Student No.

1992-20018
Law 266
Prof Leo Battad

Pre-Trial Detention: Policy Issues and Recommendations

I. Introduction

“It is said that no one truly knows a nation until one has been inside its jails. A
nation should not be judged by how it treats its highest citizens, but its lowest
ones.”
― ​Nelson Mandela

Pretrial detention refers to detaining of an accused person in a criminal

case before the trial has taken place, either because of a failure to post bail or
due to denial of release under a pre-trial detention statute.1 A pre-trial
detainee is someone who, in connection with an alleged offence, has been
deprived of their liberty following a judicial or other legal process, but not yet
definitively sentenced2.

Pre-trial detention is used all over the world as part of the criminal
justice system. There are around three million pre-trial detainees worldwide.
Between 2000 and 2016, the total number of people in pre-trial imprisonment
increased by at least 15%. Some continents and individual countries saw far
larger increases than this in their pre-trial detainee populations during this
period.3This includes more than 467,000 in the United States, 282,000 in
India, 212,000 in Brazil, 108,000 in Russia, 92,000 in Mexico, 76,000 in the

1
Pre-trial Detention Law and Legal Definition,
https://definitions.uslegal.com/p/pre-trial-detention/​, accessed December 18, 2019
2
“Pre-trial Detention and Its Over Use, Evidence from Ten Countries”, Heard, Catherine and
Fair, Helen, Institute for Police Justice and Research, Birkbeck, University of London,
November 2019,
https://prisonstudies.org/sites/default/files/resources/downloads/pre-trial_detention_final.pdf​,
accessed December 20, 2019
3
World Pre-trial/Remand Imprisonment List (third edition), Walmsey, Roy, World Prison
Brief,Institute for Criminal Policy Research, Birkbeck, University of London, February 23,
2017,​https://www.prisonstudies.org/sites/default/files/resources/downloads/wptril_3rd_edition.
pdf​, accessed December 20, 2019

1
Philippines, 63,000 in Indonesia, 61,000 in Thailand, 56,000 in Iran, 55,000 in
Pakistan, 52,000 in Bangladesh, 45,000 in Nigeria and South Africa, 38,000 in
Colombia and Peru, 35,000 in Argentina, and 31,000 in Morocco and
Venezuela.4

Since about the year 2000 the number of people in pre-trial/remand

imprisonment has grown by around 15%.5 The growth of 15% since about
2000 in the total number of people in pre-trial/remand imprisonment is less
than the growth in the world’s general population since that time (20%).
However, the pre-trial/remand total in 2000 was elevated by the very large
number of genocide-related detainees in Rwanda which were mentioned
above. If the Rwanda figures are omitted, the number of people in
pre-trial/remand imprisonment has grown since about 2000 by almost 21%.6

Pre-trial detention in the Philippines

Source: World Prison Brief

https://theaseanpost.com/article/packed-prisons-philippines

4
Ibid., p.2
5
Ibid.
6
Ibid.

2
 Figures sourced from Birkbeck University of London and the Institute
for Criminal Policy Research showed that as of 2018, the Philippines is home
to 933 prisons with a total prison population of 188,278 wherein 75.1% are
pre-trial detainees7.

The increase in numbers in pre-trial detention detainees was attributed to the

anti-drug campaign launched in 2016 by the Duterte administration8. Said
increase listed the country as having one of the most overcrowded prisons
system as shown in the World Prisons Brief’s list.

Causes of Prolonged Pre-Trial Detention

The Institute for Crime and Justice Policy Research conducted a

research9 of 10 countries to analyse its different legal systems to understand
why is there an increase in pre-trial detention in recent years. The research
appears to divide the factors into three categories as to why their is an
overuse of pre-trial detention: 1) the inadequacies in the judicial system; 2)
the political and cultural context; and 3) the socio-economic factor and
disadvantages.

Under the criminal justice system, respondents to the survey state the
following factors that contribute to pre-trial injustice: 1) over-stretched,
under-resourced court systems; 2) inadequate legal aid provision; 3) lack (or

7
“Packed prisons in the Philippines”, Khidhir, Sheith, The Asean Post, January 13, 2019,
https://theaseanpost.com/article/packed-prisons-philippines​, a
​ ccessed December 21, 2019
8
“Where 518 Inmates Sleep in Space for 170, and Gangs Hold It Together”, Almendral,
Aurora, The New York Times, January 7, 2019,
https://www.nytimes.com/2019/01/07/world/asia/philippines-manila-jail-overcrowding.html​,
accessed December 21, 2019
9
“Pre-trial Detention and Its Over Use, Evidence from Ten Countries”, Heard, Catherine and
Fair, Helen, Institute for Police Justice and Research, Birkbeck, University of London,
November 2019,
https://prisonstudies.org/sites/default/files/resources/downloads/pre-trial_detention_final.pdf​,
accessed December 20, 2019

3
under-use of ) alternatives to remand or pre-trial detention; and 4)
competencies, ethics, and experience of judicial actors (judges, prosecutors,
police, and defenders).

1. Over-stretched and under-funded courts

This problem was cited by lawyers in several of the ten countries as a

direct cause of pre-trial injustice10. Courts with overwhelming dockets will tend
to gloss through the proceedings as each case is not given enough attention.
Judges would most likely err on the side of detention. In India, delay in
proceedings contributes significantly to pre-trial injustice as there are not
enough courts to handle the deluge of cases. One respondent stated that:
‘The lack of judges, lack of use of technology, lack of resources on the part of
the State, incompetent quality of lawyers, especially legal aid lawyers, are the
overreaching problems facing the system.’11

2. Inadequate legal aid provision

Cuts to legal aid budgets and underfunded or patchy provision of legal

aid were problems frequently raised by lawyers in interview and were linked
directly to the misuse of remand detention. Lawyers in several countries said
this exacerbated inequality in justice systems and contributed to the
over-representation of poor and marginalised people in prisons: or, as one
Brazilian lawyer called it, the ‘criminalisation of the poor’.12

In the jurisdictions subject of the research, several of the respondents

complain that legal aid allowances and funding are insufficient. These budget
cuts, they claimed, are factors in the occurrence of pre-trial injustice as it

10
Ibid., p.23
11
Ibid., p. 23
12
Ibid., p. 23

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reduces the eligibility of persons to government help. This leads to many of
the accused appearing in court without legal representation.

In the Philippines, the number of cases handled by the Public

Attorney’s Office (PAO) has increased from 850,298 in 2016 to 906,219 in
201713. With the fervent campaign of the current administration against illegal
drugs, these cases received the highest number of legal services rendered,
from 303,537 in 2016 to 397,089 in 201714. Yet despite the increase in
plaintilla and salaries, there is still not enough public defenders to help out
those languishing in jail during the trial of their cases.

3. Lack of ( or under-use of ) alternatives to detention

One of the key ways of limiting the use of pre-trial detention to cases
where it is genuinely necessary is the provision of other measures to
safeguard attendance at trial and compliance with court orders. Across the ten
countries, a variety of alternatives exist including money bail, personal bonds,
third party security or surety, regular reporting at police stations, surrendering
of passports, house arrest, geographical bans and electronic monitoring.
Lawyers in several of the ten countries said that too little use is made of
alternatives, other than money bail, which in some of the countries (sic) is
often the only alternative considered by courts despite many defendants being
unable to afford it.15

One feature common to several of the ten countries is that payment of

money bail remains the only real alternative to remand in custody commonly
used by courts. In a few of the ten jurisdictions money bail has never become

13
The Report of the Public Attorney’s Office 2018, Dr. Persida V. Rueda-Acosta, p.10,
https://www.laf.org.tw/ifla2018/upload/2018/11/(Update)National%20Report%203-3_The%20
Philippines_Dr.%20Persida%20V.%20Rueda-Acosta.​pdf, accessed December 21, 2019
14
Ibid.p.43
15
Pre-Trial Detention supra., p.24

5
an established, widely used alternative (Brazil, Hungary, Netherlands). In
England and Wales, the financial aspect of bail has to some extent fallen
away (as the use of electronic monitoring has steadily increased), although
high bail is still sometimes set for very serious offences. Lawyers frequently
complained that bail is set at unrealistically high levels. Several New York
lawyers complained that unaffordably high bail is frequently used ‘as a
method of persuasion’. One said that clients will ‘take a plea for things they
sometimes don’t want to take just to get out of jail.’ In the burglary vignette, he
said, ‘Paul’ would be treated as having committed a ‘violent felony’ even
though no personal violence was used. Bail would be set at a level to reflect
this, perhaps between $10,000 and $20,000. As a person with this history is
unlikely to have any chance of paying this, he would be remanded. Lawyers
and advocacy organisations have long sought to change the situation
whereby – as one lawyer we interviewed put it: ‘Only those who can afford to
pay bail can get out of jail. It’s a horrible system.’

In Thailand, a think-tank linked to the country’s Court of Justice has

estimated that about 66,000 people are unnecessarily incarcerated every year
because they do not have the means to post bail. Thai lawyers interviewed for
the study confirmed that most defendants have great difficulty in paying bail at
the levels prescribed for most offences, particularly those carrying sentences
of five years or more.

In the Philippines, under the Rule on Criminal Procedure, the bail

amount is supposedly set by the judge16. In reality, however, the Department
of Justice, through the Prosecutor’s Office, makes recommendations as to
how much the bail should be for different offenses. And out of exigency, the
judges just accepts the recommendation without any hearing. It is only when
there is a motion to reduce the amount of bail that the judge makes a
determination. Most of the times, the accused who are situated below the

16
Rule 14, Rule on Criminal Procedure, as amended

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poverty line, cannot afford the bail recommended by the prosecutor and
detained for prolonged periods of time for offenses that are bailable.

4. Competencies, ethics, and experience of judicial actors

The lack of courthouses, overwhelming case dockets, lack of support

staff, and lack of competent judicial actors affect the competencies and
capacities of judges and magistrates.

In the 10 countries subject of the research, judicial discretion was

considered a factor. While judges must comply with legal provisions, they
have a significant degree of discretion. They must decide how to weigh
information about the defendant’s circumstances and any offending history,
about the circumstances of the alleged offence and about a range of risk
factors that may arise in relation to these. Inevitably this is, in part, a
subjective process: the personal attitudes and views of judges will at some
level affect the way they exercise discretion, as too will the prevailing political
and cultural context.17 The judicial discretion is based on the extent of
experience, ethics, and practice of a judge. There are judges that are liberal
and others are conservative. The usually conservative and punitive judges are
those who prefer incarceration even during pre-trial.

Prosecutors and police also exercise some discretion as to the matter

of the period of detention of the accused. In some jurisdictions, prosecutors
can request for the extension of custody of the accused and recommend bail
amounts that are purposely set too high for the accused to afford.

Under ​the political and cultural context, several lawyers saw the
prevailing public discourse on crime and criminals as shaping pre-trial
decision-making and the way in which judges exercise discretion. Some

17
“Pre-Trial Detention” supre., p.26

7
linked this to populist or conservative political rhetoric and many spoke of
media pressure in specific cases or more broadly around specific patterns of
offending.18

A similar point was made by a Brazilian lawyer who said judges are
often tougher in pre-trial decisions if they believe releasing the defendant
could draw media attention or public pressure. He gave the example of a
judge who remanded a schoolboy charged with threatening another pupil with
a knife. There had recently been a school massacre in the same area. The
judge commented that he knew remand was ‘disproportionate’ in this case but
added ‘I can’t let him out or it’ll be in the press, so I’ll just have him detained
for a week’. The judge fixed a review hearing for seven days later.19

American and Brazilian lawyers complained of a lack of understanding

on the part of the general public about the purpose of pre-trial detention and
bail laws. A New York lawyer said ‘There’s a general social failure to
understand the purpose of bail’. A South African lawyer pointed to media
reports taking a position on high profile cases, ‘effectively saying “he’s guilty,
he shouldn’t get bail”, with no apparent understanding of the law’.20

In the Philippines, judges are also mindful of the public concern of

public safety. Many judges would rather err on the side of detention than put
at risk the public of any potential violator out on bail.

And under the socio-economic factor and disadvantages, it has long

been recognised that these are important drivers of criminal justice outcomes
– of levels of offending, numbers of arrests and prosecutions, reoffending
rates, and of the size and make-up of prison populations. Poverty, inequality,
unemployment, homelessness, substance use disorders and mental ill health

18
Ibid., p. 16
19
Ibid.
20
Ibid.

8
lie at the root of many criminal justice interventions. Underfunded public
services and economic downturns exacerbate these problems and have
knock-on effects on criminal justice systems (Heard, 2019)21.

A great majority of those incarcerated at the pre-trial stage are persons

who are classified as poor, unemployed or otherwise disadvantaged. The
offending history also of the accused contributes to the reasons why bail is set
higher than usual. However, in the Philippines, for bailable offenses, as long
as one can afford to pay, the offending history is not a factor at all.

II. Effect of Overuse of Pre-Trial Detention to the rights of persons and

the State

Article 9 of the International Convention on Civil and Political Rights

covers the right to liberty and security of person and freedom from arbitrary
detention. Under Article 9, anyone arrested or detained on a criminal charge
must be promptly brought before a judge or other judicial authority and shall
have the right to a fair trial within a reasonable time or to release. Pre-trial
detention is not the general rule and release may be subject to guarantees to
comply with court orders and appear during trial. Article 4 of the IPCCR
provides that countries may take measures derogating from some obligations,
including the rights under Article 9 to the extent as may be required by the
exigencies of the situation. However, such measures should not infringe on
other rights under international law and are not indiscriminate as to race,
color, sex, language, religion or social status. Prolonged pre-trial detention
may infringe the rights under Article 9. It may be considered arbitrary if the
pre-trial detention is long, sometimes lasting years, due to inefficient and
overloaded court dockets. It becomes harder for a detainee to find the
evidence necessary to obtain release compared to less restrictive measures
such as house arrest or electronic monitoring.

21
Ibid.

9
 Prolonged pre-trial detention may also infringed the right to freedom
from torture, mistreatment, and inhumane conditions. In many countries,
people in pre-trial detention are held in overcrowded, cramped and unsanitary
conditions, at risk of mistreatment and violence22.

Photo by Miguel de Guzman

https://www.philstar.com/headlines/2019/06/11/1925526/jail-congestion-drops-439-2018-but

In the Philippines, jail congestion is still a major issue in prison

management and rehabilitation. The Commission of Audit had called out the
Bureau of Jail and Penology (BJMP) for non-compliance with the UN
standards for the treatment of prisoners. ​“Congestion in jails lead not only to
health and sanitation problems but also to increased gang affiliation of
inmates. To sustain survival, inmates hold on to gangs or pangkat where they
find protection, network of social support and most important (sic), access to
material benefits. These situations are prevalent in highly congested facilities,”

22
Ibid.,p. 7

10
the COA said23. “Based on the audit body’s figures, the total jail population
has reached 136,314 as of Dec. 31, 2018. The figure exceeded the total ideal
capacity of 25,268 and resulted in a variance of 111,046 inmates or
equivalent to 439.48 percent of “congestion, overcrowding or clogging.”24 The
COA said the continued overcrowding in the district, city, municipal and
extension jails as well as female dormitories violates the BJMP’s “Manual on
Habitat, Water, Sanitation and Kitchen in Jails” and the UN’s “Minimum
Standard Rules for the Treatment of Prisoners.”25

Prolonged pre-trial detention undermines the right to a fair trial and the
presumption of innocence26. It is hard for the accused to prepare his defense
while in detention. The access to legal services is subject to the availability of
public defenders, most of the time. As such, there is great pressure to the
detainee to accept plea deals in exchange for release on bail or the dropping
of the more serious charges. This leads to an increase in wrongful
convictions---agreeing to plead guilty to a lesser offense not because there is
a real admission of guilt but due to the other factors connected to prolonged
pre-trial detention.

Unnecessary pre-trial detention also disrupts the detainee’s private life,

family and work life27. The time spent in jail, even for short periods, has
long-term consequences in the lives of detainees. The inability to earn
income, especially if the detainee is the sole breadwinner of the family, affects
the immediate family’s needs and survival. A period of time on remand can
make it harder to gain legitimate employment after release, even if the
defendant is acquitted. Without a job and perhaps also having lost their home

23
“Jail congestion drops 439% in 2018, but….”, Marcelo, Elizabeth, The Philippine Star
online,
https://www.philstar.com/headlines/2019/06/11/1925526/jail-congestion-drops-439-2018-but​,
accessed December 21, 2019
24
Ibid.
25
Ibid.
26
See Article 14, ICCPR
27
See Article 17, ICCPR

11
and links with family, people who have been in prison may feel they have less
to lose from engaging in crime after release and few alternatives open to
them. Remand prisoners usually have no access to work and rehabilitation
programmes, education or training. Time in prison disrupts progress
individuals could be making in the community to tackle the root causes of their
offending, such as substance use problems or mental illness.28

Congested prisons are further aggravated by the overuse of pre-trial

detention. It puts additional pressure on staff time, space and other resources.
This also leads to a reduction of resources allocated for the safe and decent
care of inmates. Prison overcrowding not only harms the health and
rehabilitation prospects of prisoners; it also carries grave risks for public
health and safety29. Overcrowding now affects the prison systems of 60% of
countries worldwide – and all the countries in our study except one, the
Netherlands. In 2016 the United Nations Secretary Secretary-General
identified the excessive use of pre-trial detention as one of the major causes
of prison overcrowding (UN Secretary-General, 2016)30.

Pre-trial custody of people to ensure their attendance in court also

exerts more costs compared to non-detention alternatives. The main direct
cost is that of imprisonment itself, which is considerably higher than the
alternatives, even in countries where prison systems are inadequately funded.
In England and Wales, for example, a prison place costs around £90 per day;
electronic monitoring costs around £13 (House of Commons Committee of
Public Accounts, 2018)31. The budget allocated and spent on incarceration
could have been diverted to other public services that has been shown to
have a correlation to its being underfunded and the increase in crime rates.
The unnecessary use of pre-trial imprisonment can also be seen as an

28
Pre-Trial Detention and its Overuse supra, p.8
29
Pre-trial Detention and its Overuse, supra, p. 8
30
Ibid.
31
Ibid.

12
opportunity cost in terms of funds that could have been spent on crime
prevention.32 Other indirect costs include the increase in the propensity of the
detainees to commit future crimes due to associations with gangs or groups
inside the detention facility that they feel indebted to while being detained for
a prolonged period of time.

Other effects include the deterioration of a detainee’s mental health,

higher risk of spread of infectious diseases not only inside detention facilities
but also to the communities once they regain their liberty or spread by visitors
coming from overcrowded prisons.
.
III Recommendations

As recommendations, the research stated the following:

a) Ensure that the law on pre-trial detention fully reflects international

standards, is clear, and does not contain conflicting provisions.
b) Rule out use of pre-trial detention where there is no likelihood of a
custodial sentence if the defendant is convicted.
c) Limit the overall time that a person can be detained pre-trial.
d) Require judges, when imposing or extending pre-trial detention, to
provide concrete, case-specific reasons for their decision in writing.
e) Mandate consideration of alternatives to pre-trial detention.
f) If money bail is used, require that it is set with proper regard to the
defendant’s means.
g) Require the prosecution to disclose to the defence the case file or
the principal evidence on which the charges are based, prior to the first
pre-trial detention hearing.
h) Ensure that time spent in pre-trial detention is always deducted from
any custodial sentence.

32
Ibid.

13
 i) Avoid introduction of laws and policies likely to increase the misuse
of pre-trial imprisonment.

Policy recommendations for the Philippines

For the Philippines, the decongestion of jails involves all the judicial
actors. The lack of judges and court houses should be addressed by the
Supreme Court and Congress. The local government units must also be
involved and there must be a policy clarification as to the provision of
infrastructure for the courts. The lack of infrastructure and competent
personnel are challenges that affect the quality of the judicial processes. The
creation of courts and provisions for its housing and plaintilla should be
programmed pragmatically to be responsive not only to address the current
increase in dockets but to also factor in the impact of urbanization in some
jurisdictions and its relation to case loads.

The Supreme Court should also look into the possibility of rationalizing
the bail system. At present, there is no specific schedule of bail amounts for
the different offenses except those set by the Department of Justice. These
amounts, however, are recommendatory. A schedule of bail amounts set by
the Supreme Court would be helpful in setting bail for the accused, without
necessarily going through a bail hearing. Further, since the pieces of evidence
and the testimonies rendered during the bail hearings may be adopted as part
of the evidence-in-chief, it is recommended that the bail hearing judge be
different from the judge hearing the case on the merits. This is to minimize
pre-judgment. Further, Section 15 of Rule 114 should be preferred in
application for offenses with penalties of imprisonment of four years and
below. Release of recognizance, either of self or in the custody of another,
should be the general rule for these kinds of offenses, in order to minimize
pre-trial detention even at the first level court cases.

14
 Another alternative to the bail hearing process, is to allow bail
immediately after inquest proceedings. The process will allow the accused or
respondent to post bail at a minimum amount pending the determination of
charges in court. This can be filed with the Office of the Clerk of Court,
following and administrative application and approved by the Executive
Judge. Once the appropriate charge has been filed in court, the initial bail
bond may be applied to the amount set by the trial court, subject to any
increase or decrease thereof.

There are also alternatives to pre-trial detention, one of which is

electronic monitoring. Electronic monitoring is a form of digital incarceration,
often in the form of a wrist bracelet or ankle “shackle” that can monitor a
subject’s location, and sometimes also their blood alcohol level or breath.33
Monitors are commonly used as a condition of pretrial release, or
post-conviction supervision, like probation or parole. They are sometimes
used as a mechanism for reducing jail and prison populations. Electronic
monitoring has also been used to track juveniles, immigrants awaiting legal
proceedings, adults in drug rehabilitation programs, and individuals accused
or convicted of DUIs or domestic violence. With appropriate budget for
personnel and equipment, this can be used for accused or respondents that
are considered low-risked. Simultaneous to this alternative is the creation of a
system to determine the level of risk of an accused. Once the level of risk has
been assessed or determined, the appropriate recommendation for bail or
non-jail alternatives to a pre-trial detention will apply.

Lastly, the appropriate funding for jail facilities should be made to

correct the present situation while waiting for the enactment of policy
recommendations.

33
Electronic Monitoring, Electronic Frontier Foundation
https://www.eff.org/pages/electronic-monitoring

15