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SHAW Reducing the Excessive Use of Pretrial Detention

SHAW Reducing the Excessive Use of Pretrial Detention

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Published by: Francisco Estrada on Dec 07, 2010
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Pretrial DetentionFOREWORD
Reducing the ExcessiveUse of Pretrial Detention
Mark Shaw
The broad international consensus favors reducing the use of pretrial detention and, whenever possible, encouraging theuse of alternative measures, such as release on bail or person-al recognizance. The aversion to pretrial detention is basedon a cornerstone of the international human rights regime:the presumption of innocence afforded to persons accusedof committing a crime.
International treaties and standardsrequire policymakers to limit the use of pretrial detention.According to the Universal Declaration of Human Rights,“everyone charged with a penal offense has the right to bepresumed innocent until proven guilty according to law in apublic trial at which he has had all the guarantees necessaryfor his defense.”International standards permit detention before trial undercertain limited circumstances only. Thus, the Eighth UnitedNations Congress on the Prevention of Crime and Treatmentof Offenders established the following principle:
Pre-trial detention may be ordered only if there are reasonablegrounds to believe that the persons concerned have been involvedin the commission of the alleged offenses and there is a danger of 
A publication of the Open Society Justice Initiative, Spring 2008
Mark Shaw
Grand Ambitions, Modest Scale4
Todd Foglesong 
The Scale and Consequences of Pretrial Detention around the World11
Martin Schönteich
Case Studies
Boomerang: Seeking to Reform 44Pretrial Detention Practices in Chile
Verónica Venegas and Luis Vial
Catalyst for Change: 57The Effect of Prison Visitson Pretrial Detention in India
R.K. Saxena
On the Front Lines: Insights from 70Malawi’s Paralegal Advisory Service
Clifford Msiska
Building and Sustaining Change: 86Pretrial Detention Reform in Nigeria
Anthony Nwapa
Ebb Tide: The Russian Reforms 103of 2001 and Their Reversal
Olga Schwartz
Frustrated Potential: The Short 121and Long Term Impact of PretrialServices in South Africa
Louise Ehlers
Pathway to Justice: 141Juvenile Detention Reformin the United States
D. Alan Henry
Studies in Reform: Pretrial 152Detention Investments inMexico, Ukraine, and Latvia
Benjamin Naimark-Rowse,Martin Schönteich,Mykola Sorochinsky, andDenise Tomasini-Joshi
Mixing Politics, Data, and 172Detention: Reflections onReform Efforts
Robert O. Varenik
In 2006, an estimated 7.4 million people aroundthe world were held in detention while awaitingtrial—a practice that violates international norms,wastes public resources, undermines the rule of law, and endangers public health. This issue of 
 Justice Initiatives
looks at the global over-relianceon pretrial detention and examines the challengesof reducing and reforming its use.
their absconding or committing furtherserious offenses, or a danger that thecourse of justice will be seriously inter-fered with if they are let free.
One of the major achievementsof the Eighth UN Congress wasthe adoption, by consensus, of theUN Standard Minimum Rules forNon-custodial Measures (the “TokyoRules”).
These stipulate that govern-ments should make every reasonableeffort to avoid pretrial detention.In particular, these rules provide thefollowing:
Pretrial detention shall be used asa means of last resort in criminalproceedings, with due regard for theinvestigation of the alleged offenseand for the protection of society andthe victim.
Alternatives to pretrial detentionshall be employed at as early a stageas possible. Pretrial detention shalllast no longer than necessary andshall be administered humanelyand with respect for the inherentdignity of human beings.
The offender shall have the rightto appeal to a judicial or othercompetent independent authorityin cases where pretrial detentionis employed.According to the United NationsHuman Rights Committee, detentionbefore trial should be used only whereit is lawful, reasonable, and necessary.Detention may be necessary “to pre-vent flight, interference with evidenceor the recurrence of crime,” or “wherethe person concerned constitutes aclear and serious threat to societywhich cannot be contained in anyother manner.”
It is important however to high-light that gaps exist between manystates’
de jure
de facto
compliancewith international standards in thisarea. Many states that continue theexcessive use of pretrial detentionhave enacted national legislationthat closely mirrors internationalpresumptions against its use andin favor of the use of alternative meas-ures. There is thus much work to bedone not only in reforming legalframeworks but in achieving effectiveimplementation of those laws alreadyin place.At any given moment, an estimatedthree million people worldwide arein pretrial detention. Pretrial detaineesare disproportionately likely to bepoor, unable to afford the services of a lawyer, and without the resources todeposit financial bail to facilitate theirrelease should this option be availableto them. When poor defendants aremore likely to be detained, it canno longer be said that the criminal jus-tice system is fair and equitable.Moreover, in some countries a signif i-cant number of pretrial detainees willeventually be acquitted of the chargesagainst them or released without
2Open Society
Pretrial Detention
Pretrial detainees are disproportionatelylikely to be poor, unable to afford theservices of a lawyer, and without theresources to deposit financial bail.
having stood trial. Others will beconvicted of minor crimes that do notcarry a prison sentence.Congested pretrial detention cen-ters are often chaotic, abusive, andunruly places where few inmates aregiven the supervision they require.Policies and practices resulting in theexcessive use of pretrial detentioncontribute to prison overcrowdingand, ultimately, to heightened expen-diture of scarce public resources forthe construction and operation of detention facilities. Moreover, as fur-ther described in this volume, in manycountries the excessive use of pretrialdetention has very real negative conse-quences for public health, family sta-bility, social cohesion, and the rule of law. Poor pretrial detention practicesnot in compliance with internationalstandards consequently endanger per-sons and communities far removedfrom those actually detained.This edition of 
 Justice Initiatives
contains accounts of how a numberof countries from across the globe,with varying levels of economic devel-opment and a variety of criminal jus-tice systems, have sought to reformpretrial detention practices in ofteninnovative ways. With varying degreesof success each of these countriesdeveloped unique interventions toreduce the excessive use of pretrialdetention. It is essential readingfor criminal justice policymakers andpractitioners, particularly those work-ing in developing countries who areseeking to reform their justice systems.This volume will contribute todeveloping and sharing new experien-tial knowledge about the reform of pretrial detention around the world.By focusing attention on the emergingroutines of reform—that is, the self-conscious habits, methods, and tech-niques being used to detect problemsand introduce solutions—the articlesthat follow permit us to understandbetter which reforms have workedand which have not, and why. Thisbook should be a significant resourcefor criminal justice policymakers andreformers and should play an impor-tant role in initiating an internationaldebate on developing rights-basedsolutions to the excessive andinequitable use of pretrial detention.
3Justice Initiative
Mark Shaw is the inter-regional advisor, Human Security Branch of the United NationsOffice on Drugs and Crime.1.
Universal Declaration of Human Rights
, Article 11(1) (New York: United Nations, GeneralAssembly, Resolution 217A[III], December 10, 1948).2.
Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders
,Havana, August 27 –September 7, 1990.3.
United Nations Standard Minimum Rules for Non-custodial Measures
(The Tokyo Rules),Rule 6, adopted by the General Assembly December 14, 1990.4.
Human Rights and Pre-Trial Detention. A Handbook of International Standards relating toPre-Trial Detention
, Professional Training Series No. 3 (New York: United Nations, 1994), 14–15.

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