COURSE OF JUSTICE

Pretrial detention needs rethink

Locking people up before trial is costly, contributes greatly to overcrowding.

In Summary
  • The demands of holding and processing detainees and transporting them to court tie up resources.
  • There is generally little or nothing to occupy detainees in the way of education, employment, or recreation.
Viwandani MCA Eric Gichuki with inmates at Naivasha GK prison which has over 3,000 inmates. The prisoners have welcomed the court directive by court that inmates who have served two-thirds of their jail term be released.
RELEASE THEM: Viwandani MCA Eric Gichuki with inmates at Naivasha GK prison which has over 3,000 inmates. The prisoners have welcomed the court directive by court that inmates who have served two-thirds of their jail term be released.
Image: GEORGE MURAGE

In Africa, prisons are used in large part for what was once their original purpose—not as a punishment or correctional measure but to hold suspects and offenders until they can be tried in court. The majority of people in prison on any one day are such pretrial detainees, perhaps with more than seven out of 10 prisoners awaiting trial.

Because of the generally short periods of their detention relative to time served by sentenced prisoners, prisoners on remand represent a much greater proportion of those received into prison each year than they do of the prison population on any one day.

Thus, although international law stipulates that penitentiary systems should comprise “treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation,” in practice, much of the work of prisons continues to be fulfilling a jailing function.

The unnecessary use of pretrial detention is problematic for a number of reasons. It breaches norms that require that detention should be a last resort and for the shortest possible time for those presumed innocent until proven guilty.

It damages the well-being of the suspects, some of whom will eventually be acquitted, and of their families. Moreover, it is also increasingly clear that locking people up before trial is costly, contributes greatly to overcrowding, and has a disproportionate impact on the day-to-day operations of prisons.

The demands of holding and processing detainees and transporting them to court tie up resources and impose opportunity costs on what prisons can do to rehabilitate and reintegrate convicts. There is generally little or nothing to occupy them in the way of education, employment, or recreation.

The longer the time spent in prison without trial, the more the chance of a fair trial fades; evidence goes stale, witnesses move or disappear, and the pressure on people to plead guilty increases as people wish to put an end to the uncertainty over their future.

These factors, combined with profile of the remand population, contribute to an environment where the dangers of acquiring infectious diseases or being tortured or subjected to corrupt practices by staff or other prisoners all seem to be greater among remand prisoners than among prisoners as a whole.

Pretrial detainees often experience greater levels of overcrowding and more impoverished regime than do sentenced prisoners. In addition to the harm to individuals involved, there is growing body of evidence of the negative socioeconomic impact of excessive pretrial detention.

In coping with the problem of remand prisoners, prison administrators may often feel that they are simply passive recipients of decisions made further up the criminal justice chain by police, prosecutors and the courts.

There is much that they can do, however, to assist the effective functioning of the process. For example, they can host paralegal services run by civil society organisations, which can help to expedite hearings, or even invite magistrates to hold court sittings within the prisons to avoid the need for escorts to court. Important too is the task of collecting and sharing with other criminal justice agencies data about the length of remand periods, in particular, numbers of prisoners charged with minor offences, whose period on remand exceeds the maximum or likely sentence.

There are of course some fundamental reasons for the unnecessary use and length of pretrial detention, including the inability of most defendants to obtain legal advice and assistance. Without it, people have no help in applying for bail, preparing their case, or speeding up the trial process.

While legal and paralegal assistance is a key part of the answer, there are other remedies also. For, example, there may be scope for diverting certain kinds of cases out of the criminal justice system altogether, so that they are dealt with through restorative processes.

The longer the time spent in prison without trial, the more the chance of a fair trial fades; evidence goes stale, witnesses move or disappear, and the pressure on people to plead guilty increases as people wish to put an end to the uncertainty over their future.

UN Principles and Guidelines say that anyone arrested, detained, suspected or charged with an offence that is punishable with imprisonment should be entitled to legal aid at all stages of the criminal justice process. This should prompt governments to address shortfalls in funding and capacity even though considerable investment will be needed to meet these demanding standards required by the UN.

While legal and paralegal assistance is a key part of the answer, there are other remedies also. For, example, there may be scope for diverting certain kinds of cases out of the criminal justice system altogether, so that they are dealt with through restorative processes.

Where prosecutions are brought, affordable bail terms and community based alternative to incarceration are needed in low-risk cases. Systems are needed not only to assess the likelihood that a defendant will fail to attend court, interfere with witnesses, or commit further crimes, but also to reduce those risks. Supervised places to stay and electronic monitoring may also have a role to play.

Developing these alternatives appears to be a more effective solution than building more prisons in a context where the country is already spending huge sums of money per day jailing people who have been granted bail but are unable to afford it.