Discover the Latest Innovations and Lessons Learned in Rule of Law and Legal Empowerment Projects
Last month, Open Society Foundations released a report on “Presumption of Guilty: The Global Overuse of Pretrial Detention.” The report looks at the consequences of the over dependence on pretrial detention, and below, you can read excerpts on how different countries have tackled and reduced pretrial detention.
Political Windows of Opportunity
Some political circumstances can actually work in favor of reform. Few countries have the resources and conditions that made the reform and reduction of pretrial detention possible in Finland and Singapore, which are described below. However, many states possess one or two similarities to these countries, and reformers should look to exploit these to their advantage when seeking to implement rational and rights-based pretrial justice policies.
Finland’s Strategy to Reduce Pretrial Detention
Finland has one of the lowest rates of pretrial detention worldwide: less than one- fifth of its prison population is comprised of pretrial detainees, at 10-15 detainees per 100,000 inhabitants yet during the 1950s the country’s incarceration rate exceeded most of Europe’s. Between 1966 and 2004, the Finnish parliament undertook 25 legislative reforms, all seeking to reduce the use of incarceration.
Finnish authorities have demonstrated a widespread political will and consensus to reduce prisoner numbers. Civil servants, the judiciary, prison authorities, and, crucially, elected officials, all shared a commitment to reducing incarceration. Unusual media market also made reform possible in Finland. Some 90 percent of Finns read a newspaper daily, one of the highest rates in the world, and almost 90 percent of newspapers are sold by subscription. This means that newspapers do not have to be alarmist: they do not rely on startling headlines to sell newspapers at a newsstand.
Finland’s judiciary and prosecution service had the freedom and the will to implement good practices because they enjoy constitutionally guaranteed independence, because they (as well as the police) are permanently appointed non- partisan career officials, and because Finnish judges and prosecutors have training in criminology and criminal policy. In cooperation with universities, Finland provides regular courses and seminars for judges and prosecutors to improve their knowledge of pretrial detention and sentencing practices.
This political atmosphere made it possible for Finland to develop social and situational crime prevention strategies, decriminalize certain conduct, introduce alternatives to imprisonment and pretrial detention, expand diversionary mechanisms and mediation, and introduce juvenile justice mechanisms that allowed social welfare and child protection measures to address misconduct by all children under 15 and many of those aged 15-17.
Singapore’s Strategy to Reduce Pretrial Detention
Singapore has also benefited from a concerted and sustained policy initiative that substantially reduced its number of prisoners. A reduction in recidivism from 44 percent for the 1998 release cohort to 27 percent for the 2008 release cohort significantly contributed to the declining prison population. The rehabilitation Framework, developed in 2000, and the yellow ribbon Project, launched in 2004, transformed Singapore’s recidivism rate. The project engages the community in accepting ex-offenders and their families, including signing up thousands of employers willing to hire ex-offenders and organizing numerous community activities to raise awareness.
Under its auspices, some 1,700 volunteers, almost as many as regular prison staff, provided training and counseling for prisoners in Singapore in 2008. Annual public opinion surveys undertaken by the Singapore Prison Service find that 70 percent are willing to accept ex-offenders either as friends or colleagues.
Like Finland, Singapore has a number of advantages in promoting and implementing penal reforms. Singapore is a democracy, but the same ruling party has been in power since Britain granted the nation self-government in 1959, making for policy continuity. Moreover, the government benefits from a strong state apparatus and an experienced and qualified civil service. Singapore is a relatively small country which, no doubt, facilitates the deployment of publicity campaigns. Some of the commonalities include a political system which can sustain a policy position without being driven off course by the day-to-day vagaries of public, media, or party political opinion; a system of government which has the capacity to implement policy; and a broad social consensus about the utility of the reform.
Discretion for Judicial Officers
Laws should provide judicial officers with wide discretion to release defendants awaiting trial. Some countries classify numerous offenses as “non bailable”—that is, persons charged with such offenses cannot be released awaiting trial. In many Mexican states, for example, courts cannot grant pretrial release to any person charged with robbery, serious assault, stock theft, or assisted suicide placing the onus on the defendant to show why he should be released awaiting trial. Changing these policies to allow judicial discretion will decrease the arbitrary imposition of pretrial detention.
Laws should ban pretrial detention where logical
Brazil prohibits pretrial detention for persons charged with an offense for which the potential maximum sentence is four years of imprisonment or less, provided such a person is not charged with a crime involving domestic or family violence committed against a vulnerable person and has not previously been convicted of a serious crime. Ecuador’s laws stipulate that pregnant women cannot be held in pretrial detention.
Laws should set an upper time limit on the legally permitted duration of pretrial detention
Denmark uses a “proportionality principle,” generally disallowing pretrial detention in excess of two-thirds of the expected custodial sentence. Poland stipulates that pretrial detention should not exceed three months, but permits extension by nine months.
The law should provide for a variety of alternatives to pretrial detention
It is important that judges have a wide range of flexible bail conditions available to them. Such alternatives to pretrial detention can include precluding defendants from engaging in particular conduct, leaving or entering specified places or districts, or meeting specified persons. They may also include ordering defendants to remain at a specific address; report on a periodic basis to a court, the police, or other authority; surrender passports or other travel documents; or provide financial or other forms of security so as to guarantee attendance at trial. Unfortunately, a review of pretrial detention laws and practice in the EU found little evidence that the introduction of alternatives to pretrial detention resulted in a reduction in the number of detainees incarcerated as a proportion of all prisoners. But, as noted above, these kinds of options give judicial actors something on which to build.
De Facto Pretrial Detention & Ensuring Defendants Can Meet the Requirements
Judicial officers should verify that defendants are able to meet the requirements they set. Without this verification, conditions act as de facto pretrial detention.
States should make provisions to address reality that even low bail amounts may be unaffordable
In 2007–2008, some 8,300 persons who were granted bail were held in pretrial detention in South Africa because they could not afford the bail amounts. South Africa took action, releasing those who could not afford small bail fees, and developed a protocol to address the problem of unaffordable bail fees. All those with bail set at less than r1,000 have the right to reappear before the court if within 14 days of the court having granted bail they have not managed to raise the monies. By 2010, the number of pretrial detainees with bail amounts less than r1,000 had decreased by 47 percent, to 4,458.
Mandatory Review of Delays
Laws should dictate a system of mandatory review as a check on unnecessary delays and to reduce the burden on the defendant of finding “new facts” with which to present a fresh bail application. Defendants cannot be expected to understand the reasons for delays in the prosecution of cases and the onus should be on the prosecution to show to a court at regular intervals why the continued detention of a defendant is necessary and reasonable. Evidence suggests that effective regular review can be at least as effective as statutory time limits in controlling the length of pretrial detention.
Collecting Data & Management Systems
It is important for justice systems to have effective information management systems that provide current, accessible information on the status of cases and defendants. Data could give judges information about the extent to which bail and pretrial detention practices achieve their lawful aims. The availability of data on issues such as failure to appear, the reasons for failing to appear, offending on bail, and interference with witnesses and victims is generally so poor that the effectiveness of pretrial detention cannot be analyzed with any degree of accuracy.
Diversion programs using a restorative approach to justice vary from country to country. They may include formal police caution, conciliation, community service, or individual, family, or group therapy. A review of legislation relating to diversion worldwide indicates that many countries provide diversion to drug- and alcohol-dependence treatment programs, some of them in ways that decrease pretrial detention.
Thailand and Papua New Guinea’s Diversion Program
Thailand successfully reduced its 250,000 inmates in 2002 to 185,000 by 2008, 28 percent of whom were pretrial detainees, through a diversion program. It included the development of community mediation centers to settle minor disputes within communities, the encouragement of the use of prosecutorial discretion not to prosecute under certain circumstances, the initiation of drug diversion programs, and the inclusion of pretrial diversion among the mandates of a new probation department.
Papua New Guinea cut the number of juveniles in pretrial detention by 62 percent between 2001 and 2007 through a diversionary protocol. A Juvenile Justice Working Group consisting of 21 government and community agencies collaborated to establish a comprehensive juvenile justice system, based on restorative justice, melanesian traditions, and contemporary juvenile justice practices. Activities included the implementation of a Police Juvenile Policy and diversionary Protocol encouraging police to use pretrial detention as a last resort for juveniles. Local mediators have been accredited to facilitate resolutions between the child, his parents, the victim, and community members. In addition, Juvenile Court magistrates throughout the country have received training on juvenile justice principles to ensure child-sensitive handling of children by the formal court system and the imprisonment of children only as a last resort.
Paralegals Reduce Pretrial Detention
Jurisdictions that allow paralegals access to people in police or prison custody can expect to decrease the overuse of pretrial detention. Paralegals are especially effective during the early stages of the criminal justice process, and consequently have a particular role to play in decreasing pretrial detention. They can screen cases in prisons, police stations, and courts; filter the caseload; and advise and assist those in conflict with the law at police stations, courts, and in prisons. Paralegals can, moreover, advise defendants on the law and procedure so that they understand the status of their case and how to navigate the criminal justice system in their own case. They can also link all the actors involved in the criminal justice process and facilitate communication and coordination to speed the application of justice. In advising pretrial detainees, they can make it possible for people to invoke legal limitations on pretrial detention and improve the success of bail applications.
Malawi: In rural and urban areas, PASI provides paralegals at police stations for adult arrestees and detainees, augmenting PASI interventions focused on prisons and courts. The paralegals provide support to arrestees making bail applications at the police station and court, trace relatives and sureties for bail, and screen and refer delayed cases for expeditious processing. Paralegals not only provided key information to improve the success of bail applications but made it possible for detainees to make bail. PASI also made a fairly big impact on dropped charges. They also help the detainee to understand the charges, the laws, and police procedures, and empower defendants to argue their cases by, for example, providing a better explanation or alibi, all of which contributed to dropped charges.
An evaluation also revealed that PASI’s paralegals sped up the time elapsing between arrests, charges, and the final disposal of minor cases by employing a number of activities originating at the police stations, such as tracing family members, witnesses, and sureties; awareness raising and information dissemination among arrestees (e.g., explaining the right to bail, discussing pleas to a lesser charge); and preparing detainees for their court hearings. Such efficiency gains bring about both individual and institutional benefits.
Long-Term Impact of PASI’s Program on Detainees and Poverty Reduction
PASI’s program, in which almost 2,000 of the 2,800 pretrial detainees counseled by the added paralegals went home more quickly, alleviated poverty for affected families. Ninety percent of families in Malawi live at a subsistence level, which means that the cost of visiting a detained relative and providing supplies, as well as lost income from the between 80 and 90 percent of pretrial detainees who were family breadwinners, could be extremely disruptive. PASI’s work also saves the state money in three ways: (i) providing a needed service to pretrial detainees which the state should be providing in many cases; (ii) reducing police caseloads and the number of people in pretrial detention at any one time, thus saving money for police, courts, and prisons; and (iii) reducing pretrial detention and thereby returning workers to farms and businesses—a benefit to the broader economy.
Paralegals Can Improve Self-Representation
Paralegals can improve the quality of self-representation among defendants, especially during the pretrial phase of the criminal justice process. Awareness-raising and education on self-representation, demystifying the court processes through role playing, and providing expertise about the bail process and the grounds on which judicial officers typically base their pretrial release decisions all perform this function. As a result, defendants become more active players and partners in the administration of justice, typically resulting in more successful bail applications at court. This, in turn, may help to check corruption in the criminal justice institutions. Knowledge of the processes and procedures of the criminal justice system by the public reduces vulnerability to manipulation and extortion of money by corrupt officials.
Legal Practitioner’s Role in Reducing Pretrial Detention
Using their knowledge of the law and their client’s circumstances, lawyers and paralegals can identify individuals who are eligible for release from the police station, and can assist them in proving their suitability for release. They can identify juvenile offenders and block their classification as adults. Legal practitioners can also inhibit police abuse of detainees and locate relatives and others who can assist detainees.
Legal Practitioner’s Role in the Police Station
A range of police station advice and assistance schemes —using a mixture of private lawyers, public defenders, and paralegals—has been established in several countries. England and Wales provide suspects who have been arrested and detained by the police with state-funded legal advice and assistance irrespective of their financial circumstances. Law firms under contract with the legal Services Commission provide advice at the police station. The contract requires them to have the staff available and procedures in place to ensure that a lawyer or paralegal is always available at short notice. Paralegals working under the supervision of a lawyer often provide advice.
Ukraine has three Public defender Offices established by the International renaissance Foundation, an NGO, to pilot new models of legal aid in criminal cases. Together, they employ 26 defense lawyers, providing legal advice and assistance to people detained by the police. Each office ensures that a lawyer is always on duty and available to provide assistance to a detainee at short notice.
In Nigeria, since 2005 the rights enforcement and Public law Centre has operated a police-duty solicitor scheme under an agreement between the National Police Force, the legal Aid Council, and the Open Society Justice Initiative. With the consent and support of the police, the Federal ministry of Justice, and the legal Aid Council, this non-governmental partner serves the major police precincts of four states: Imo, Kaduna, Ondo, and Sokoto. Duty solicitors attend designated police stations on a 24-hour schedule, and the police must permit access. The duty solicitors advise suspects and detainees and advocate on their behalf, applying for bail or discharge from detention. Twenty duty-solicitors comprising four legal Aid Council lawyers and sixteen youth Service lawyers work as duty-solicitors in the project states. Over an 18-month period between January 2008 and June 2009, the duty solicitors had contact with over 3,500 pretrial detainees, of which 2,600 were released from detention. Detainees assisted by the duty solicitors spent an average of eight days in pretrial detention, compared to a period of many months typical for Nigeria.
Practitioners’ Role in Prison
Lawyers and paralegals can assist detained defendants who never received bail in preparing and lodging bail applications. They can train prisoners individually to prepare bail applications or offer group workshops to inform remand prisoners about court procedures, court etiquette, and their options for gaining representation by a lawyer or acting for themselves.
As part of their prison-based work, legal practitioners typically seek to identify pretrial detainees whose remand warrants have expired, who have been in pretrial detention longer than the statutory maximum allows, who wish to plead guilty, and who are terminally ill. These identifications can lead to release, changing the conditions of bail, granting bail where it was previously refused, setting a new trial date, accepting a guilty plea, or discharging a matter.
In a number of African countries, paralegals conduct regular prison-based clinics aimed primarily at guiding pretrial detainees to apply the law in their own case. The paralegals use a range of participatory learning and forum theatre techniques, including role plays, games, and songs, that enable detainees to, for instance, apply for bail, make a plea in mitigation (should they wish to plead guilty), cross-examine witnesses and police officers, and make an appeal.
In Kenya, Muslims for human rights (MUHURL), an NGO that provides paralegal services to defendants, has offices inside a number of prisons, which are open every weekday. Overcoming initial resistance by pretrial detainees and prison wardens, both of whom suspected paralegals of intending to report on them, MUHURL’s paralegals provide basic legal advice and legal aid clinics, and contact relatives and counsel for detainees. They also monitor respect for human rights at the prisons they visit, making impromptu cell visits and reporting concerns to their own leadership for follow-up with senior prison administrators.
Government Programs that Reduce Pretrial Detention
Police summons and police bail both can have the effect of decreasing pretrial detention. The first alleviates the need to arrest a suspect, book him at the station, and then hold him just to appear in court and get a court date. The second requires arrest and booking, but eliminates detention afterward, releasing the arrestee on bail. In many cases where offenses are minor, empowering police to issue a summons rather than make an arrest is effective and appropriate. It saves police time and resources and, crucially, reduces the number of people detained in a police lockup before their first court appearance. Requiring the police to issue a citation in lieu of an arrest for minor offenses saves police resources and lowers pretrial detention. These police-empowering programs should be expanded around the world.
Police Power to Release Suspects on Bail
Empowering police to release suspects on bail, either before or after charging them, rather than detaining them in custody until a judge can set bail also decreases pre- trial detention. These programs require defendants either to report back to the police station or appear at a magistrates’ court on a particular date. In practice this means that defendants, once charged and bailed, must appear at the local magistrates’ court for a first hearing.
In some civil law jurisdictions, prosecutors have very little discretion; an investigating judge makes the decision to prosecute after a preliminary inquiry, or law requires that every case be prosecuted where sufficient evidence exists to do so. In other civil law systems the prosecutor has discretion to prosecute, to dispose of a case upon the fulfillment of conditions by the accused person, or not to proceed at all. Some civil law systems grant this discretion on a limited basis. In common law systems, exercising discretion whether to prosecute is generally a key function of the office of the public prosecutor. The exercise of discretion may depend on a range of factors over and above the adequacy of evidence.
Prosecutorial Policy on Detention
Given the significance of prosecutors in determining pretrial detention, prosecutorial policy should instruct prosecutors to request the detention of defendants awaiting trial in a sparing manner and to deal with cases involving pretrial detainees expeditiously.
Pretrial Evaluation and Bail Support Services
Pretrial evaluation and bail support services have two broad goals: First, to allow—to the maximum extent possible—pretrial release pending adjudication; and second, to assure that defendants appear in court to face their charges and ensure they do not pose a threat to the public.
Most jurisdictions that offer pretrial information schemes also provide bail support (also called “bail supervision”). These services assist arrestees in completing their pretrial release period without re-offending or failing to appear in court. Released arrestees who miss a court appearance may do so because they do not know their date or forget it or willfully put it out of their minds.
Bail support programs have developed innovative ways—such as posting or emailing reminder letters, telephoning arrestees on the morning of their court appearances, and providing a written note with the next court date to the arrestee at every court appearance—to get arrestees to appear in court on the due date. Supervising arrestees in between court dates to curtail re-offending or witness tampering may involve linking participants with social services such as drug treatment, education and training, job development, housing services, and family counseling. Providing a rigid structure to an arrestee’s daily activities can redirect him. These services may involve weekly appointments with a pretrial services officer, which give the state a mechanism to identify absconded arrestees in advance of a court date. Many programs provide bail support to arrestees who would suffer particular hardship in pretrial detention, such as juveniles, single parents, and those with mental health problems.
In early 2012 the state governor of the Nigerian state of Ondo commissioned Nigeria’s first court to be built on prison premises. The court is to be built at Olokuta Prison in the state capital of Akure, which holds four times the detainees for which it was designed, the vast majority of them pretrial detainees. India has held jail adalats (literally “prison court”) frequently since 1999. A review of 73 Indian prisons and sub-jails found that jail adalats disposed of over 5,000 cases over a one year period. A review of monthly camp courts in Bihar, India, shows that they have been highly effective at reducing the backlog of bailable cases and other simple criminal cases.