This module is a resource for lecturers
Topic three - Pretrial alternatives
The overuse of imprisonment and its detrimental impact on criminal justice systems, individuals and societies, has led some countries to implement alternative policies at the very early stages of the criminal justice process. Tackling the overuse of imprisonment demands a commitment to alternatives to imprisonment prior to the sentencing stage. This part of the Module will consider the use of decriminalization and diversion strategies to avoid entry into the criminal justice process, as well as considering the importance of alternatives to pretrial detention.
"Legalization" means that conduct previously considered as unlawful becomes lawful and may be subject to legal regulation.
"Decriminalization" means that certain conduct is no longer considered a crime but may still be subject to other types of sanctions (e.g. administrative).
When addressing the issue of the overuse of imprisonment, a key question is whether particular types of behaviour should be classified as criminal? Decriminalization is "the process of changing the law so that conduct that has been defined as a crime is no longer a criminal act" (UNODC, 2007, p. 13). As noted in the United Nations Special Rapporteur's 2018 report on the right to health, punitive legal frameworks criminalize certain behaviours, identities or status, such as sex work, sexual orientation, gender identity, drug use, HIV status, abortion and vagrancy, often driving individuals with significant health challenges away from community health care and into prison (UNHRC, 2018, para. 19b). The report states that:
The dominance of detention and confinement as a response to issues of public safety and public health has led to a monopolization of resources that should be redistributed to support the progressive development of robust health-care systems, safe and supportive schools, programmes to support healthy relationships, access to development opportunities and an environment free from violence (UNHRC, 2018, para. 19c).
Over recent decades, several countries have taken steps to decriminalize certain behaviours. For example, vagrancy and public disorder have been decriminalized across many jurisdictions to significantly reduce imprisonment rates of those living in marginalized situations. The Philippines, for example, adopted a law decriminalizing vagrancy in 2012 (see The LawPhil project, 2012). In similar vein, Finland reduced the prison population significantly by decriminalizing public drunkenness (see De Vos et al., 2014). Some countries, including Norway and Portugal, have taken significant steps towards decriminalizing drug use and possession, transferring responsibility for drug policy from the justice system to the health system to focus on treatment rather than punishment.
Certain states have decriminalized abortion in recent years so that all criminal sanctions have been removed from the law, and all women have the right to a safe abortion (see for example: Smee, 2018; Berer, 2017). Furthermore, international organizations such as the World Health Organization ( WHO), the Joint United Nations Programme on HIV and AIDS ( UNAIDS), the United Nations Population Fund ( UNFPA) and the Global Network of Sex Work Projects ( NSWP) have called on states to decriminalize sex work as part of a global effort to prevent and treat HIV and other sexually transmitted infections, and to ensure sex workers' access to health care services (see WHO, 2012). While sex work remains a topic of debate in many countries, it was decriminalized in New Zealand in 2003 under the Prostitution Reform Act, which "not only removed legislation that criminalized sex work but also afforded new rights to sex workers" (Armstrong, 2017).
Diversion includes any strategy that seeks to prevent the formal processing of an offender by the criminal justice system. Underpinning diversion strategies is an understanding that a criminal conviction "triggers a cascade of collateral consequences" that often impinge on individuals becoming productive members of society (Center for Health and Justice, 2013, p. 8). A criminal record often excludes an individual from accessing education, housing or employment services, and precipitates additional criminal justice involvement. Researchers have argued that compared to imprisonment, effective diversion programmes that focus on addressing the causes of crime offer a cost-saving and positive tool that can improve community safety and reduce recidivism (Center for Health and Justice, 2013, p. 8)
Many states have recognized that low-level offences should not necessarily trigger criminal proceedings, and that support and intervention, rather than punishment, can often reduce further conflict with the law (for information on Germany and the Netherlands see: Vera Institute for Justice, 2013). Diversion strategies can include a range of initiatives, but most typically result in the person who has been accused of a crime being dealt with by a reprimand or a warning, or directed towards a treatment, educational or reparative intervention as an alternative to criminal prosecution. In some states, accused persons may be given the option of paying a fiscal fine, or paying compensation to the victim to divert offenders away from prosecution and the formal court process (Vera Institute for Justice, 2013 and Croall et al., 2012). The successful completion of a diversion initiative usually means that any criminal charges will be dismissed or reduced, whereas failure to comply may restore or potentially intensify the original sanction.
Police and prosecutors play a crucial role in the use of diversion strategies. They often act as 'gatekeepers' to the criminal justice system if they choose to issue a caution or to fine, or to refer individuals to an intervention rather than to prosecute them. Police discretion regarding diversion must be applied on a lawful, transparent and principled basis. Police officers need clear guidance on when they can issue warnings and take no further action, when they can divert offenders to interventions or treatment programmes and when they must refer offences to prosecutors (UNODC, 2007). For further information on the importance of police transparency and accountability, see Module 5 in the E4J University Module Series on Crime Prevention and Criminal Justice.
The availability of restorative justice interventions can also play a pivotal role in decisions about diversion, prior to the opening of a criminal proceeding. Incorporating victim-offender mediation and other restorative strategies that involve meetings with offenders, victims and community members to resolve matters that would otherwise be dealt with by the courts, "has the potential to divert cases that might otherwise have resulted in imprisonment both before trial and after conviction" (UNODC, 2007, p. 15; see also UNODC, 2006b).
Alternatives to pretrial detention
The World Prison Brief reported in 2017 that, "more than two and a half million people are held in penal institutions throughout the world as pretrial detainees/remand prisoners" (Walmsley, 2017a, p. 2) and that this number has grown by 15 per cent since around 2000, although there are considerable differences between regions and countries.
Penal experts, human rights activists and international standards make it clear that alternatives to detention during the early stages of criminal proceedings should be considered first. Indeed, there is a broad international consensus that favours reducing the use of pretrial detention and, whenever possible, encouraging the use of alternative measures. The Commentary on The Tokyo Rules emphasizes that the use of pretrial detention "should be used sparingly whenever possible" (1993, p. 8). Rule 6.2 of The Tokyo Rules (1990) states that "alternatives to pretrial detention shall be employed at as early a stage as possible." At a regional level, the Council of Europe (1999, para. 12) provides that, "the widest possible use should be made of alternatives to pretrial detention, such as the requirement of the suspected offender to reside at a specified address, a restriction on leaving or entering a specified place without authorisation, the provision of bail or supervision." Principle III of the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, approved by the Inter-American Commission on Human Rights, emphasizes the "exceptional use of preventive deprivation of liberty" and the importance of "alternative or substitute measures for deprivation of liberty" (2008, p. 157). In a 2017 report, however, the Inter-American Commission on Human Rights (2017a, p. 11) highlighted the "arbitrary and illegal application of pretrial detention" as a "chronic problem in the region." It calls on states to adopt "specific measures that seek to reduce the use of pretrial detention in keeping with the relevant international standards" (Inter-American Commission on Human Rights, 2017a, p. 12).
The overriding objection to pretrial detention is based on a consensus that the presumption of innocence should lead to a presumption in favour of liberty, and that pretrial detention should be the exception and not the norm. Yet, as highlighted in 2018 by Penal Reform International: "Pretrial detention is one of the main causes of over-incarceration and overcrowding and it remains an enormous challenge for prison systems. Around 30 per cent of prison populations have not been convicted" (2018, p. 11).
Article 10(2)(a) of the International Covenant on Civil and Political Rights (GA Resolution 2200A (XXI)) clearly recognizes the special status of individuals held in pretrial detention. It states that: "Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons". However, while legally presumed innocent, pretrial detainees are often held in conditions worse than those for convicted prisoners, and sometimes for years on end. The United Nations Subcommittee on Prevention of Torture (2011, para. 158) has stated that: "Long periods of pretrial custody contribute to overcrowding in prisons, exacerbating the existing problems as regards conditions and relations between detainees and staff; they also add to the burden on the courts". Furthermore, pretrial detainees who are often already socially and economically disadvantaged, lose access to family, communities, education, employment and drug treatment because of pretrial incarceration.
The justifications for the imposition of pretrial detention or alternatives thereto are different from the rationales justifying punishment outlined in Topic Two. Ensuring that pretrial detention is used as a means of last resort requires adherence to clear rules on the permissible reasons for ordering detention of those presumed innocent. Rule 6.1 of The Tokyo Rules (1990) states that, judges need to consider "the investigation of the alleged offence and the protection of society and the victim", but the mere fact of being suspected of committing an offence is not sufficient. Relevant regional instruments and human rights jurisprudence indicate that to justify detaining an individual pending trial, there must be:
- "reasonable suspicion that the individual has committed an offence that is punishable by imprisonment, and
- a genuine public interest which, notwithstanding the presumption of innocence, outweighs the right to personal liberty, and
- substantial reasons for believing that, if released, the individual would:
- commit a serious offence,
- interfere with the investigation or the course of justice, or
- pose a serious threat to public order, and
- there is no possibility that alternative measures would address these concerns" (Amnesty International, 2016, p. 61).
Reducing and avoiding pretrial detention also requires implementing measures or providing options that allow the accused to remain in the community. Both The Tokyo Rules and the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders ( The Bangkok Rules) (2010) encourage criminal justice systems to provide a wide range of non-custodial measures and conditions to avoid the unnecessary use of pretrial detention. The conditions should include one or more of the following:
- "to appear in court on a specified day;
- not to:
- engage in particular conduct,
- leave or enter specified places or districts, or
- meet specified persons;
- to remain at a specific address;
- to report on a daily or periodic basis to a court, the police or other authority;
- to surrender passports or other identification papers;
- to accept supervision by an agency appointed by the court;
- to submit to electronic monitoring; or
- to provide or secure financial or other forms of security as to attendance at trial or conduct pending trial. The alternative that is most commonly used is bail" (UNODC, 2006c, p. 8, emphasis in original).
One of the main challenges in facilitating these measures is to ensure that a fully functioning and sufficiently funded system exists to manage, implement and monitor alternative measures to pretrial detention. Mechanisms should be in place to assure compliance with the conditions set, and to help reassure and protect victims of crime. The effective implementation of alternatives to pretrial detention requires that a range of financial, logistical and technological measures be in place. For example, direct supervision requires an entity that can conduct such supervision, electronic monitoring requires a considerable investment in technology and the infrastructure to support it (UNODC, 2007).