Pretrial Detention and Corruption: Justice for Sale

A young man—let us call him Caleb—was walking his five-year-old son to school through Nairobi’s morning rush when the police van pulled up. Officers spilled out, grabbed Caleb, and threw him into the back of the van. As the van drove off, Caleb looked out the window to see his son, in his school uniform, rooted to the sidewalk.

Caleb didn’t know it at the time, but he was caught at the nexus of pretrial detention and corruption, where crooked police, jail guards, and judges use their power to profit. Caleb and the other prisoners in the van were told they were going to jail—unless they paid a bribe. Those who paid were dropped off in a distant neighborhood. But those who could not afford a bribe, including Caleb, were beaten by the officers with metal rods. Then it got worse.

In Caleb’s case, a partner in the Global Campaign for Pretrial Justice—the International Justice Mission—was eventually able to win his release from prison, but only after he had spent 450 days in jail on the trumped up charge of Robbery with Violence, which carries the death penalty under Kenya’s criminal code. During his time in jail, Caleb lost his job, his family was forced to move, his daughter had to leave college to work, and his young son had to change schools.

Around the world, millions of poor people like Caleb are trapped in the mutually-reinforcing cycle of corruption and excessive pretrial detention. They are arrested because they cannot pay a bribe to the corrupt police officer, then denied access to counsel or family because they cannot bribe the corrupt guard or prosecutor, then held indefinitely—or found guilty—because they cannot bribe the corrupt judge.

In too many countries, the criminal justice system is essentially being used by the police and judiciary not to pursue justice, but as a money-making enterprise, sometimes in order to supplement inadequate official salaries, sometimes out of greed.

This corruption flourishes in the pretrial phase of the criminal justice process. During the period between an arrest and the start of a trial, decisions about a suspect are usually taken with less scrutiny than is the case with the treatment of convicted prisoners. More decisions are left to the discretion of police, prosecutors and judges. Charges can be easily dropped, or lessened; court appearances can easily be postponed.

As a result, police, prosecutors, and judges are can arrest, detain, and release individuals based on their ability to pay bribes. Those caught in this web suffer, and society as a whole also pays a high price.

Corruption is never good. But corruption in pretrial detention is especially insidious. It results in arbitrary arrests and unnecessary detention, wasted government resources, increased public health costs, increased poverty, and a fundamental lack of public trust in governmental institutions. The justice system’s credibility suffers when the innocent are arrested and even convicted because they cannot pay, and the guilty go free because they can.

For these reasons, partners of the Global Campaign are conducting programs that help stem such corrupt practices.  For example, NGOs in Africa ensure that paralegals are present during interrogation at police stations; in Latin America, partner organizations interview defendants at the time of arrest, in order to provide magistrates with information that will assist judicial decisions on release (sometimes with conditions) or detention. Even something as simple as an NGO’s recording who is arrested and when and where they are jailed can reduce bribe-seeking.

In short, tested strategies exist to curtail the noxious impact of corruption in criminal justice systems—one of the Global Campaign top priorities. We believe more needs to be done, because pretrial detention, while it causes so much damage, remains a peripheral issue for many development assistance funders as it is for many governments. We also believe that a global campaign can help establish regional standards for an issue that is often dealt with at a local level, and encourage groups and judicial authorities to learn from each other’s experiences across national boundaries.