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Normalizing Pre-Trial Detention in Global Corrections
By Robert Winters, JD, Professor, School of Criminal Justice, Kaplan University
Published: 11/27/2017

Prisoner-g When we survey the challenges facing corrections systems around the world as 2017 draws to a close, we find that the list of concerns in many cases echoes those of criminal justice professionals in the U.S.: overcrowding, a rising incarceration rate despite an overall drop in crime rates, sentencing rules that override judicial discretion, an aging prison population, and growing numbers of female and juvenile inmates. However, one issue is significantly prevalent: the widespread use of prolonged pre-trial detention, which in the U.S. has manifested itself in the debate over the granting of bail.

To provide a frame of reference, in 2015 the pre-trial detention rate in the U.S. was 20.4%. In other words, on average 20.4% of those held in jail or prison were detained for that reason. Some of the countries with similar rates will probably come as no surprise: Finland (19.7%), New Zealand (20.5%), Germany (18.6%), Portugal (16.2%), Austria (21.7%), Australia (24.3%). Others might be somewhat less expected: Kyrgyzstan (20.9%), El Salvador (20.6%), Sudan (20.4%), Costa Rica (17.2%), Zimbabwe (17.1%).

However, several European nations make extensive use of pre-trial detention, such as the Netherlands (39.9%), Denmark (33.8%), Italy (34.5%), Belgium (31.7%), Switzerland (40.6%), Luxembourg (41.6%), and even tiny Monaco (82.8%) (In fairness to Monaco, we must disclose that (1) its total prison population as of January 1, 2015 was only 28, and (2) once an individual is convicted and sentenced, he or she is transferred to a French prison to serve the sentence. This is an important reminder of the danger of relying on the significance of a single number and perhaps also of Mark Twain’s warning that there are three kinds of falsehoods: lies, damned lies, and statistics.)

African nations are among the worst offenders, with many from that region holding an extraordinary number of pre-trial detainees: war-torn Libya (90.0%), Liberia (83.0%), Benin (74.9%), the Central African Republic (70.2%), Cameroon (70.0%), Chad (63.4%), Togo (61.8%). In fact, only a handful of the continent’s prison systems had 2015 pre-trial detention rates below 30%: South Africa (26.0%), Botswana (23.3%), Zambia (23.2%), Gambia (22.2%), Ghana (21.1%), Lesotho (19.7%), Swaziland (18.1%), Malawi (16.1%), Ethiopia (14.0%), Egypt (9.9%), Rwanda (7.1%), Namibia (6.6%), Algeria (6.2%), plus the aforementioned Zimbabwe and Sudan. As of early 2017, 70% of Nigeria’s prisoners were unsentenced detainees, representing 47,229 inmates, and Lagos was at 85%.

India has one of the most significant problems; its pre-trial detention rate is high at 68% as of 2016, but given its huge population, that represents a massive number of inmates. In 2016 some 22 million cases were pending at the district court level and 4.5 million in the high courts. Some 6 million of the district court cases had lasted longer than five years. India’s challenge is one of manpower and budgets; the country has only 13 judges per million people versus a global average of 50, and the law ministry has one of the smallest proportions of the budget compared to its peers. Nigeria’s and Malawi’s high detention rates stem from very similar problems.

Lest we in the U.S. grow smug, however, it is worth noting that according to the Court Statistics Project, in 2014 state courts had just over 15 million incoming criminal cases (and that does not include Connecticut, Wisconsin, and Oklahoma, which did not report), and the federal district courts had 361,828 civil and criminal cases in the twelve months ended March 31, 2015. The only reason the U.S. courts do not have the nightmarish level of judicial backlog experienced by some of the countries mentioned here is that over 90% of U.S. criminal cases end with a plea arrangement, not a trial.

Another significant cause of high pre-trial ratios is the interruption of normal criminal justice system functioning in post-conflict states—or for that matter, those where conflict is still occurring. We already saw Libya’s 90.0% rate; similarly, Yemen is at 70.1% and Syria is at 50.5%. Conflict nations with extensive outside assistance have fared better; Iraq is at 41.5%, and Afghanistan is near U.S. levels at 25.4%.

Pre-trial detention is sometimes simply a matter of policy. The NGO Fair Trials examined ten European Union countries and found that courts granted 100% of pre-trial detention requests from prosecutors in Lithuania, and in Hungary, Spain, and the Netherlands the rate was over 80%. In fact, only in a single jurisdiction—Ireland—was the approval rate under 50%.

In some countries detention rates are a matter of what Penal Reform International calls “penal populism,” in which the public wants (or at least politicians perceive that the public wants) the government to be tough on crime. A good example of this phenomenon is the Philippines (with a 63.1% pre-trial detention rate), where President Duterte has famously (or infamously, depending on one’s perspective) encouraged very aggressive police tactics against drug traffickers in particular. Such an environment can emerge all too easily; we have already seen the string of terrorist attacks in Europe over the past few years exacerbate the backlash in some quarters against North African and Middle Eastern refugees.

In some of the most egregious cases, defendants ultimately spend more time in pre-trial detention than they would have spent in prison if they received the maximum sentence for their alleged offense, and the United Nations has urged nations to release detainees once they reach that mark. Even in the U.S., however, where the Bureau of Justice Statistics has estimated that about $14 billion is spent annually on pre-trial detention, many detainees ultimately have their charges dropped.

There is no single or simple solution to the question of how to normalize rates of pre-trial detention around the world. In some cases, more judges and more dollars spent on the criminal justice system is the answer. In others, limitations on the practice and more liberal bail standards would help. Modernizing case file systems and creating or improving legal aid systems would improve conditions in many developing countries. Until such reforms are introduced, however, the world will continue to leave too many individuals—many of them the poorest and most vulnerable—lingering in indefinite imprisonment.

Corrections.com author, Robert Winters, holds a Juris Doctorate degree and is a Professor with Kaplan University. He is also a member of the National Criminal Justice Association and serves as a Western Regional Representative, a member of the National Advisory Board and their National Elections Committee.

Other articles by Winters


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