by  Liliana Sanchez

A prisoner is a person legally withheld of their freedom as a punishment for crimes or offenses committed, or as a preventative measure while they wait for trial. But did you know that in many countries of the Americas more than half of prisoners are behind bars without conviction? One would think that to be in prison the person needed to be found guilty first, but this is not what necessarily happens under the law. Some of the most striking percentages of prisoners without conviction are found in countries such as Bolivia (83.6%), Paraguay (71.2%), Haiti (67.7%), and Venezuela (66.2%).

The United States does not lag behind these high rates; instead, 70.03% of the incarcerated population is unconvicted under pretrial detention, an exceptional legal measure use to ensure that a person under investigation does not manipulate evidence or evade the judicial process.

Furthermore, pretrial detention allows for unconvicted detainees to remain in jail for a period that can legally extend up to three years, but in practice it extends for much longer. This not only goes against the presumption of innocence but also contributes to jail overpopulation. Moreover, the excessive use of pretrial detention reveals a judicial system which rewards the rich and punishes the poor. Pretrial detention should be used as an exceptional measure, as it was conceived by law, not as a punishment.

As a lawyer in Peru, I had the opportunity to attend more than 50 pretrial hearings. One of these hearings struck me: In the search of a drug dealer, three people were arrested after police officers entered a house looking for the suspect. The suspect’s mother (a fifty-year-old women), the person who was buying the drug (a woman in her forties), and a young woman (mother of a two-month-old baby), who claimed she was in the house asking for money from her old partner (the suspect) to feed her baby. All of them were sent into pretrial detention for an initial period of 6 months that could extend up to three years.

None of the women had labor ties or owned any properties, conditions, or elements that are demanded in countries of the Americas to avoid pretrial detention. Adding to this situation, they did not have enough money to pay the bail, so they had no choice but to face pretrial. The result is unknown until the end of their process, depending on if the sixty-year-old mother of the suspected drug dealer was involved with the case, or if the woman who was arrested also as a drug dealer was a drug user, or if the two-month-old baby’s mother was guilty.

What I know is that in the previous case and in most of other cases related to pretrial detainees, this measure when used as a punishment can result in decision bias since when the jury and judge know that the person was in pretrial detention, they are more inclined to find them guilty. It can also detrimentally affect the defendant’s families when their spouse, parent, or child is taken away for pretrial. In the previous case, the most affected party is the two-month old baby, who is left without his relatives and vital economic and emotional support. Ultimately, being in pretrial detention impedes released detainees from finding jobs and reintegrating into society because they end up with police and judicial records.

Another issue around pretrial detention is that bail is often the only way for people to attain an alternative measure, and the bail threshold can inflate drastically depending on the judge’s preference; for instance, in the U.S. a bail can go up to millions of dollars. This proves detrimental to poor people who end up in jail because they do not have the economic resources to pay their bail. It can also hamper the judicial process because those who have more economic power tend to manipulate the evidence.

In line with international standards on pretrial detention procedure, prosecutors and judges have several alternatives to pretrial detention, according to the risks and special needs that each detainee presents. For instance, judiciary actors can prevent evidence manipulation by choosing from the following alternatives: not engaging in any conduct related to the presumptive illicit action; requesting supervision by an agency appointed by the judicial authority; electronic monitoring; prohibiting the meeting of specified persons without authorization; and surrendering passports or other identification papers.
Pretrial detention exists in a system that favors the rich and punishes the poor. If we aim for significant improvements in countries of the America’s judiciary systems, we must to begin to not only examine how this measure was conceived, but also how it is unjustly used as a punishment rather than as an exception.

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