Pre-trial detention
Pre-trial detention, also known as jail, preventive detention, provisional detention, or remand, is the process of detaining a person until their trial after they have been arrested and charged with an offence. A person who is on remand is held in a prison or detention centre or held under house arrest. Varying terminology is used, but "remand" is generally used in common law jurisdictions and "preventive detention" elsewhere. However, in the United States, "remand" is rare except in official documents and "jail" is instead the main terminology.[1] Detention before charge is commonly referred to as custody and continued detention after conviction is referred to as imprisonment.
Not to be confused with Remand (court procedure).
Because imprisonment without trial is contrary to the presumption of innocence, pretrial detention in liberal democracies is usually subject to safeguards and restrictions. Typically, a suspect will be remanded only if it is likely that they could commit a serious crime, interfere with the investigation, or fail to come to the trial. In the majority of court cases, the suspect will not be in detention while awaiting trial, often with restrictions such as bail.
Research on pre-trial detention in the United States has found that pre-trial detention increases the likelihood of convictions, primarily because individuals who would otherwise be acquitted or have their charges dropped enter guilty pleas.[2][3] A 2021 review of existing research found that "the current pretrial system [in the US] imposes substantial short- and long-term economic harms on detained defendants in terms of lost earnings and government assistance, while providing little in the way of decreased criminal activity for the public interest... the costs of cash bail and pretrial detention are disproportionately borne by Black and Hispanic individuals, giving rise to large and unfair racial differences in cash bail and detention that cannot be explained by underlying differences in pretrial misconduct risk."[4]
Impact[edit]
Studies of pretrial detention in the United States have found that it significantly increases the probability of conviction and the length of sentences, largely because individuals who would otherwise be acquitted in trial enter guilty pleas.[2][3][57] Studies have found that pretrial detention also lowers the defendants' prospects in the labour market,[2] and contributes to poverty traps whereby individuals unable to pay bail end up accruing more debt.[3] A 2017 study, using data from New York City, found that pretrial detention increases the likelihood of recidivism.[57]
Criticisms[edit]
Pre-trial detention has been described as a "necessary evil".[58] A 2013 report by the Centre for Crime and Justice Studies concluded that pre-trial detention was being overused worldwide, and that most were being held for minor crimes.[59] A 2014 report by the Open Society Foundations called it a "massive and widely ignored pattern of human rights abuse".[60]
A person must be found guilty "beyond reasonable doubt" in order to be convicted at a trial. However, pre-trial detention requires a lower threshold such as "reasonable suspicion".[58] In most countries, the prosecution only need to prove that the charges are well-founded and that there is a sufficient threat that the defendant will commit another crime or undermine the judicial process. In the United States, the system of money bail means that a defendant can be detained even if neither of these threats can be identified, solely because nobody was willing or able to deposit the bail money for them.
In the Harvard Law Review, Stephanie Bibas also noted its impact on plea bargaining. Pretrial detention alters a defendant's incentives by making their best-case scenario not zero days in jail, but the length of time served pretrial. Therefore, a defendant may be more likely to plead guilty if the chance of acquittal is low, or if the expected sentence on a guilty plea is less than the amount of jail time that would be served pretrial. Pretrial detainees may also find it harder to mount an effective defence.[61] This coercive effect on downstream outcomes such as taking plea bargains has been empirically demonstrated to be especially strong for people held pretrial on low-level charges (i.e., misdemeanors).[62]
The Open Society Foundation report also concluded that some detainees face worse conditions than convicted prisoners; for example the suicide rate is three times higher worldwide.[60]
In the U.S., pretrial detention has been found to negatively affect local labor markets, especially in areas with high percentages of Black residents, suggesting racialized collateral impacts on employment. [63]
The July 2022 result of a New York Times examination of handwritten lists of names of Egyptian civilians imprisoned indefinitely in pre-trial detention exposed the mockery of the country’s legal limits. There have been no public records of the number of detainees held in pre-trial detention, but according to the Times analysis, more than 4,500 people were held under such system of pre-trial detention, some even for more than six months. The Egyptian judicial system has been criticized for falsely charging political opponents of Abdel Fattah el-Sisi for ‘terrorist links’. Often no formal complaint is filed or evidence is presented, preventing detainees from legally fighting in their defense before getting locked up. Meanwhile, human rights groups estimate that at least 60,000 political prisoners have been detained in Egypt, including pretrial detainees and those tried and sentenced for suspicion of having terror links or intolerable political points of view.[64]