000

77.8
80

60

40

20

0
2001 2002 2003 2004 2005

Source: Center for Judicial Studies; Supreme Court of Ukraine.

The survey consequently revealed Supreme Court as both a coauthor of


that many judges tended to ignore the guidelines and a trainer at project-
important aspects of the CCP when sponsored seminars, which signifi-
making a pretrial release or detention cantly enhanced the status and appeal
ruling. This finding led to the second of the project’s written materials and
stage of the project: namely, the pro- trainings.
duction of a series of publications, During 2004-05, a series of proj-
including a workbook for project- ect-sponsored judicial trainings were
sponsored trainings on pretrial deten- held in Kharkiv and Kyiv. The train-
tion, and guidelines for judges on the ings were conducted by the Center for
correct application of Ukraine’s pretri- Judicial Studies, an NGO with a good
al detention law. All materials provid- working relationship with the
ed examples of good and bad practices Ministry of Justice and the Supreme
in pretrial detention based on actual Court. The center also had several
cases found by the project’s years’ experience in organizing train-
researchers in the aforementioned ing seminars for Ukrainian judges on
survey. The materials also stressed aspects of the European Convention
European regional standards govern- on Human Rights.
ing the application of pretrial deten- The final phase of the project
tion, in particular the case law of the involved the development of pilot
European Court of Human Rights. legal aid schemes for arrested persons
The project enlisted a justice of the in Kyiv and another regional center,

Justice Initiative 161


Pretrial Detention

Chernihiv. Project-sponsored lawyers 2004 and 2005. This decline occurred


were placed on duty at police notwithstanding the fact that over the
stations to provide assistance to same period the level of recorded
arrestees who were at risk of being crime in Kyiv rose (contrary to the
placed in pretrial detention. national trend) by 14 percent and the
number of defendants by two percent.
Project Impact In Kharkiv (a site for the project-
During the years of the project’s oper- sponsored trainings) the number of
ation, the overall number of pretrial appeals against pretrial detention rul-
detainees in Ukraine declined, from ings of the lower courts declined by 12
111 per 100,000 of the general popula- percent in a five-month period after
tion in 2002 to just under 78 per the project trainings, compared to a
100,000 in 2005 (Figure 2). Over the similar five-month period prior to the
trainings. This decline in the number
of appeals is likely to be at least partly
the result of judges being more faith-
Lawyers were placed on duty at police
ful to the CCP as it applies to pretrial
stations to provide assistance to detention.
arrestees who were at risk of being There are also indications that the
project’s judicial skills-building activi-
placed in pretrial detention.
ties were effective in changing judicial
attitudes. In June 2005, the Center for
Judicial Studies surveyed judges of the
same period the number of pretrial Kyiv regional and local courts who had
detainees, calculated as a proportion of participated in the project-sponsored
the total prison population, declined trainings. The survey revealed that 89
from 23 percent to 18 percent.12 Much percent of the surveyed judges
of this decline cannot be attributed to believed the number of defendants
the project, as only a small proportion who are detained awaiting trial is
of the country’s judges had participat- excessively high. Moreover, almost
ed in the project sponsored trainings four-fifth of the respondents (78 per-
by the end of 2005. Moreover, record- cent) felt that efforts should be made
ed crime decreased over much of this to reduce the number of pretrial
period—a factor which may have con-
detainees in Ukraine.
tributed to a reduction in the applica-
tion of pretrial detention.13
Facilitators of Project Successes
It is interesting, however, that in
Kyiv, where a significant number of A repeat of the survey of judicial prac-
judges attended the project trainings tices in the application of pretrial
(which commenced in March 2005), detention, which the project under-
the number of pretrial detainees took in 2003, would be required to
declined by over four percent between accurately measure the project’s
impact on the quality of judicial

162 Open Society


Case Studies

decision-making during the pretrial turn, was a product of Ukraine’s


phase of criminal proceedings. But it obligations to the CoE.14 A CoE treaty
can be ascertained from the above, monitoring body, the European
albeit imperfect, data that the project Committee for the Prevention of
made a positive impact on judicial Torture and Inhuman or Degrading
attitudes and practices. Given that Treatment or Punishment (CPT), visit-
these successes were achieved in a ed Ukrainian pretrial detention facili-
country which until 2001 had one of ties in 1998, 1999, and 2000. The
Europe’s most draconian pretrial CPT made it known that the poor con-
detention regimes, what enabled the ditions under which pretrial detainees
project to achieve these accomplish- were incarcerated could realistically
ments over such a short period of be improved only if there was a
time? It is possible to identify at least decrease in the number of pretrial
two cogent explanations. detainees or a reduction in the average
First, the project was not promoted length in their detention.
purely as a pretrial detention reform
undertaking. Rather, it was presented Sustaining Project Impact
as a vital component in the govern-
As a consequence of the project’s activ-
ment’s effort to humanize criminal
ities and at the urging of the Justice
justice policy and practice in compli-
Initiative’s partner, the IRF, several
ance with European human rights
standards. In this respect the project international donor organizations
capitalized on a widely shared belief have started supporting pretrial deten-
among Ukraine’s criminal justice pol- tion-related projects in Ukraine.15 This
icy makers: namely, that it was neces- is an encouraging development as no
sary to move away from a repressive major donor was working in this field
Soviet-style system, and that this when the project began in late 2002.
was possible only by incorporating Moreover, the IRF itself has contin-
European standards into a more ued its engagement with pretrial
humane criminal justice system. detention issues in Ukraine. In 2006
Second, a key policy goal for the it provided a grant to the Center for
Ukraine government was to nurture Judicial Studies to train judges on
the country’s membership in the alternatives to pretrial detention. The
Council of Europe (CoE). Ukraine was center will also provide joint practical
permitted to join the CoE in 1995 on training sessions for judges, prosecu-
the condition that, among other tors and lawyers on the application
changes, it reformed its criminal of alternatives to detention and to
justice system in accordance with improve their skills regarding good
European norms. The amendments pretrial detention practice. A different
to the CCP in 2001 were motivated IRF grant permits the continued pro-
by a need to bring the country’s crimi- vision of free legal aid to arrestees at
nal procedure in line with Ukraine’s risk of being placed in pretrial deten-
Constitution. The constitution, in tion at two Kyiv police districts.

Justice Initiative 163


Pretrial Detention

Figure 3: Pretrial Detainees per 100,000 of the


General Population, 1999-2006

180
162 155 158
147 151
160 142
140
120
96
100
77
80
60
40
20
0
1999 2000 2001 2002 2003 2004 2005 2006

Source: Latvian Prison Administration

Latvia: Reducing Pretrial Detention The Latvian Criminal Procedure


through Bail Supervision Code provides for eight different secu-
With the collapse of the Soviet Union, rity measures in respect of persons
Latvia regained its independence in awaiting trial. Only judges have the
1991. Almost immediately, the small authority to impose the two most
Baltic state of 2.3 million people began restrictive security measures—pretrial
reforming its criminal justice system. detention and house arrest. The onus
By the turn of the century, Latvian law is on the police and prosecution to
permitted the imposition of pretrial apply—formally, and in writing—to a
security measures only if there were judge for the detention of a suspect.
sufficient grounds to believe that the While detention may be used as a
persons concerned will abscond, inter- security measure only where the
fere with the criminal investigation, alleged offense may, upon conviction
commit new crimes, or to ensure the of the perpetrator, result in a custodial
enforceability of a court’s judgement. sentence, there are very few offenses
Judicial officers have to consider vari- where imprisonment is not a potential
ous, statutorily enumerated, criteria in sentence.
deciding whether to impose a security
measure. These include the serious- Reformist Pressure
ness of the offense and the character Between 1991 and 2002, the number
of the accused, including his familial of sentenced prisoners in Latvia
and personal circumstances. decreased by 21 percent, while the

164 Open Society


Case Studies

number of pretrial detainees increased pretrial detention establishments.20


by 53 percent. The number of pretrial The CPT recommended that Latvia’s
detainees as a proportion of all prison- pretrial detention law and practice be
ers increased from 28 percent in reconsidered. Among the internation-
1991 to 43 percent in 2002. al standards designed to limit the use
Disconcertingly, in 2002 almost two- of pretrial detention, the CPT specifi-
thirds (63 percent) of incarcerated cally suggested implementation of a
juveniles were pretrial detainees. recommendation of the Committee
Accused juveniles faced a significantly of Ministers of the Council of Europe
greater risk of being detained awaiting which provides that: “When examin-
trial than their adult counterparts. ing whether custody pending trial
In 2003, Latvia had the highest rate can be avoided, the judicial authority
of pretrial detainees of European shall consider all available alternative
prison systems for which figures were measures.”21
available, incarcerating 158 detainees
per 100,000 of the general population
compared to a European mean of 66
Juveniles were more likely to be detained
(Figure 3).16 awaiting trial than their adult counterparts.
A 2000 United Nations country
assessment of Latvia estimated that
“only half of the population behind In mid 2002, the Latvian parlia-
bars is incarcerated under humane ment amended the Criminal
and secure living conditions.”17 Under Procedure Code to expedite trials and
such conditions “pursuit of their own thereby reduce the average length of
human development for many or most time persons are detained awaiting
individuals is impossible while in trial. Parliament also established a
detention, which bears a negative working group to draft a new law on
influence on rehabilitation, and on criminal procedure for the country.
the rest of an individual’s life.”18 These legislative developments,
A report released in early 2002 by Latvia’s high rate of pretrial detention,
the Latvian Center for Human Rights the above-mentioned CPT report, and
and Ethnic Studies, an NGO, stated: the reformist pressures placed on
“In 2001 the primary human rights Latvian policy makers by their coun-
problem in Latvia remained the same try’s eagerness to join the European
as in previous years: a huge backlog in Union (EU), provided an opening to
the courts resulting in long pre-trial promote pretrial detention reform.
detention periods.”19
In a 2001 report on Latvia, the The Intervention
European Committee for the In September 2002, the Justice
Prevention of Torture (CPT) com- Initiative and the Center for Public
mented on the “intolerable” condi- Policy-Providus, a Riga-based NGO,
tions which it found in the country’s initiated a three-year project with the

Justice Initiative 165


Pretrial Detention

goal of reducing the number of juve- The project also sought to respond
niles and young adults held in pretrial to the supply side of the excessive use
detention. of pretrial detention—that is, the
In order to make sense of the high process through which persons were
pretrial detention rate, and to recom- placed in detention and remained
mend ways of reducing the number there. The project established two pilot
of detainees, the project undertook bail supervision centers to demon-
a study to evaluate Latvian pretrial strate how a system of bail supervision
detention practices. During 2002-03, can function in Latvia. In December
the project analyzed almost 300 ran- 2003, the project set up the first such
domly selected criminal case files center in the coastal city of Liepaja.
involving accused persons assigned From the outset, the project’s abili-
pretrial detention. A second survey, ty to develop an effective alternative
to pretrial detention was impeded
by legislation which did not allow bail
The project established two pilot supervision as a security measure for
bail supervision centers to demonstrate persons awaiting trial. So in lieu of
how a system of bail supervision bail supervision, the project decided to
operate through a pretrial security
can function in Latvia. measure that was allowed under the
law: police supervision. Police supervi-
sion is a measure designed to restrict
an accused person’s freedom of move-
to elicit the views judges, prosecutors
and police officers had on pretrial ment. Specifically, it means that the
detention issues was carried out person is not allowed to leave their
in 2003. region of permanent or temporary res-
idence, or to frequent specified places
The case study and survey results
or establishments, and the accused
provided an empirical basis for identi-
must report to the police at regular
fying problems in Latvia’s pretrial
detention regime. It was found that intervals. Conditions of police supervi-
Latvia’s pretrial detention legislation sion are limited by law and it is impos-
was often incorrectly interpreted and sible for the courts to add bail supervi-
applied, and that aspects of the legisla- sion as a condition under the rubric of
tion were vague and did not always police supervision.22 The project
comply with international standards. responded to this legislative lacuna by
In response, the project commis- entering into a series of cooperation
sioned a renowned expert to advise agreements with the police, prosecu-
Latvian policymakers on amending tion, and courts in Liepaja to establish
the Criminal Procedure Code to bring their formal support for the Liepaja
the country’s legislation, as it applies center and its activities.
to pretrial detention, in line with Accused persons released on police
European standards. supervision have to comply with cer-

166 Open Society


Case Studies

tain rules to remain at liberty as they Service office in Liepaja in late 2005
await trial. Informally, the Liepaja cen- that the center could focus exclusively
ter developed its own rules for its on bail supervision activities.
clients. For example, anyone under A second pilot center was opened
supervision had to commit to partici- in the city of Rezekne in May 2005. At
pate in regular center activities and the time of the opening, Rezekne had
not be intoxicated while at the center. the highest crime rate in the country,
The weakness of this informal and 54 percent of arrested juveniles
approach is that the police and the were kept in detention awaiting trial.
courts are powerless to penalize
accused persons who do not comply Lack of Sustainability
with the center’s rules. The police can At the end of 2006 the Liepaja center
only react in cases where an accused closed its doors, and the Rezekne cen-
breaks a court-imposed condition of ter did so in late 2007. The inability of
release on police supervision. In prac- the project to ensure their long-term
tical terms, center staff could exert financial sustainability is the main
some influence to get accused persons reason for discontinuing the work of
to comply with their rules, however. the two pilot centers. From its incep-
Judges would frequently ask the center tion, the Liepaja center was funded
to submit pre-sentence reports on exclusively by the project, while the
behalf its clients who were convicted Rezekne center received some modest
by the courts. As positive reports could support from the Rezekne municipali-
influence the courts to impose more ty. There are a number of reasons
lenient sentences, the center’s clients why the pilot centers were neither
had an incentive to cooperate with sustained nor led to the development
staff. of additional bail supervision centers
During the first year of its opera- in other parts of Latvia.
tion the Liepaja center had difficulties At its inception, the project benefit-
establishing itself as a supervision ed from the high-level contacts that
service. Initially the center’s staff com- Providus had cultivated in the Latvian
pleted numerous pre-sentence reports criminal justice system. Providus
and supervised convicted offenders enjoyed considerable credibility within
post-trial, in effect operating as a pro- government institutions and had been
bation service. For strategic reasons it invited to participate in governmental
was decided by the project that the working groups, including a working
center would perform such tasks at the group to establish a national probation
request of the police, prosecution, and service. When the Liepaja center was
courts to establish a good relationship created, the project gambled on the
with local criminal justice actors and support of the Ministry of Justice—
promote a professional and trustwor- especially that of the minister of jus-
thy image for the center. It was only tice—to amend the Criminal
with the opening of a State Probation Procedure Code and formally add bail

Justice Initiative 167


Pretrial Detention

supervision as an alternative to pretri- court facilities and an increase in the


al detention. This, in turn, would have number of judges in Latvia’s capital
made the country’s new Probation city, Riga (where a third of all Latvians
Service responsible for the provision live) in 2003. At around the same time
of bail supervision services. At the amendments to the Criminal
time, the Probation Service expressed Procedure Code shortened the pretrial
interest in providing such services investigation phase of the criminal
through its own staff and offices in process under certain circumstances,
some locations, while funding and and imposed statutory time limits for
contracting civil society organizations the maximum duration of detention.
to provide bail supervision in others Moreover, an increased focus on judi-
locales. In early 2004, the country’s cial training in the years immediately
prior to Latvia’s accession to the EU
increased judges’ awareness of
European pretrial detention standards.
The project succeeded in placing
the concept of bail supervision on Future Opportunities
the agenda of Latvia’s policy makers. It is sobering to conclude that the pro-
ject’s first pilot bail supervision center
in Liepaja closed its doors after three
years, and that the pilot center in
governing coalition collapsed and the
Rezekne did so after just over two
project was unable to establish as good
years of operations. Notwithstanding
a relationship with the new minister
this setback, the project succeeded
of justice. It was consequently a set-
remarkably well in placing the concept
back to the project when Latvia’s new
of bail supervision on the agenda of
Criminal Procedure Code, which
came into force in October 2005, did Latvia’s policy makers—although too
not make provision for bail supervi- late to sustain the operations of the
sion as an alternative to pretrial deten- two pilot centers.
tion due to a lack of support from the In late 2006, the State Probation
Ministry of Justice. Service, in a report to the Ministry of
After Latvia joined the European Justice, commented positively about
Union in May 2004, the threat that a the impact of the project’s pilot cen-
lack of progress in reforming its pre- ters. The probation service noted that
trial detention regime could delay its bail supervision services provide effec-
accession to the EU was no longer tive and individualized attention to
credible. Moreover, the number of pre- persons in conflict with the law, there-
trial detainees declined dramatically by changing the behavior of juvenile
between 2003 and 2006, from 158 to accused and encouraging them to lead
77 per 100,000 of the general popula- a law-abiding life.23
tion (see Figure 3). This decline is In a Ministry of Justice strategy
attributable to the opening of new document for the years 2007-2009,

168 Open Society


Case Studies

the ministry committed to drafting an uniformity embedded in processes of


implementation plan for a national globalization, and the information
bail supervision service by 2009. necessary to comprehend local prob-
Providus, the Ministry of Justice, and lems from a distance is not readily
the State Probation Service are collab- available. In addition, the inventory of
orating on developing a project pro- ready solutions to many of the prob-
posal to solicit foreign financial assis- lems in pretrial detention is small,
tance to support the implementation often highly specific, and usually
of bail supervision throughout expensive. The history of specific legal
Latvia.24 transplants, too, whether in the form
Providus also serves on a Ministry of statutory borrowing or the adoption
of Justice working group tasked with of international legal covenants, is full
considering proposed amendments to of instances of poor portability. It is
the Criminal Procedure Code. It is not clear that remedies devised for
likely that Providus’s proposal—that problems in one country are easily
bail supervision as an alternative to transferable to others.
pretrial detention be included in a To mitigate these challenges the
future amendment to the code—will Justice Initiative has adopted the prin-
be supported by both the Ministry of ciples of diversity, collaboration, and
Justice and the State Probation replicability in its programming.
Service. It is unclear, however, when Promoting better decisions about
such an amendment would come into detention across the globe requires an
force. Providing bail supervision eclectic approach, with agile responses
nationally will require considerable to different environments and chang-
financial resources and the expansion ing expectations. Creating the environ-
of the probation service as the likely ment to bring about lasting change in
agency responsible for the effective the field of pretrial detention requires
implementation of bail supervision new kinds of collaboration between
services. At the time of writing it governments and NGOs, and a com-
appears unlikely that bail supervision mitment to learning by all parties.
services will be introduced in Latvia Cooperation with donors makes it pos-
before 2009 or 2010.25 sible to build upon current efforts to
improve justice, and benefit from their
Conclusion local knowledge and experience. The
The Justice Initiative faces several Justice Initiative strives to generate
important challenges when working learning which will be applied by oth-
on rights-based pretrial detention ers in analogous situations and there-
reform on a global scale. First, crimi- by serve as a catalyst for a process of
nal justice remains a local and varied change in the arena of rights-based
phenomenon, despite the pressure of pretrial detention reform.

Justice Initiative 169


Pretrial Detention

Notes

The authors are current and former personnel of the Open Society Justice Initiative’s National
Criminal Justice Reform program.
1. World Prison Brief Online, (London: International Centre for Prison Studies, 2007).
2 .The Fox administration’s proposed reform of the public security and criminal justice system
was ambitious. It involved revising several constitutional provisions, promulgating six new laws
and amending a further eight.
3. Guillermo Zepeda Lecuona, Crimen sin castigo: Procuracion de Justicia Penal y ministerial publico
en Mexico, (Mexico City, Fondo de Cultura Económica y Centro de Investigación para el
Desarrollo, 2004), 220.
4. Bail evaluation and supervision is more commonly known as “pre-trial services” (PTS),
especially in the United States where PTS have been in existence the longest. In the United
States, PTS generally provide two major functions: evaluation and supervision. At the evaluation
stage, background information on a defendant, including criminal record information, is obtained
and verified by an impartial party. The risks of the defendant absconding, interfering with the
administration of justice, or committing a serious crime while awaiting trial are evaluated. Based
upon the evaluation, a recommendation is made to the presiding judge as to whether the
defendant should be released pretrial and, if so, under what conditions. This mechanism provides
judges with the necessary information to make informed release decisions. The supervision
function provides a number of oversight options for defendants whom a judge would otherwise
not release pretrial. For example, PTS may provide drug testing to defendants whom the judge
has ordered into drug treatment, and visits or telephone calls for defendants under house arrest.
5. The proposal for federal-level reform was submitted to congress in late 2006 by a network
called Red Nacional a Favor de Juicios Orales y Debido Proceso Legal (“National Network for Oral
Trials and Due Process of Law”).
6. Under the old pre-2001 system, a procurator made the decision to detain someone without
contemporaneous judicial or other independent scrutiny.
7. The Council of Europe (of which Ukraine became a member in 1995), recommends that in
deciding whether or not to detain, a court should consider: (i) the seriousness of the alleged
offense, (ii) the strength of the evidence that the accused committed the offense, (iii) the penalty
to be incurred upon conviction, (iv) the character, and personal and community ties of the
accused, and (v) the conduct of the accused. See: Council of Europe Recommendation No. R (80)
11 of the Committee of Ministers to Member States Concerning Custody Pending Trial (27 June
1980), https://wcm.coe.int/ViewDoc.jsp?id=679045&Lang=en>.
8. Marcelo F. Aebi, Council of Europe Annual Penal Statistics: Survey 2002, (Strasbourg: Council of
Europe, 2003).
9. Report to the Ukrainian Government on the Visit to Ukraine Carried out by the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 24
November to 6 December 2002, CPT/Inf (2004), (Strasburg: Council of Europe, 2004) 35.
10. Ukraine, which gained its political independence from Russia in 1991, is the second largest
and sixth most populous (population 46.7 million in 2006) country in Europe.
11. The IRF, a member of the Soros Foundations network, is an independent, charitable
organization and one of the largest private charities in Ukraine. Since 1990, the IRF has both
funded and helped implement numerous law reform and rule of law projects in Ukraine.
12. Tsentr Suddivskikh Studiy, Otsinka Efektyvnosti Vykonannia Proektu “Znyzhennia Kilkosti
Dosudovykh Zatryman V Ukraiini: Monitoryng Ta Udoskonalennia Suddivskykh Navychok”.
[Center for Judicial Studies, Evaluation of Effectiveness of the Implementation of the Project
“Reducing Pre-Trial Detention in Ukraine: Monitoring and Judicial Skills-Building”] (2006).

170 Open Society


Case Studies

13. Between 2002 and 2003, the rate of recorded crime increased from 939 to 1,168 cases per
100,000 of the population, and thereafter declined to 1,100 (2004) and 1,035 (2005) recorded
cases per 100,000 of the population.
14. A draft of the Ukraine Constitution was vetted by a body affiliated with the Council of Europe,
the Venice Commission for Democracy through Law. See Opinion on the Draft Constitution of
Ukraine (Text approved by the Constitutional Commission on 11 March 1996 (CDL (96) 15),
available at, <http://www.venice.coe.int/docs/1996/CDL(1996)020-e.asp>).
15. These donor organizations include the Swiss Agency for Development and Cooperation, and
the American Bar Association’s Central and Eastern European Law Initiative (ABA-CEELI).
16. Figures for the Russian Federation were not available. See, Marcelo F. Aebi, Council of Europe
Annual Penal Statistics, Survey 2003, SPACE I, (Strasbourg: Council of Europe, 2004), 23.
17. Putting People First. Challenges and Opportunities for Cooperation between Latvia and the United
Nations, A United Nations Common Country Assessment, (New York: 2000), 24.
18. Ibid., 26.
19. Human Rights in Latvia in 2001, (Riga: Latvian Center for Human Rights and Ethnic Studies,
2002), 7.
20. Report to the Latvian Government on the visit to Latvia carried out by the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 24 January
to 3 February 1999, CPT/Inf (2001) 27, (Strasbourg: Council of Europe, 2001), 36 and 46.
21. Recommendation No. R (80) 11 of the Committee of Ministers of the Council of Europe. See,
Report to the Latvian Government on the visit to Latvia carried out by the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 24 January to 3
February 1999, CPT/Inf (2001) 27, (Strasbourg: Council of Europe, 2001), 42.
22. Under the rubric of police supervision, the law permits the imposition of four conditions only:
compulsory school attendance, house arrest, prohibition to go to certain places, and regular
reporting at a police station. See Article 75, Latvian Criminal Procedure Code of 1961, as amended.
23. Personal communication, Inese Avota, Project coordinator: Bail supervision and alternatives to
custody, Center for Public Policy-Providus, January 27, 2007.
24. Funding is being sought through the Norwegian Financial Mechanism which is making 1.17
billion euros available to ten new European Economic Area (EEA) states—including Latvia—in a
wide range of priority sectors.
25. Personal communication, Inese Avota, Project coordinator: Bail supervision and alternatives to
custody, Center for Public Policy-Providus, January 27, 2007.

Justice Initiative 171


Pretrial Detention

Mixing Politics, Data, and


Detention: Reflections
on Reform Efforts
Robert O. Varenik reviews common of attempts to address pretrial deten-
themes among pretrial detention tion policies. The reforms described in
reform efforts and the lessons that can this volume include two significant
be extracted from them. legislative efforts (Chile and Russia);
creation of a new administrative entity
Within the already fraught territory of
(South Africa); an administrative
criminal justice policy, issues of deten-
interagency reengineering (United
tion and punishment are particularly
States); and third-party efforts at
charged. The case of pretrial detention
inspection of or legal representation in
is further complicated because the
detention venues (India and Malawi,
affected population1 is not only often
and Nigeria, respectively). Have these
initiatives mastered the difficult
It is hard even to gauge the politics and the elusive metrics of this
field? Do they signal any trustworthy
impact of any reform effort or the directions for ensuring that the
cause of a particular outcome. problems (and solutions) are properly
appraised and appreciated? With these
initiatives as a backdrop, this article
poor but transient, complex, and hard suggests that reformers should focus
to document, or even describe. With on achieving clarity about the
consequently few advocates, their challenges they are tackling and the
numbers are almost never measured results they obtain, and on fashioning
precisely, although in many countries empirical arguments that appeal to a
the pretrial population is significantly wider range of political values. The
higher than the prison population. It successes and setbacks found in these
is hard even to gauge the impact of seven initiatives, diverse in contexts
any reform effort or the cause of a and content, point to this conclusion.
particular outcome. It comes as no The accounts can be regrouped
surprise, then, that many societies according to a few principal narratives
have failed to take to heart the that highlight the difficulties in
requirement of international law that managing both the politics and the
detention of (presumptively innocent) metrics of pretrial detention reform.
accused persons should be the In a first group, including Chile,
exception rather than the rule. Russia, and South Africa, reform
Despite the difficulties of the politics faltered, leading to a counter-
endeavor, there is a growing number reform that rolled back the laws, or in

172 Open Society


Reflection

the case of South Africa, meant a reforms, although for different rea-
gradual administrative abandonment sons, including a desire at the time for
of the pilot project and the practices greater proximity to the West and a
inculcated by the project. In India and way to address pressure from the
Malawi, political support for two Council of Europe and human rights
inspired initiatives appears to be sig- activists regarding Russia’s record in
nificant and sustained, but reformers this area. Law enforcement officials,
themselves express questions about especially prosecutors, were largely
how to interpret the results and their opposed to the reforms for institution-
relation to the intervention. In two al as well as ideological reasons.
cases (Nigeria and the United States), Keenly aware that the opportunities
reformers were able to generate value created by their unlikely coalition were
for official stakeholders. Believing that highly evanescent, a small group of
they had isolated the problem and well-placed reform leaders adopted a
could demonstrate the appropriate- very opportunistic approach, remov-
ness of the approach and the desired ing prosecutors and other opponents
impact, they were able to secure some of the reform from the legislative
institutional changes that seem likely working group in order to ensure
to persist. rapid passage of a revised code.
The political and technical under- Yet the experiences of Russia and
pinnings of success are often pro- also Chile suggest that identifying and
foundly intertwined. One succinct even temporarily neutralizing oppo-
recipe for successful reform calls for nents of reform may not be enough.
providing doers and decision makers Adversaries resurfaced, reinforced, in
with “information, options, and incen- short order. In Russia, subsequent
tives.”2 That is, public officials need elections thinned the ranks of
new knowledge that helps them make legislative reformers, while a suddenly
good choices and a set of political rea- indifferent presidency presided over
sons to take action. Common experi- a reconstituted working group that
ence in the field seems to suggest that undermined some important ele-
the politics of reform—the key incen- ments of reform barely a year after
tives—are paramount, making it a their passage. Key reformers had been
good place to start. intent on a victory while there was a
As Olga Schwartz relates, a liberal- window of opportunity and opted to
ized criminal procedure code had long exclude opponents and shorten the
been stalled in the Russian Duma time for debate rather than win them
until an unlikely source, incoming over or seek a lasting compromise.
President Vladimir Putin, pushed it Because the other side hadn’t been
through as an early salvo in (as hind- converted to the cause or presented
sight now suggests) a long campaign with a reason to forgo opposition, it
to limit the influence of the judiciary did not; biding their time, opponents
and the legal establishment. Other had the next, if not the last, word on
political elites also supported these reform.3 Ironically, it appears that the

Justice Initiative 173


Pretrial Detention

counterreformers were aided by some needed to avoid wholesale dismantling


of the “beneficiaries” of the new of the original project. As Verónica
legislation. Judges were never really Venegas and Luis Vial point out, the
prepared for the new authority granted use of consensus as a political modali-
to them or the new standards for ty for decision making may have
applying it, and after a brief honey- masked simmering differences and
moon they reverted to form, their lulled some players off their guard
decisions mimicking those of the even in Chile, where deep schisms
prosecution service which had previ- had historically divided the political
ously determined pretrial detention camps. The ideological right remained
or release. ready to pounce on an opportunity,
and did. Veterans of the Russian and
Chilean campaigns might well advise
The acid test of reform should not that, as with electoral politics, the time
be what can be attained, but to begin planning for the next skir-
mish is right after the initial victory.
what can be sustained.
Beyond the legislative level, the del-
icate courtship of parties in the reform
process is equally critical. Working
Given the inevitability of political closely with several juvenile justice
shifts, the acid test of reform should agencies, the Juvenile Detention
not be what can be attained, but what Alternatives Initiative (JDAI) identi-
can be sustained. Adversity, whether fied numerous sources of delay and
in the form of a public relations disas- inefficiency that contributed to an
ter stemming from a case gone bad or acknowledged growing problem of
sharp tilts in the political balance, juvenile facility overcrowding in the
needs to be anticipated. When oppo- United States. Lessons from past
nents of reform gained increased practice—for instance, never assume
influence over the legislative process that related agencies know what the
in Chile, supporters were caught others are doing—prompted them to
unprepared to respond to what broker information in a way that
they viewed as demagoguery about made them, and the reform process,
increased impunity for criminals. valuable to officials, who then benefit-
Although fierce in their opposition to ed from a host of low-cost solutions
rollbacks, even the most ardent that relied on minor administrative
reformers lacked data to refute the changes rather than legislation.
charges because none of the system The Commonwealth Human Rights
entities measured the impact of the Initiative (CHRI) in India found
reforms on detention, absconding, or that agency representatives who had
recidivism. Some of the academics traditionally been dismissive of input
who had championed the initial from NGOs reacted positively to
reforms became a somewhat surpris- CHRI’s often critical findings from its
ing constituency for counter-reform, lay visits to detention sites. Dialogue,
arguing that concessions would be leavened by new information, can be

174 Open Society


Reflection

surprisingly fruitful. ing and sustaining political inroads.


In Malawi, filling the needs of the The implementation of pretrial release
police force created an unlikely and detention policies is a high-vol-
alliance and defused a potentially ume undertaking well suited to data
adversarial relationship. Reformers capture and analysis and offers oppor-
had been unable to win police cooper- tunities to provide many system actors
ation until their nongovernmental and policymakers with results that
Paralegal Advisory Service (PAS) proj- will make reform a better political deal
ect expanded to address juvenile for them. As D. Alan Henry puts it,
detention, which the police had once “armed with information” his
acknowledged as a problem area. U.S. JDAI team was ready to begin
Offering to assist the police and politicking for change. The Justice
parents of juvenile arrestees, the PAS
then helped develop a screening
mechanism for diverting young Isolate and observe different
offenders, where appropriate, out of
the criminal justice process. In components in order to pinpoint
exchange, paralegals gained access to the problem area(s) among many
monitor police– detainee interviews.
The PAS then went one better, recruit-
moving and interconnected parts.
ing officers to train paralegals in inves-
tigative interviewing techniques and Initiative’s chief ally in an effort to
custody procedures, which enhanced implement liberalized pretrial release
the paralegals’ monitoring skills while rules in Chihuahua, Mexico, turned
reinforcing the standards among out to be the state attorney general,
police. The police also helped design who was explicit that pretrial release
the paralegals’ code of conduct for was not her office’s natural calling but
police station monitoring. who recognized that project-generated
The PAS was forced into some dif- data provided strong arguments in
ficult choices to forestall another polit- favor of related reforms that law
ical obstacle. Rather than risk further enforcement should support.
alienating the Malawi Law Society, The subtle complexities of criminal
which it correctly perceived as resent- justice systems require that reform
ful of incursions into the Society’s tra- should flow from careful diagnosis.
ditional territory, the PAS demurred The hunt for the source of the prob-
on several requests from the judiciary lem should approximate a mechanic’s
to send paralegals into the lower approach under the hood of a car:
courts, championing the position try to isolate and observe different
that representation before a judge is components in order to pinpoint the
strictly the Bar’s province. problem area(s) among many moving
Although political imperatives can and interconnected parts. Reforms
frustrate the pursuit of evidence-based that spring fully formed, like Minerva
policy, empiricism has a role in mak- from Jupiter’s brain, without gestation

Justice Initiative 175


Pretrial Detention

or significant research, may be both remanded prisoners dropped an addi-


relevant and useful, but when the tional 18 percent. Going forward,
rationale for choosing a specific inter- reformers will have to address those
vention is slender, the results may be problematic detentions stemming
correspondingly modest, and the from decisions made earlier in the
mechanism of impact hard to divine. process.
Even due diligence does not inocu- CHRI’s program of lay visits to
late against surprises. The PAS’s pre- prisons in several Indian states clearly
project research in prisons revealed constitutes a useful intervention on
widespread, lengthy, and unlawful several grounds: it mobilizes civil soci-
detention of inmates who lacked the ety, creates a crucial precedent for
legal knowledge and/or representation external oversight, and undoubtedly
helps individuals who otherwise lack
anyone to champion their rights. Yet
Drawing up a plan without a clear sense for subsequent reformers trying to
tackle pretrial detention across India,
of the desired outcomes is an admission
the true measure of its value may not
that we don't know exactly where to aim. be the four-year reduction in the num-
ber of pretrial detainees (although this
appears to be significant) but rather
to challenge their status. However, the degree to which it enabled CHRI
a lack of reliable data made it hard to prompt diverse stakeholders to
to pinpoint where in the criminal probe a procedural and institutional
process these phenomena had their thicket. Indeed, the project out-
roots. At its inception in 2000, the stripped its aim of “opening up the
project targeted prison sites. Only obscure character of prison manage-
after the project had been operating ment through permitted community
for two years was it discovered that the interventions” by discovering, as did
reform was aimed too far down- its Malawian counterpart, the inter-
stream: much of the pretrial detention connected and mutually determined
problem stemmed from decisions nature of the criminal justice system.
made earlier in the prisoner intake R.K. Saxena is skeptical of one-dimen-
process. By 2005 reformers were faced sional measures, aware that the “price
with results both mixed and hard to of a reduction” in the pretrial popula-
interpret: a small reduction (just tion may be an increase in the number
under four percent) in the pretrial of convicts and the speed with which
detainee population over six years, and they are condemned. Looking back on
a contemporaneous, massive 74 per- this complexity, Saxena poses an
cent increase in the overall prison pop- invaluable question when he asks,
ulation.4 Happily, however, with an “[what] would be a dependable indica-
expanded cadre of paralegals focusing tor of reform in the situation of pretri-
on gaining release of prisoners who al detention?”
had “overstayed” their remand period, By way of response, we might look
scarcely 15 months later the number of to Malcolm Sparrow, a widely respect-

176 Open Society


Reflection

ed government innovations expert percent. This reduction took place


(and a former detective chief inspector despite a 75 percent increase, cited
in Britain) for a seemingly obvious but by Benjamin Naimark-Rowse and col-
essential reminder: define your indica- leagues7, in the number of people
tors before deciding on your interven- detained awaiting trial, because the
tion.5 Drawing up a plan of attack overall size of the prison population
without a clear sense of the desired more than doubled in the same peri-
outcomes is an admission that we od.8 Without contextualizing informa-
don't know enough about the target to tion, this indicator helps obscure the
know exactly where to aim. fact that Mexico has relied for decades
The uncertainty of our authors is on an inflexible legislative scheme,
not theirs alone, and their skepticism repeatedly toughened in the face of
about the results is healthy for the security fears, that renders perhaps
field. Unfortunately, the world of pre- two-thirds of all charged offenders
trial detention is still cast in some ineligible for pretrial release.
darkness regarding the nature of suc- So what might a measure of suc-
cess and how to measure it. The prob- cess in pretrial detention reform (or
lem has diverse manifestations: exces- for that matter, a model of the prob-
sive (too frequent and/or too lengthy) lem) look like? What indicators would
pretrial problems, discriminatory we look to, and which way would they
application, flaws in the process used be pointing (assuming that we are not
for detention and release decisions, limited to data that is typically record-
and inadequate physical conditions ed by governments and thus readily
are the most common. But how do we available)? To begin with, the numbers
define these problems quantitatively? of people in detention (both before
How much is too much of a lawful, if and after conviction) might each be
ostensibly rare, measure? What do you compared to population size (and
compare it to? Although some policy expressed in per capita terms) rather
experts have begun to articulate better than comparing the two detainee
standards of measurement, for most groups to one another. In order to
human rights groups, researchers detect the possible effect of law
and lawmakers, there is little choice enforcement activity, which might
but to utilize a core indicator—the swing detainee populations up or
percentage of the overall “in custody” down independently of how release or
population awaiting trial6—that can detention decisions are then made,
be profoundly misleading for precisely those numbers might be also be com-
the reasons our reformers suspected: pared to the number of arrests. Thus
it provides only a partial glimpse of a the rate at which suspects are held in
multifaceted picture. detention might be expressed, for
In Mexico, to cite but one example, example, as two pretrial detainees per
in the decade since 1995 the percent- five arrests. (Care should be taken to
age of pretrial detainees among all control for other factors, such as high
inmates fell from 50 percent to 42 rates of juvenile or gang crimes, which,

Justice Initiative 177


Pretrial Detention

as with “organized” crime generally, Of course, this might lead reform-


tend to receive higher rates of pretrial ers to unsettling conclusions: that the
detention.) The median length of time most helpful and feasible approach is
someone spends in pretrial detention something unanticipated, or (worse)
would also be a useful indicator. not part of their repertory—or even
Tracking median times to disposition (a that there are many more critical
measure of the time it takes to resolve fronts to this campaign than they had
the case at the first instance level) previously considered. Confronting
would tell us if a significant speeding this may pose a profound challenge on
up of the judicial process was also at several levels to some actors. Like the
play and possibly a cause of a dimin- proverbial man with just a hammer,
ished pretrial detainee population. organizations tend to see most prob-
Conviction rates, and a qualitative lems as nails—apparently tailor-made
assessment of the process, from arrest for just the tools they have at hand.
through charging and arraignment (or Admit that the problem derives from
its equivalents) and on to verdict, also unexpected and/or diverse sources
could shed helpful light on the ques- and you are obligated to consider that
tion of whether other changes in the multiple approaches may be in order.
way judges are handling cases might If resources are limited, and the
explain why the pretrial population reform agenda not politically popular
may have appeared to shrink in com- within the mainstream, individual
parison to the postjudgment pool. Of reform groups may be hard-pressed to
course, such studies of the diligence recruit new staff or partners capable of
and fairness demonstrated by judges, filling gaps in capacity.
prosecutors, and defense lawyers as However daunting the challenge of
the process unfolds would provide tailoring the response to carefully
invaluable additional information on measured symptoms, it does not
whether judges are actually changing imply obsolescence for any of the
the way they make pretrial release activities described. Better representa-
decisions, although the high volume tion at the pretrial stage might help
of relevant incidents that we would marshal facts that could make release
want to evaluate might place some more common; defense lawyers could
extraordinary demands on this sort of be well served by trained visitors to
methodology. Thus, prima facie statis- holding cells who can interview
tical evidence of a beneficial change detainees to develop relevant favorable
without a corresponding cost might facts; appropriate legislative changes
look like this: judges ordering pretrial could, if faithfully implemented,
detention at a slower rate,9 while other directly attack a tendency to detain
statistics hold steady. Going back to too readily. From this perspective,
Sparrow’s injunction, with numerous the interventions described in this
indicators and the desired trend lines volume might be reframed as useful
identified, one can proceed to consider probes, an initial phase in a better-
specific interventions. informed, possibly broader effort at

178 Open Society


Reflection

measurable, sustainable change. just invested significant sums and pre-


The important step of looking later- cious time in their own information
ally at other experiences, not just management. These agencies could
for other tools but for a broader have been a favorable audience for
perspective on the dynamics of new information if it had been
reform, seems to be difficult to take, or delivered in a way that enhanced,
at least not typical. None of our rather than competed with, their
accounts mentioned efforts in other recent efforts.
countries, although it is not entirely Boiled down, the suggestion for
clear what this indicates. The Justice advocates and reformers is to make
Initiative certainly perceives a gap in the politics serve the policy and vice
the literature, which this volume is
intended to help address. Would
forging links between reformers in
different places be difficult because The suggestion for advocates and
diverse experience is not viewed as a
reformers is to make the politics
terribly relevant source of ideas?
Or would fostering the practice of serve the policy and vice versa.
checking for counterparts and advice
from abroad be fruitful?
In fact, the range of experience versa. Data (e.g., the high or hidden
discussed here usefully cautions us to costs of detention, the incidence of
rethink the instinct to divide policy disease and violence affecting
and politics into separate concerns. detainees still innocent in the eyes of
Missed opportunities to measure (and the law) and analysis (e.g., the vast
then trumpet) policy impact are disparities in pretrial decisions that
actually a symptom of a failure to correlate with illegitimate factors like
identify the political points that might race or poverty) can enhance the
bolster or sway various constituencies. justifications for reform or counter
Indeed, the closer one looks at the the opposition platform. Promoting a
individual situations, the more evident politics of economic efficiency can not
it becomes that the line we attempt to only reframe the debate away from the
draw actually marks a broad interface traditional polarities of “hard” versus
rather than a division. What South “soft” on crime but also encourage
African reformers might have seen as greater scrutiny of the real impact
a technical problem—the incompati- of policies that have no empirical
bility of their new pretrial services soft- foundation. Attending to both politics
ware with the emergent systems being and policy, and acknowledging their
rolled out by the Department of Justice interdependence, at least ensures the
and the courts—also reflected, as right posture for success, as it guaran-
Louise Ehlers suggests, a missed tees that reformers will be oriented
opportunity to understand and play to toward the greatest potential problems
the motivations of agencies that had and opportunities.

Justice Initiative 179


Pretrial Detention

How would our reformers respond carceration is depriving the public of


to this suggestion? One response resources (although ensuring that the
might be that it is too dangerous to savings are actually redeployed to use-
attempt in a policy arena characterized ful ends is another daunting battle).
by far more demgoguery than detail. Some advocates of detention reform in
The technocrat’s definition of success the United States have turned to
may be sublime in its nuanced com- exposing the ways in which officials
plexity, but for precisely that reason— have tried to hide the costs of prison
its lack of simplification—is ridicu- construction through privatized
lously uninspiring as a political objec- financing and the financial risks to the
tive. Russian code reformers who con- governments (and taxpayers) that have
ducted outreach among implementing pledged to make good on defaults.11
agencies, only to have their opponents In many countries, the marginal
seize on the resulting feedback as the cost of an additional detainee is con-
basis for undermining the reforms, sidered negligible, as labor costs are
might say that their political opportu- low, little public money is spent on
nity was both too valuable and too food or other items for the inmates,
fragile to expose it up to a real dia- and overcrowding does not generally
logue. 10 These are fair objections, and prompt the building of new facilities.
cannot be dispelled until someone has Even in countries with lower fixed
successfully piloted a synthetic costs, however, estimates of more indi-
approach and inspired others to follow rect expense—lost employment,
(and validate) the way forward. heightened exposure to disease and/or
Is that feasible? The future chal- violence, and other expenses incurred
lenge will lie in expanding the spec- by inmate families to help maintain
trum of “winning” issues. Only the their detained relative—can begin to
account from the United States look significant. If we stop to consider,
mentions the costs of incarceration, a as Martin Schönteich suggests, the
potential trump card. To many, this spread of infectious diseases such as
will come as no surprise: in countries tuberculosis and AIDS among prison-
with high labor costs and arguably ers and by them to the general popula-
tougher rules on prison overcrowding, tion upon release,12 the impact on fam-
putting defendants in pretrial custody ilies, business, the health care system,
is more expensive than just about any and the public coffers could dwarf
alternative means of ensuring that other concerns about incarceration
defendants make it to trial without and soften resistance to reform.
flight or further charges. Although In Mexico (with an officially
some governments have actually estimated per capita prisoner cost of
invested in prisons as a down payment aboutone-fifth of that in the United
on a crude form of local economic States)13 the actual calculated public
development, jurisdictions with stag- savings as a result of a modest bail
nant or sinking economies should be supervision project in one Mexican
ripe for an examination of how overin- state have proven a powerful incentive

180 Open Society


Reflection

for a neighboring state government to Chilean and Russian accounts of


explore proposals designed to help legislative efforts suggest that the
lower historically high levels of pretri- agreements among different factions
al detention. A forthcoming study of were tenuous or illusory and withered
indirect costs of incarceration in quickly. The chief advocates of
Mexico should add an important new Russian reform were not able to find
dimension to the debate there. ways to avoid key changes through
Marshaling comparative experi- compromise and instead witnessed
ence—a rich source of data—has rollbacks that, according to Olga
political as well as technical value. The Schwartz, sent a crucial signal that the
United States’ deserved reputation
as “addicted to incarceration” might
enhance the political value of exam-
ples of alternative approaches tried There is much yet to be tried and learned.
here. Because successful initiatives are
universally attractive, politicians will
characteristically be interested to learn
what previously undetected advan- legislature was once again favoring the
tages may have impelled others to prosecution—and detentions skyrock-
embrace such experiments. eted. (Ironically, some of Chile’s most
In some cases a more give-and-take influential reformers, lacking suffi-
approach to politics might provide an cient data to rebut the claims arising
alternative to “winning” the policy from the repeal factions, took a trans-
debate. The most successful of our actional approach in selling off parts
examples here all incorporated some of the pretrial detention reform in
element of this approach. We have order to safeguard the larger re-engi-
noted above the PAS’s quid pro quo neering of Chilean criminal proce-
with the Malawi Law Society and D. dure.) South Africa’s pretrial services
Alan Henry’s account of the search for project, in many ways the brainchild
efficiencies he could offer to imple- of the justice minister, faltered
menting agencies in the United States because the frontline agencies were
in order to bring them on board. In never properly incorporated and felt
fact, an important commonality across that the project’s primary currency—
the five best-sustained initiatives was a new information about cases and
workable arrangement with agencies defendants—never came downstream
having some operational control over to them in a usable form.
the subject matter. Even Nigeria’s proj- There are, of course, caveats. Even
ect organizers, who enjoyed strong a battery of seemingly highly relevant
political support at high levels of statistics remains subject to multiple
government, were quick to seek interpretations. Additionally, the pub-
formal collaborations with the police lic response to data can be unexpected.
and obtain agreements with them at A 2002 survey of public attitudes
the precinct level.14 By contrast, the in the United Kingdom regarding

Justice Initiative 181


Pretrial Detention

the shockingly high cost of incarcera- nents of reform—should be a distinct


tion largely provoked calls to cut back advantage in bringing together numer-
on the prison “luxuries” that were ous interests and producting collabora-
presumed to be driving up expendi- tive actions.
tures.15 Finally, political marriages of The ambiguities touched on here
convenience can become, without prior and highlighted throughout this vol-
warning, inconvenient for one or both ume suggest there is much yet to be
parties—witness Putin’s divestment tried and learned and that future
from the reform movement of 2002. efforts should embody a rigor and
Reform advocates can help counter sophistication equal to the complexity
negative influences by working with and sensitivity of the task. Even if the
different messages and making sure relationship of the reform impulse to
that they are timely. Case studies about politics—defined as the processes and
individual successes with alternatives calculations that determine stakehold-
to detention can be powerful vehicles er decisions whether to promote
for public education and particularly and/or implement change—is
useful in the wake of unfortunate inevitably characterized by tensions, it
incidents that stoke fears about the should not be ignored. Good informa-
dangers of liberalized treatment. tion is one critical tool for mediating
Success in politics, partisan operatives these tensions, while allowing advo-
remind us, is about crafting the right cates to marshal political support,
messages for shifting audiences. define appropriate interventions, and
Having good information—better, develop accurate and effective meas-
at least, than that proffered by oppo- ures of impact.

Notes

Robert O. Varenik is the acting executive director of the Open Society Justice Initiative.

1. Pretrial detainees generally form a subset of the jail population, which in turn can include
defendants detained awaiting trial; defendants who have been convicted already but are detained
for a violation of their probation while they await trial on another offense; transferees from other
facilities who have not been permanently assigned; and convicts serving relatively short sentences
for misdemeanor-level crimes. When one considers the ever-changing nature of the population
due to the relatively short-term stays (compared to post-conviction sentences) it becomes more
apparent why it is extremely difficult even to isolate the pretrial detainee population for
measurement.

2. This formulation comes from Christopher Stone of the Kennedy School of Government.

3. Another, more positive account of the Russian reforms avoids mention of the counterreform
that followed. Lauding the tactics of the reformers for achieving something while circumstances
permitted, the author notes that a more deliberate, less opportunistic approach might not have
yielded anything before the tide turned against reform. Matthew Spence, “The Complexity of
Success in Russia” in Thomas Carothers, ed., Promoting the Rule of Law Abroad (Washington, D.C.:
Carnegie Endownment for International Peace, 2006). It is clear however, that after initial
significant decreases in pretrial detention, the numbers shot up dramatically after 2002. Statistics

182 Open Society


Reflection

from the Federal Enforcement Service actually indicate that the detention numbers were higher in
2005 than before the reform, although court data suggest they are still lower than prereform
levels. See Olga Schwartz, “Ebb Tide: The Russian Reforms of 2001 and Their Reversal” on pp.
116-117 of this volume.

4. The project report provides statistics covering only the catchment area of the project.

5. Remarks at seminar, “Measuring Impact in Human Rights: Models for a Path Forward”
(Cambridge Massachusetts: Carr Center for Human Rights, July 7, 2006).

6. See, for example, L. Bhansali and C. Biebesheimer, “Criminal Justice Reform in Latin
America,” in Carothers, Promoting the Rule of Law Abroad (2006), 313–15. In a survey of results
across Latin America, perhaps the world’s largest laboratory for criminal justice reforms, the
authors draw upon figures from USAID, national governments, and UN and OAS-sponsored
agencies mandated to study and compile data on criminal justice; for pretrial detention, this is the
sole indicator cited. USAID’s technical guidance for its field personnel suggests that even this
statistic represents a luxury, because outside Latin America many developing countries do not
record much information about detainees. “Handbook of Human Rights and Governance
Program Indicators” (Washington, D.C.: U.S. Agency for International Development, 1998),
http://www.usaid.gov/our_work/democracy_and_governance/publications/pdfs/pnacc390.pdf.

7. See Benjamin Naimark-Rowse, et al., “Studies in Reform: Pretrial Detention Investments in


Mexico, Ukraine, and Latvia” on pp. 152-171 of this volume.

8. In fact, as a proportion of the general population, pretrial detainees rose from 49 to 85 per
100,000 inhabitants in the decade after 1995.

9. In other words, fewer new pretrial detainees per arrest.

10. On the other end of the spectrum, Venegas and Vial point to an unusually high degree of
consensus on pretrial detention reforms at the time Chile’s initial reforms were considered.
This concensus resulted in there being virtually no debate on the issue, and reformers appeared
unprepared for the fracturing of what they now view as an “unstable” coalition behind the reform.
The consequent absence of crucial pretrial detention data to accurately guage the impact of
reform left advocates ill-positioned to stem the damage from the mushrooming partisan
demagoguery about the new system’s “promoting criminal impunity.” For reformers there,
a more disciplined approach to the technical aspects of policy might have been better politics.

11. Kevin Pranis, Doing Borrowed Time: The High Cost of Back-door Prison Finance (Brooklyn: Justice
Strategies, 2006) (citing bond experts who warn that “[a] wave of private jail construction
designed to spur economic development in the rural Southwest poses a growing risk to
bondholders and the counties that stand behind the projects”).

12. Martin Schönteich, “The Scale and Consequences of Pretrial Detention around the World,” on
pp. 11-13 of this volume.

13. A recent study commissioned by the Justice Initiative preliminarily put the total of direct and
indirect marginal per diem costs in one state at about $50 per prisoner.

14. Subsequent events have since proved the utility of this approach. Despite significant turnover
among allies of the project, the reforms have survived and prospered.

15. “What do the public really feel about non-custodial penalties?” (London: Esmée Fairbairn
Foundation, November 2002), www.rethinking.org.uk/PDFs/Briefing%203%20-%20Atti-
tudes%20to% 20custodial%20sentences.pdf.

Justice Initiative 183


Justice Initiatives

The Open Society Justice Initiative, an operational program of the Open Society
Institute (OSI), pursues law reform activities grounded in the protection of
human rights, and contributes to the development of legal capacity for open
societies worldwide. The Justice Initiative combines litigation, legal advocacy,
technical assistance, and the dissemination of knowledge to secure advances in
the following priority areas: national criminal justice, international justice, free-
dom of information and expression, and equality and citizenship. Its offices are
in Abuja, Budapest, and New York.

Board
The Justice Initiative is governed by a Board composed of the following members: Aryeh Neier
(Chair), Chaloka Beyani, Maja Daruwala, Anthony Lester QC, Jenny S. Martinez, Juan E.
Méndez, Wiktor Osiatynski,´ Herman Schwartz, Christopher E. Stone, Abdul Tejan-Cole, and
Hon. Patricia M. Wald. Diane Orentlicher is on leave from August 2007-August 2008.

Staff
The staff includes Robert O. Varenik, acting executive director; Diane Orentlicher, special counsel
(from August 2007-August 2008); Zaza Namoradze, Budapest office director; Kelly Askin, senior
legal officer, international justice; David Berry, senior officer, communications; Sandra Coliver,
senior legal officer, freedom of information and expression; Julia Harrington, senior legal officer,
equality and citizenship; Katy Mainelli, director of administration; Chidi Odinkalu, senior legal
officer, Africa; Martin Schönteich, senior legal officer, national criminal justice; and Denise
Tomasini-Joshi, associate legal officer, national criminal justice. James A. Goldston, executive
director, is on leave from August 2007-August 2008.

Contacts
New York Budapest Abuja
400 West 59th Street Oktober 6. u. 12 Plot 1266/No.32
New York, NY 10019, USA H-1051 Budapest, Hungary Amazon Street
Phone: +1 212-548-0157 Tel: +36 1 327-3100 Maitama, Abuja, Nigeria
Fax: +1 212-548-4662 Fax: +36 1 327-3103 Phone: +234 9 413-3771
Fax: +234 9 413-3772

Online
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