The Politics of Fear: Latin America Backslides on Excessive Pretrial Detention

When Latin America emerged from decades of civil wars and dictatorships in the 1990s it experienced a wave of democratizing reforms. One of the distinguishing marks was a transformation of criminal justice systems from Central America to Chile, often cast in terms of a move from written procedures to American-style oral trials.

But a more fundamental reform saw a new readiness to abandon what had been previously an almost automatic preference for holding suspects in pretrial detention, in favor of selectively using detention to prevent defendants from absconding or interfering with the legal process. Last week the Inter-American Commission on Human Rights issued The Use of Pretrial Detention in the Americas, a survey of the field. The report, initially only available in Spanish, delivered the sobering news that by 2014 much of that progress has been rolled back.

This is not simply a problem for the Americas. Limits on pretrial detention are rooted in the universally accepted norm of the presumption of innocence. Yet this bedrock concept is not only readily ignored in practice, but also treated as if it doesn’t mean what it says.

In every region of the world, legislators pass laws that deny any chance of pretrial release for broad or vague categories of crimes, heedlessly following the blithe pronouncements of tough-on-crime politicians. Prosecutors happily go along for the ride, while judges seem to forget that each case is to be decided on its own merits before routinely dispatching defendants into remand custody. Defense lawyers too often shrug and rather than resist, rationalize—“this is the way it is”.

But the politics of fear have crowded out arguments rooted in legal values. Behind this phenomenon lie broad developments, such as the rise of gang-related crime, usually linked to the drug trade, and the emergence of vocal constituencies that feel threatened by crime.

In the Americas, legislators in a dozen countries have gutted pretrial reforms since 2000, bringing the majority into conflict with international law. It is not just a legal principle, however important, that is at stake. As the report recalls for us, the overuse of PTD lends itself to direct attacks on the physical integrity of those in custody—it is what we might call, to borrow a phrase from the war on drugs, a gateway violation. It is also linked (as the report examines in detail) to deficits in procedural integrity—in turn a result of a failure to ensure both access to counsel and judicial independence.

Describing the problem as broadly as it needs to be stated, Pretrial Detention in the Americas highlights a regional threat to a core norm, and identifies the corrosive effects of politics on law and policy. The available data on violent crime in the Americas over recent decades certainly doesn’t suggest that detaining more people has stemmed that tide. We have a better sense, however, of the cost—in budgetary terms, rights abuses, and the impact on citizen security that comes from lost income, absent parents, and the other dislocations that incarceration entails.

The report signals some important challenges for the next steps. I will touch on one: measuring and assessing the nature of the practice in a given country or jurisdiction. I note, to illustrate the problem, that the report makes ample reference to the percentage of a nation’s detainees still awaiting trial. But while perhaps a useful figure for those running prisons (who should be law be separately accommodating pretrial and sentenced prisoners) this tells us precious little about how pretrial detention is determined—and offers precious little practical guidance or incentive to a prosecutor or ministry official trying to model new practices that will help alleviate the problem.

After all, this indicator could be brought to very favorable levels either by limiting the excessive use of pretrial detention—or, conversely, by subjecting everyone accused to a summary trial with an automatic guilty verdict. Despite its crippling limits, this figure is not only the standard indicator for most countries and institutions; it is often the only one for which one can find widely available data. As an indicator that shapes reform efforts, it may do more harm than good.

We need indicators that can help us to understand both qualitatively and quantitatively whether there is a problem, how severe, and what aspects of system practice are most implicated.

This is not an easy challenge. More important, as the report lays bare, it’s not merely an academic one. The indicators we are talking about may demonstrate where the power lies in the decision making, and that may then help us pin point which entities most need to be engaged to limit abuse. We might then work with particular agencies to give them measurable targets—such as faster turnaround on investigative case files that might lessen the duration of detention—and be used by them to demonstrate increased efficiency. With approaches like that, all those concerned, from politicians to police and from court staff to rights groups, can work together in the service of citizen security without undermining public security.