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Overview

All over the world, unconvicted prisoners form a large part of the prison population; in some countries they even outnumber sentenced prisoners. This is contrary to the fact that, from the fundamental right to liberty and the presumption of innocence, deprivation of liberty must only be applied when less severe mechanisms are insufficient to control the suspect and to guarantee his or her presence at trial. Generally, the principle of necessity or subsidiarity must be applied in a way that the suspect or accused may await the procedure in unrestricted liberty or, in justified cases, under specified conditions. The authorities may only detain a suspect if no noncustodial options are adequate to meet the established aims. The available alternatives to pretrial detention (conditional bail) and their use vary considerably throughout the world. They may take less invasive forms, such as release on recognizance with some obligations attached or reporting regularly to the authorities. But they also may take the form of curfew, electronically monitored curfew, or drug treatment. A problem that arises from the use of alternatives to pretrial detention are the potential for net-widening. Additionally, there may be a hidden agenda of punitive or coercive, and sometimes also rehabilitative or therapeutic, aims of alternative measures that go beyond the legitimate goals of ensuring that the suspect stands trial and does not continue offending. Further problems are the exclusion of foreigners or the poor from such alternatives. Other questions relate to the consequences of breach of conditions and how periods spent or efforts made under bail conditions may be credited in the sentencing decision.

Fundamentals On Pretrial Detention And Its Alternatives

Statistical Background

According to the World Pre-trial/Remand Imprisonment List (Walmsley 2008), two and a quarter million people were known to be held in pretrial detention and other forms of remand imprisonment throughout the world in 2008, and a further estimated 250,000 were held in countries on which such information was not available. At midyear 2010, about 460,000 persons were in pretrial detention in the USA (U.S. Bureau of Justice Statistics 2011b). In the 47 Member States of the Council of Europe, the number of remand detainees amounted to 370,000; 136,000 of them in the 27 Member States of the European Union (Council of Europe Annual Penal Statistics 2011, data for the year 2009). Globally, one out of every three detainees has not been found guilty of a crime (Open Society Justice Initiative 2011, on the Basis of the World Prison Population List, Walmsley 2007). In Europe, between 11 % (Poland, Germany) and almost 60 % (Turkey) of all prisoners are remand detainees (Morgenstern 2013). In the USA, the percentage was 28 % in 2010 (U.S. Bureau of Justice Statistics 2011a and 2011b), in Canada it was 37 % (Statistics Canada 2011, for 2009/2010). It is important to note that in countries heavily burdened with high prison population rates, remand imprisonment does not always contribute greatly to this burden. On the other hand, some countries seem to manage to contain their overall prison population but have a high number of remand detainees, so that their share is considerable. This is a problem not only for those affected but also for the prison authorities, who must deal with these “preliminary prisoners.” Some of the obvious differences are explained by different scopes and notions of remand detention (see below), but the data nevertheless show that, in many countries, the remand population impacts significantly on the overall prison population.

Statistical data on the use of alternatives to pretrial detention are often hard to obtain and even harder to compare. What can be seen, however, is that the use of precautionary measures during pretrial procedures varies greatly. In England and Wales, 9 % of all persons charged with an offense were remanded in custody in the year 2009. While it is not exactly known how many of the other 91 % were subject to bail conditions (“alternatives to pretrial detention” in the sense used here), research studies suggest that this was the case for over half of them (Hucklesby 2011; Hucklesby et al. 2007). In Ireland, bail is granted in about 25 % of all murder cases and 80 % or more in cases involving less serious offenses (Mellett 2012). In New Zealand, 13 % of all persons charged with an offense were remanded in custody and 87 % were remanded at large or on bail with or without conditions, most typically the latter (Young 2012, for the year 2008). In the USA, a study showed that, in the year 2004, more than 40 % of defendants who had state felony charges were detained in custody. Released defendants were most likely to be released on commercial surety or their own recognizance (Viano 2012). In Germany, in a sample of 1,000 recent convicts, 30–40 had been remanded in custody before. No statistics on alternatives exist, but studies suggest that, additionally, between four and ten of those 1,000 convicts had been under pretrial supervision in the community (depending, for example, on their age; Morgenstern 2009, with further references). In other states, remand detention still clearly outnumbers unconditional or conditional release. In China, for example, almost 80 % of all suspects were detained on remand, more than 16 % were released under supervision, and only 4 % were released without conditions (Zhang 2012).

Scope And Definition Of Pretrial Detention

“Pretrial” and “remand” detention are used synonymously here. It must be recognized, however, that depending on the criminal justice system, different scopes and definitions of remand detention and consequently of its alternatives exist. Remand detention may include pretrial detention in a strict sense (police custody and remand custody ordered by a judicial authority), trial pre-conviction detention, and trial post-conviction detention. The latter may include the period between conviction and sentence and detention during an appeal or cassation procedure (Morgenstern 2013). In all these stages, alternatives may apply.

As indicated above, remand detention primarily serves procedural purposes, that is, to prevent a suspect from absconding or from tampering with evidence. The justice system needs him or her to be present and at its disposal – the etymology of the word remand (from the Latin reand mandare, literally “order back”) points to this original meaning. For this period of custody, the term “pretrial” detention is also often used, but it is obvious that remand detention may last longer as it may extend beyond the beginning of the trial. The legal status of remand prisoners is shaped by two factors: the first has to do with criminal procedure (i.e., the need for certain precautionary measures), while the second relates to the presumption of innocence, which implies that an unconvicted person must be treated as such and may not be restricted in his or her rights and liberties any further than absolutely necessary. Additionally, it implies that a remand prisoner must be treated differently from a sentenced prisoner. This latter principle plays a central role in the theoretical underpinning of remand detention as well as of the criminal justice system as a whole. The role and scope of the presumption are not entirely clear, not within certain jurisdictions and even less in a comparative perspective. They vary from a mere rule for the burden of proof to an overarching principle to guarantee procedural rights of the suspect or accused (Ashworth and Redmayne 2010; Stuckenberg 1998, with further references). One difference relates to the period during which the presumption has an effect on those detained during a criminal process. In most European countries, persons are presumed innocent until there is the last and final sentence and, therefore, are (or should be) kept in institutions other than ordinary prisons. In others, however, namely in England and Wales (Morgan 1994), this is not (necessarily) the case. Here, the presumption of innocence expires with the conviction of first instance. From a European perspective, both concepts seem acceptable as the European Court of Human Rights (ECtHR) explicitly acknowledged that the English practice meets the criteria of Article 6 (2) and Article 5 (1) of the European Convention of Human Rights (ECHR; Monell and Morris v United Kingdom, application no. 9562/81 and 9818/82, judgment of 2 March 1987 and Wemhoff v. Germany, application no. 2122/ 64, judgment of June 27, 1968, Series A No. 7). These conceptual differences explain some of the above-mentioned disparities in the size and proportion of the remand prison population and also have implications for the understanding of alternatives.

Avoiding Pretrial Detention: Concepts And Forms Of Alternatives

The concepts and forms of avoiding remand detention are diverse and relate to different systems of imposing detention. Generally, however, judges all over the world find themselves in similar situations when they have to choose between three options for the suspect: The first option is unrestricted liberty (release on recognizance) and the sincere hope that the suspect will show up once the trial starts. The second is conditional bail or a similar concept with some safeguards put in place by imposing certain obligations on the suspect. The third option is remand custody. To avoid remand custody, two models may be distinguished. For example, the English (or other Common Law) along with the Polish and French practices can be described as choosing from a continuum – from no restrictions (unconditional bail) to more restrictions (conditional bail) to a full restriction of freedom (custody) (van Kalmthout et al. 2009a). The German model is different: the legal hurdle to order remand custody has to be taken (implying certain thresholds, excluding minor offences and a certain degree of risk of absconding or collusion). Only if this can be done may the judge choose less restrictions; that is, release the suspect or accused under certain conditions (conditional suspension of the arrest warrant). Here, noncustodial measures are meant solely as substitutes for detention and should be able to avoid net-widening effects. More often than not, however, they are merely used to shorten the term of remand custody and not as a substitute from the outset (Morgenstern 2009). Other examples for this substitution model are found in the Netherlands (van Kalmthout 2009) and Denmark (Rentzmann 2012).

Alternatives to pretrial detention may take various forms, usually with obligations imposed on the offender such as reporting to the police; depositing of passports or other identity papers; observing of orders relating to residence, work, spare time, association with certain persons; making oneself available for inquiries and reports; submitting to supervision (involving adherence to the instructions of the probation service); residing in a special hostel or other institution; undergoing psychiatric or addiction treatment; participating in a day training program; monetary bail; and curfew/house arrest with or without electronic monitoring (this is by no means an exhaustive list; examples are taken from country reports in van Kalmthout et al. (2009b) and van Kempen 2012). In these reports as well as in this essay, the concept of “bail” is frequently mentioned: it should be clarified that this term does not only cover property or money deposited or pledged to a court on the understanding that the suspect will return for trial or forfeit the bail. This sometimes is misunderstood when the word “bail” is translated (e.g., into the German word Kaution, caution in French or fianza in Spanish, which all exclusively refer to a financial surety). It rather must be understood in a much wider sense as a status in which the suspect is obliged to turn up before court or before the police (often with conditions attached to secure this aim). The measures listed above stand alone or are conditions of bail or of the suspension of detention that can be combined. An accumulation of several bail conditions may ultimately lead to severe restrictions of personal liberties with a serious risk of breach.

Further practical and ethical grounds exist for why unrestricted bail or alternative measures should be applied instead of remand custody. Usually, remand prisons are in far worse condition than ordinary prisons (Hucklesby 2002, for England/Wales; van Kalmthout and Knapen 2012, with reference to the work of the European Committee for the Prevention of Torture, CPT and examples from all over Europe; Maruna et al. 2012, with examples from the USA). They are often subject, far more than regular prisons, to overcrowding (France and other countries, van Kalmthout et al. 2009b) and they often are not able to provide any meaningful activities for the inmates, leaving them “languishing for weeks, possibly months, locked up in their cells” (European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 2010).

The Use Of (Conditional) Bail And Other Alternatives To Pretrial Detention

Grounds And Limitations

The legitimate aim of remand regulations, custodial or noncustodial, is securing the attendance of the defendant at the trial. Reasonable suspicion of the committal of an offense is an undisputed requirement. The traditional grounds to order pretrial detention that are applied all over the world are flight or risk of absconding, tampering with evidence, interfering with witnesses, or otherwise obstructing the course of justice (van Kalmthout et al. 2009a). Increasingly, however, preventive purposes play a role and are accepted as legitimate aims as well (Ashworth and Redmayne 2010, for England and Wales; Morgenstern 2009, for Germany; Maruna et al. 2012, for the USA). The latter is acknowledged also in the European Convention on Human Rights (ECHR) as long as the danger of re-offending is a concrete and palpable one. Art. 5 ECHR generally secures the right to liberty of everyone by restricting the grounds for detention: “[.. .]No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.” The normative justification of pretrial detention follows more specifically from Art. 5 (1) lit c ECHR, which allows “the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.”

This must be read in conjunction with Article 5 (3) of the Convention, which incorporates a number of essential guarantees in order to make deprivation of liberty an exception to the rule of liberty and to ensure that judicial supervision is in place. The European Court of Human Rights has, on several occasions, stated that pretrial detention shall be used only as a measure of last resort. This, on the one hand refers, to the shortest possible time spent in pretrial detention (e.g., Wemhoff v. Germany, application no. 2122/64, judgment of June 27, 1968, Series A No. 7) and, on the other hand, to the use of alternatives from the outset (e.g., Neumeister v. Austria, judgment of 27 June 1968, Series A No. 8; Jabłon´ ski v. Poland, application no. 33492/96, judgment of 12 December 2000; see also van Kalmthout et al. 2009b, with further references). Art. 9 of the International Covenant on Civil and Political Rights (ICCPR) equally protects the liberty of every person against arbitrary detention without, however, specifying legitimate grounds for pretrial detention. Art. 9 (3) ICCPR states, somewhat more weakly than the ECHR, that “[i]t shall not be general the rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should the occasion arise for execution of the judgment.” In addition to that guarantee of personal liberty, and as mentioned already above, it has to be taken into account that “[e]veryone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.’ (Art. 14 (2) ICCPR; Art. 6 (2) ECHR).”

Three consequences follow from these provisions with regard to alternatives to pretrial detention. Firstly, there is a presumption in favor of liberty, which must be interpreted as a right to bail, or more precisely a right to have bail considered in every individual case (see, for example, ECtHR, Caballero v. the United Kingdom, application no. 32819/96, judgment of 8 February 2000: The applicant was arrested for attempted rape and there had been a violation of Article 5 (3) ECHR because the court refused the applicant bail pursuant to a law that precluded – without exception – all persons charged with, or earlier convicted of, murder, manslaughter and rape from being granted bail. This prevented the courts from considering the particular circumstances of the case). This means, secondly, that pretrial supervision measures generally are restricted to the same aims and objectives as pretrial detention. Thirdly, the same human rights guarantees – safeguarding the right to liberty, the presumption of innocence, and the principle of minimum intervention – must be applied to supervision measures that, albeit less severely, restrict personal liberties and freedoms within the community. Equally, due process safeguards must be provided for, in particular the right to judicial review and a proportionate approach to breach of condition.

Further restrictions to impose pretrial detention and a larger scale of alternatives are provided in the area of juvenile justice (see Dunkel et al. 2011; in particular, the chapter of Dunkel, Dorenburg and Grzywa, 1747 ff), however, the practice does not always consider them sufficiently, partly because of a lack of resources in the juvenile welfare agencies at the community level.

Problems

Problems relating to the imposition and execution of pretrial detention are widely acknowledged. This is far less the case for its alternatives because they operate below what can be called a custody threshold and are, therefore (seemingly) less troublesome. First of all, practical problems relate to the availability of suitable and proportionate alternatives to supervise suspects in the community; either because of the lack of the necessary infrastructure and human resources (in particular, probation or other services able to supervise efficiently) or because legislation does not foresee enough noncustodial options (see country reports in van Kempen 2012, and the case studies in the volume compiled by the Open Society Justice Initiative 2008). Particular problems arise for suspects who are not citizens or residents of the state they are charged in. The risk to abscond is easily assumed and noncustodial options to supervise them are either not deemed sufficient or are not be applied for practical reasons such as language difficulties, imminent deportation, or the like (van Kalmthout et al. 2009a, with further references from the country reports in that volume).

Where a range of alternatives exist, it is often the neglect of human rights of a suspect, mentioned above, that may lead to serious problems. There are, for example, indications that bail conditions – unintended or intentionally – often serve coercive, therapeutic, or punitive purposes (Hucklesby 2011). The latter can be seen, for example, when judges, particularly for juveniles, want to start a meaningful program run by the probation service without losing time during the trial (Morgenstern 2009) or try to compensate for far-reaching possibilities to suspend prison sentences (Tange 2011). Whenever pretrial measures serve purposes other than securing the due course of justice, because they are designed as rehabilitative measures or therapy, it is important to note that they depend on the consent of the offender at that stage. Criminal Justice authorities may also intend a smooth move from unconvicted to convicted status for offenders supervised in the community that, even if well-meant, equally neglects that the person affected is still presumed innocent. Even if programs are intended to address social needs, negative impact can be seen when they do not have “a consistent exit strategy” (Hucklesby 2011, in an evaluation of the “Effective Bail Scheme” in England/Wales). First, these programs may ignore the fact that a significant number of those suspects involved are acquitted; here, social support instead of contact with the criminal justice system would be the only adequate way of assisting people. Second, even when they are not acquitted but receive another noncustodial sentence, they often may fall out of the scheme immediately, which then makes the support during the bail period meaningless.

Another issue connected to the use of alternatives to pretrial detention is their potential for net-widening. Although difficult to prove, some indications can be found for this matter. It is noteworthy that, in several of the countries that have very high rates of pretrial prisoners, for example, the USA and South Africa (van Kempen 2012; see also Morgenstern 2013, on different rates in Europe), alternatives – particularly conditional bail – are applied on a large scale, while they are hardly ever applied in other countries with moderate or low rates (e.g., Germany or Norway). In an illustrative country case study for Belgium, it is shown that the introduction of alternatives was not able to reduce the use of pretrial detention, albeit crime rates only increased to a very small degree. Instead, the number of conditionally suspended warrants now is almost as high as the number of arrest warrants (Jonckheere and Maes 2011). On the other hand, we find examples of countries that have a low rate of remand detainees making use of bail to a high degree (Ireland; see Mellett 2012), which shows that alternatives may be of great value when they are carefully monitored. This refers both to individual cases where it is particularly necessary to adapt the measure to the suspect and also to react adequately to breach of condition, and to the legal and practical provisions of a criminal justice system more generally.

Both aspects are equally important with regard to electronically monitored curfew as bail condition. Electronic monitoring in various forms of pretrial supervision is used in an increasing number of jurisdictions (e.g., Australia, the USA, New Zealand, England/Wales, Scotland, and Belgium) and tested in various others (e.g., Germany, France, and Portugal). It is generally acknowledged that it reduces the risk to public safety from offenders living in the community as it reduces the likelihood of individuals committing new offenses and acts as deterrence in relation to absconding from a curfew. On the other hand, electronic monitoring often is experienced as particularly intrusive and also impacts on other persons living in the same household and, therefore, may be regarded as disproportionate in many cases (Nellis et al. 2012).

A further unresolved question is how periods under conditional bail can be credited, particularly when electronic monitoring and other pretrial supervision measures are involved that significantly restrict the rights and liberties of the suspect. While at least in most European states periods spent in pretrial detention must be deducted from the prison sentence, usually a day for a day (van Kalmthout et al. 2009b), normally, no legal provisions exist for these periods under conditional bail. It is then left to the discretion of sentencing judges whether and how they are credited. This problem is aggravated by the fact that cases where suspects are supervised in the community procedures may take longer than in cases of pretrial detention because the courts feel less committed to ensure a speedy trial (Morgenstern 2009).

The risk of discriminating against foreigners has been mentioned above. Serious disadvantages for another major group of suspects can be seen where bail is mainly understood as providing financial surety (bail bonds). In the USA, where most states use a system of commercial bail bonding, many suspects cannot afford to post bail. This has been heavily criticized for several reasons, among them the far-reaching and insufficiently controlled power of the commercial bail bonding entities and their extended arms, the bounty hunters. Most prominently, however, it has been seen as clearly discriminating against the poor (see Maruna et al. 2012, for a recent account).

Future Developments

With relatively little attention paid by scholars, conditional bail and other pretrial supervision measures in some parts of the world have developed in a way that fits well with policy trends toward a harsh response to (alleged) criminals, a punitive turn and the “new penology” framework. Indicators are the accumulation of intrusive bail conditions, certain net-widening effects, privatization, and commercialization, often along with the neglect of the presumption of innocence and due process requirements (such as a review of the measure imposed, the monitoring of those implementing it, etc.). In other countries, however, both unconditional bail and pretrial supervision measures in the community obviously are widely used, having a beneficial impact on the remand practice and remand prison population.

In recent years, not only pretrial detention but also the aforementioned problems and the merits of its alternatives have increasingly aroused scholarly interest from a comparative perspective. Several volumes compiling case studies, thematic essays, and country reports (Open Justice Initiative 2008 and 2011; van Kalmthout et al. 2009b; van Kempen 2012) provide insight in current developments throughout the world. Nevertheless, sound criminological (empirical) research is still needed in many countries, for example, with regard to net-widening issues and more generally the decision-making process of the competent authorities, and also with regard to discriminatory effects and implementation practices.

In Europe, pretrial supervision more recently became a matter of discussion for pan-European criminal policy as the European Union adopted a Framework Decision in this regard. It seeks to avoid pretrial detention for EU citizens who are not resident in the state where they are charged with an offense (Council framework decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention, OJ L294/20). By applying the principle of mutual recognition of judicial decisions – the decision in this case being the order to supervise the suspect – they shall be able to return to their home under certain conditions instead of being detained in the state where they are prosecuted. Several issues are discussed regarding this Framework Decision, namely whether there is a real need for it and whether it will have net-widening effects. Doubts are particularly expressed as to whether it can really function in the face of diverse legal and practical provisions as well as different legal traditions and cultures in the EU Member States. Also, the Council of Europe (2006) adopted a recommendation that contains safeguards for the rights of pretrial detainees and also seeks to encourage the use of alternatives to pretrial detention (Morgenstern 2013). Follow-up is needed for both initiatives; whereas the recommendation by the Council of Europe is soft law, the Framework Decision must be implemented by the Member States of the EU. Pretrial supervision, therefore, will stay (at least for now) on the European agenda.

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