Why the Overuse of Pretrial Detention Is an Overlooked Human Rights Crisis

Every year, around 15 million people find themselves behind bars, awaiting trial on criminal charges. Some will end up waiting months or even years for their day in court—victims of what is perhaps the most overlooked human rights crisis of our time: the overuse of pretrial detention. 

Many don’t need to be there, but are held on charges linked to minor, nonviolent offenses. Others should have been tried, or released: people like Sikiru Alade, a young Nigerian who spent almost 10 years in pretrial detention accused of involvement in an armed robbery until he was released in 2012.

From Brazil to Pakistan, many defendants spend more time behind bars awaiting trial than the maximum sentence they would receive if eventually convicted. In Chile, between 2005 and 2010, less than a quarter of pretrial detain­ees ended up being convicted and receiving a custodial sentence. Even in England and Wales, one half of all pretrial detainees are ultimately acquitted or receive a non-custodial sentence.

Not surprisingly, it is the poor who make up the vast majority of those held in pretrial. A new global survey on the issue from the Open Society Justice Initiative, Presumed Guilty: The Global Overuse of Pretrial Detention, notes that the poor “are more likely to come into conflict with the law, more likely to be detained pending trial,” and less able to afford the keys to pretrial release: a bribe, bail, or a lawyer.

Ethnic minorities are also disproportionately represented in pretrial detainee populations around the world—Dalits in India, African Americans in the United States, Aboriginal people in Australia.

The result is a horrific waste of human life. Compared to sentenced prisoners, pretrial detainees often enjoy less access to food, adequate beds, health care, or exercise. Infectious diseases—HIV/AIDS, hepatitis, and tuberculosis—are common. According to the World Health Organization, suicide rates among pretrial detainees are three times those of convicted prisoners.

Not all detention is irrational or unlawful. Persons who present a genuine risk of flight or of endangering witnesses or the community must be detained before trial, in the absence of reasonable alternatives. Applied properly and sparingly, pretrial detention plays an important role in a balanced criminal justice system.

There are solutions for reducing pretrial detention being pursued around the world. One important step is to provide defendants with some legal advice when they appear before a magistrate, to ensure that there is proper grounds for arrest, and to make the case for pretrial release if there is no threat to the public.

These projects don’t cost much, and they can reduce costs and cut prison overcrowding. Other steps include properly financing the training of judges and police, and even basic steps such as ensuring that there are police vehicles available to take suspects to court hearings.

Governments and donors need to support this kind of reform work, which has a direct impact on the economic and social well-being of detainees’ families and communities. That’s one of the reasons why the Open Society Foundations and others want the United Nations’ new post-2015 development goals, now under negotiation in New York, to include clear and measurable goals for this kind of work—under the rubric “access to justice.”

After decades of over-incarceration, cutting the number of people behind bars who face trial is a global imperative.

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My country,the Central African Republic is faced this dramatic situation which is growed worse with current crisis.

Military conflict invariably reduces state resources for the delivery of criminal justice services. One consequence is an increase in the number of pretrial detainees and the duration of their detention.

Pretrial detention affects poor and marginalized communities. This is very true to Tanzania as the criminal justice system is not working, the laws in place encourage putting arrested person in pretrial detention unnecessarily. im currently working to identify laws and practice make pretrial detention as a rule and release on bail pending the trial as exception in Tanzania.

In many parts of East Africa pretrial detention populations are disproportionately comprised of persons suspected of having committed minor and colonial-era offenses. Needed reforms include a repeal of laws which allow for the arrest and detention of persons suspected of minor crimes, and changes in practice by police and prosecutors to ensure that pretrial detention is used in exceptional circumstances only.

The fight against injustice is for all stakeholders.

In Kenya Persons with Disabilities end up in prison due to lack of lawyers to represent them due to the exorbitant fees charged and most of them cannot afford. They suffer and end up paying for crimes they have not committed.

Not only do the police need to embrace alternative dispute resolution in Kenya, there is also urgency for the administrators of justice to be capacity built to divert cases from the mainstream criminal justice system towards restorative justice programs. This, we ought to work hard towards.* Kenya.

Arbitrary arrest and pretrial detention is the order of the day for the police in Nigeria. Most often than not, suspects are coerced into writing their statements from the arresting officer's point of view. As at May this year, out of 579 prisoners held at Kuje Prison in Abuja, 440 were awaiting trials, 129 convicted and 5 sentenced to life imprisonment. These are just figures for a prison with the capacity for 560 prisoners.

The figures for Nigeria are disconcerting. The pattern you describe - of prisons holding more pretrial detainees than sentenced prisoners - is unfortunately common to many jurisdictions. It's a key indicator of a dysfunctional criminal justice system.

Pre-trial detention must be seen as a measure of an exceptional nature, rather than the norm. In my opinion a justification for preventive detention or pre trial detencion can not be based on the severity of the offense charged either. The only justification for pre-trial detencion should be to ensure effective investigation, secure all available evidence, or to ensure that they do not abscond. The application of preventive detencion should follow the criteria of necessity, proportionality and reasonableness that international standards requires ass well.There ara measures which are less harmful such as domiciliary monitoring with electronic bracelet. Using systematically, poorly justified and excessively long periods of pre- trail detencion violates the presumption of innocence, constitucional and human right.

Cameroon is a party to a number of international human rights treaties including the convention against Torture and other cruel, Inhuman and Degrading Treatment or Punishment (CAT). The Cameroonian government has also made considerable efforts recently to promote the rule of law in the country. This includes constitutional and legislative guarantees for fair judicial processes. Nonetheless, upon examination of the Bamenda Central prison,(which comprises one of the 72 prisons scattered over the national territory with an average prison population of 575 inmates) several common themes of human rights abuses emerges including the failure to protect the rights of accused persons, overcrowding and abusive prison conditions and the unfulfilled mandate of rehabilitation. There is no doubt that this is as a result of the social and economic inequities that plagues the Cameroonian society. A majority of the population remains unable to have access to the criminal justice system. The poor are far more likely than the rich to be arrested, if arrested charged, if charged convicted, if convicted sentenced to prison. This problem is further compounded by the fact that empirical research into the criminal justice system lacks scholarship dearth. Prisoners' have become less enthusiastic research areas and coupled with the fact that scholars fail to adequately address sensitive issues plaguing the criminal justice system in Cameroon.

Smart prevention better than cure.
Yes this is an overlooked human rights crisis but in part it is because of another very important human right crisis that Open Society and governments overlook - the right to freedom from violence. This is a right to get governments to use the best knowledge to prevent violence when it is available to them as it is.
In 2014, we have more knowledge about how to stop street violence and violence against women than ever before. This knowledge is widely endorsed and shared by no lesser organizations than the WHO and the US DOJ.
It is time to get smarter about crime control and get this knowledge used. The World Bank among others has shown the huge benefits for sustained economic development of investing in effective violence prevention. By the way, they overlooked the benefits to so many at risk young men.
The challenge is to get governments to stop wasting resources and lives on policies that were inherited from the 19th century - namely policies that only react to crime through expensive and ineffective law enforcement, criminal justice and incarceration.
The crisis in rich and poor countries of outrageous over use of pre-trial detention cannot be solved on its own. It will be solved in major part through stopping the over-reliance on reaction and punishment and investing smartly in proven and promising violence prevention.
To help the Open Society group and politicians, I have prepared a guide to Smarter Crime Control in English which will also be available in Spanish before the end of this year.http://bit.ly/1av9GHF

Thanks for the comment, Professor Waller. I am happy to be able to tell you that Open Society Foundations is supporting the inclusion of violence-reduction targets, through the kind of initiatives you mention, in the post 2015 development agenda now being negotiated at the UN. We recognize the important part that violence reduction can play in protecting people around the world, while at the same time supporting the kind of access to justice solutions that can help reduce pretrial detention and unnecessary incarceration. Best wishes, Jonathan Birchall, Communications Officer, Open Society Justice Initiative

pre trial detention is a huge problem despite the end of the crisis in Côte d'Ivoire

This is a really important issue, thank-you for highlighting it.
I am currently carrying out research on women remand prisoners in Northern Ireland, where up to 45% of women imprisoned will be unsentenced prisoners. My research project is exporing the marginalisation of women remandees, and how it influences the remand decision making process.

I think this is a very good article. Utilizing police cars for escorting suspects to court hearings is an excellent idea. There are still too many people also in Hungarian prisons because of minor crimes. This completely destroys family ties and makes reintegration impossible. There is also a risk of commiting a new crime within prison walls. Some youngsters start their imprisonment carriers with short sentences and later they end up in high security units where they try to finish their life with teir own hands.

The pre-trial inmate crisis in Nigeria is symptomatic of an ill designed criminal justice system that considers warehousing supposedly innocent citizen as the end of criminal justice process. Until there is an holistic reform of the entire criminal justice process line in Nigeria, no intervention will solve this crisis.

many african country the peaple are not enjoy thier personal individual rights under the International convention on civil and political rights, especially rights indicated article 9 of this convention. there fore human rights indicated under international instruements are only written documents rather than respect and and protect peaples right, so what initiaves could under take by open society justice for ensurance the accountability of east african courtries under the international conventions.

I am interested in knowing more about the situation in the People's Republic of China. People, including high ranking generals and members of the Communist Party seem to be 'detained' for long periods of time (more than 12 months). They have no access to their families, let alone lawyers. If they were brought to 'trial', it is usually in a court which is restricted to the public, and the only evidence often consists of nothing more than a 'confession' from the accused and plea for forgiveness.

What is the view of the Society?

The situation in Kenya its even worse. Most of the remandees face pre-trial detention due to lack of legal presentation. Most of them stay in jail upto to 7 years before the cases are determined. And also the backlog of cases in the Judiciary system which makes cases to take longer time to be determined.

pretrial detention is the most essential problem we are facing here in South Sudan, where by most of the cases are seen after so long in detention. and this is due to many reasons, including lack seriousness from government who the custodian of such rights according to our Constitution and the weakness civil societies activists, because they fear their from arrest and detention without legal procedures. here I can say justice delay, justice deny.

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