Pre-trial detention
Because imprisonment without trial is contrary to the presumption of innocence, pretrial detention in liberal democracies is usually subject to safeguards and restrictions.
[2][3] A 2021 review of existing research found that "the current pretrial system [in the US] imposes substantial short- and long-term economic harms on detained defendants in terms of lost earnings and government assistance, while providing little in the way of decreased criminal activity for the public interest... the costs of cash bail and pretrial detention are disproportionately borne by Black and Hispanic individuals, giving rise to large and unfair racial differences in cash bail and detention that cannot be explained by underlying differences in pretrial misconduct risk.
Under the regulations, criminal suspects and defendants may apply to the procuratorial organ for a review of the necessity of detention.
If the procuratorial organ considers that detention is unnecessary after the review, it will recommend that the case-handling agency release the suspect or change its compulsory measures.
[17] If the investigation cannot be terminated after the expiration of the preceding article, it may be extended for two months with the approval or decision of the People’s Procuratorate of the province, autonomous region, or municipality directly under the Central Government.
When the case is transferred from the public security organ to the procuratorate and the court, the procedure of "changing custody" must be carried out in accordance with the law.
In the Republic of Ireland, a person brought before the District Court and charged may be either released on bail or held on remand (Irish: athchur) while awaiting trial.
Peter McVerry noting that remand was almost always used if the defendant was homeless or severely mentally ill.[29][30][31] In the United States, a person is protected by the federal Constitution from being held in prison unlawfully.
The U.S. Constitution states that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it".
No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; ... nor be deprived of life, liberty, or property, without due process of law The Sixth Amendment requires criminal defendants to be "informed of the nature and cause of the accusation".
The U.S. Bill of Rights thus grants some protection against being held without criminal charge, subject to the courts' interpretation of what due process means.
Involuntary commitment of the mentally ill is another category of detention without criminal prosecution, but the right of habeas corpus still applies.
[citation needed] In Swedish law, häktning is a pre-trial supervision measure, where a suspect can be jailed for crimes that have a prison term of at least one year.
The Committee for the Prevention of Torture of the Council of Europe has repeatedly criticised pre-trial detention in Sweden for the high percentage of cases where restrictions on communication are applied.
Often[citation needed] they are denied all visits and all newspaper and media access, for risk of interfering with the investigation, such as communicating a story with fellow remand prisoners.
Under Article 8 (5) of the Charter of Fundamental Rights and Basic Freedoms, which has the same legal standing as the Constitution, nobody shall be taken into custody except on the basis of a court decision, and for reasons and a detention period stipulated by the law.
An exception to the time limits above arises in cases of remand due to concern of (b) interfering with witnesses or similar frustration of proceedings, in which case the maximum pre-trial detention period may be only three months, except where the charged person has already been influencing witnesses or otherwise frustrating the proceedings.
[46] The court must review the reasons for the pre-trial custody every three months and decide either to continue it, or to release the charged person.
Some remand prisons have rooms intended for watching TV, gyms or chapels, but these are exceptional mainly due to overcrowding and lack of space.
[56] Studies of pretrial detention in the United States have found that it significantly increases the probability of conviction and the length of sentences, largely because individuals who would otherwise be acquitted in trial enter guilty pleas.
[2][3][57] Studies have found that pretrial detention also lowers the defendants' prospects in the labour market,[2] and contributes to poverty traps whereby individuals unable to pay bail end up accruing more debt.
[58] In most countries, the prosecution only need to prove that the charges are well-founded and that there is a sufficient threat that the defendant will commit another crime or undermine the judicial process.
[61] This coercive effect on downstream outcomes such as taking plea bargains has been empirically demonstrated to be especially strong for people held pretrial on low-level charges (i.e., misdemeanors).
[62] The Open Society Foundation report also concluded that some detainees face worse conditions than convicted prisoners; for example the suicide rate is three times higher worldwide.
[60] In the U.S., pretrial detention has been found to negatively affect local labor markets, especially in areas with high percentages of Black residents, suggesting racialized collateral impacts on employment.
[63] The July 2022 result of a New York Times examination of handwritten lists of names of Egyptian civilians imprisoned indefinitely in pre-trial detention exposed the mockery of the country’s legal limits.
The Egyptian judicial system has been criticized for falsely charging political opponents of Abdel Fattah el-Sisi for ‘terrorist links’.
