Millions of people languish in miserable conditions in prisons across Latin America, awaiting trial.

Each year, millions of people across the world find themselves in jail without being convicted of anything—often for months at a time—as they await trial. Alarmingly, although the rights to liberty, security and equal justice under the law are cornerstones of justice systems throughout the Americas, pretrial detention is being employed at rates two to five times greater than the international average, and its use continues to grow unabated.

The impact of this unfair, harmful and inhumane practice spreads beyond the detainee to families, communities and government itself.

Pretrial detention serves an important purpose in the judicial process, but in practice its excessive and arbitrary use traps innocent people in a legal limbo, stretching the capacity of already-overcrowded prisons and undermining respect for the criminal justice system.

Differing legal definitions complicate efforts to measure and compare pretrial detention practices across national jurisdictions. The conditions under which detainees are held also vary widely, ranging from police station holding cells to prisons. Moreover, the lack of government transparency makes it hard to get reliable data. Nevertheless, there are multiple ways to estimate the extent of the use of pretrial detention, including the total number of pretrial detainees; the proportion of the total prison population who have not been convicted; and the number of pretrial detainees as a proportion of the general population.

On any given day, in the majority of countries in the Western Hemisphere, the total pretrial detention population averages below 20,000 people. The countries with the highest estimated pretrial detention populations on an average day are, not surprisingly, those with the largest general populations.

As a result of these high pretrial detention rates, 10 to 40 percent of the entire incarcerated population is behind bars without a conviction in most countries in the Americas. The highest proportion of pretrial detainees among the total prison population is in Bolivia (83.6 percent), followed by Paraguay (71.2 percent), Haiti (67.7 percent), Venezuela (66.2 percent), Dominican Republic (64.7 percent), Uruguay (64.6 percent), Panama (60.8 percent)

Another way to measure where pretrial detention is highest is to estimate the rate of pretrial detention as a proportion of the general population. This provides a standardized comparison across countries of varying sizes, and is not altered by changes in the sentenced prison population. Here, several countries far outpace the global average of 40 pretrial detainees per 100,000 in the general population. Panama (223) heads the list, followed by Uruguay (180)

In most jurisdictions in the Americas, authorities are required by law to bring an arrested individual before a judicial officer within 24 to 72 hours of arrest. If the accused is not released on personal recognisance or cannot afford bail, the individual may spend months in detention while his or her case is pending.

Devastatingly, in some countries (including Bolivia, Panama, and Paraguay), human rights organisations and government reports have found that detainees can spend long periods in detention without even having charges filed against them. The causes of these violations range from judicial corruption and limited and overburdened public defenders to inadequate case tracking, according to the U.S. Department of State.6

In Panama, which has the world’s highest pretrial detention rate in the world, prolonged detention without a hearing is common. Detainees may wait over 5 years for a hearing due to inefficiencies in the legal system and the use of a written inquisitorial system.

Many people who have spent time in detention may eventually be acquitted or released without a trial. Others may be convicted of low-level crimes that do not carry a prison sentence or receive sentences for terms of imprisonment less than the period they spent in detention.

Further, exposure to violence among detainees, threats of violence from other inmates and even guards and direct violence ranging from acts of humiliation to physical violence or sexual assault also often traumatize individuals.

The Impact beyond the Cell

Pretrial detention affects all members of society—detainees, their families and the larger community—resulting in a broad range of personal, social and financial costs. Ironically, pretrial detention has an undesirable impact on factors that have been found to correlate with future criminal offences—future employment and socializing with criminals.16

Detention can cause lost wages or loss of employment, which carries severe collateral consequences for the individual, his or her family, and society at large. The loss of income and the ability to support family members or pay for housing may drive some individuals to criminal activity.

It also creates a vicious circle: many of those caught in pretrial detention are already poor and unable to afford bail, which further hampers their ability to obtain legal counsel that can help them negotiate the pitfalls of the judicial system. For example, in Panama, an estimated 70 percent of detainees could not afford legal counsel.

Research also indicates that pretrial detention increases the likelihood that a person will be convicted, and increases the probability that a person will be sentenced to prison.21

The effects of pretrial detention on justice appear the same even after controlling for factors such as the seriousness of the charges, prior convictions and evidence against the defendant.22 The explanations for this include the inability of a defendant to present himself in a favourable manner, a lack of legal advice, system inefficiencies, and allegations of bias or corruption.

4. Improve conditions of confinement

Overcrowding exacerbates the risks inherent in correctional facilities and jeopardizes the safety of both inmates and correctional officers. If necessary, after analysing data, detention facilities should be expanded or remodelled to mitigate overcrowding and improve conditions. This will require governments and public officials to dedicate more resources and attention to address what—in many countries—are horrific prison conditions.

5. Collaborate

The justice system involves many different agencies and has contact with individuals with a broad range of needs. Reformers should engage government officials, practitioners, researchers, policymakers, and NGOs from within the system and from associated fields such as public health, anti-corruption and socioeconomic development to develop strategies and build consensus. These partnerships can not only help to achieve legislative reforms, but can also support the development and implementation of institutional programming and services, transition planning, and coordination of community-based referrals.

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