Comparing Bail Practices: Criminal Justice Policies in 5 Countries, Exams of Criminal Justice

Download Comparing Bail Practices: Criminal Justice Policies in 5 Countries and more Exams Criminal Justice in PDF only on Docsity! FACTSHEET: PRETRIAL DETENTION AND REMAND TO CUSTODY Other nations protect public safety without imprisoning as large a percentage of their population, handle law-breaking behavior in ways less reliant on incarceration, and have different approaches to addressing complex social issues. This factsheet, derived from the longer report, Finding Direction: Expanding Criminal Justice Options by Considering Policies of Other Nations, considers the criminal justice policies of five nations, Australia, Canada, Finland, Germany and England and Wales, alongside those of the U.S. In the U.S., when a person is charged with an offense they may be detained in jail until their trial or they may be released to await their trial in the community through a variety of mechanisms which will be discussed later. In many other nations, people are said to be “remanded,” which is a summons to appear before a judge at a later date. If they are not released pretrial they can be “remanded to custody” until their court proceeding; if they are convicted, they can be remanded to custody prior to sentencing or during an appeal process. That some other nations include both those awaiting court hearings and those awaiting sentencing in their number of people “remanded to court” makes it an imperfect parallel with U.S. figures for pretrial detention; nonetheless, data collected by the International Centre for Prison Studies in London shows that a smaller percentage of the total number of people incarcerated in European nations are remanded to custody prior to trial or sentencing compared to in the United States. Canada holds the largest percentage of the total incarcerated population in pretrial detention—36 percent are remanded.1 Pretrial detention is associated with a higher likelihood of both being found guilty2 and receiving a sentence of incarceration over probation,3 thus forcing a person further into the criminal justice system. In the United States, this is particularly important because of the sheer numbers: with 20 percent of the total number of people incarcerated being pretrial, that means nearly 500,000 people each year are more likely to be found guilty and sentenced to incarceration, thus significantly adding to the total number of people in prison. Each comparison nation has different thresholds for determining who will be released prior to trial. Nearly all comparison countries will hold a person pretrial to ensure return for trial. However, Canada, the United States, and England and Wales, will also hold a person pretrial to protect public safety.4 Finland makes decisions about remand speedily and does so within four days of arrest. If a person is remanded to custody, they may request a new hearing every two weeks.5 If a person is not released on their own recognizance, the court can set a monetary amount that can be paid in exchange for release, which is called bail. The use of bail in Australia, Canada, the United States, and England and Wales likely contributes to the number of people held pretrial.6 Germany has bail, but uses it infrequently, and Finland does not have a system of bail at all.7 In addition, the United States is the only other nation besides the Philippines that permits commercial bail, or the practice of paying a third party to post bail on your behalf. This practice allows a third party, generally a corporation, to inherently make decisions in the bail process; because they make decisions based on a profit motive, public and individual well-being plays no role in deciding for whom they will post bail.8 FINDING DIRECTION: Expanding Criminal Justice Options by Considering Policies of Other Nations APRIL 2011 FINDING DIRECTION 2 Although the United States pretrial and detention practices are not notably different than those in the other comparison countries, it is worth considering that in those nations people are released on their own recognizance more often and bail is a right, not a privilege, issued relatively infrequently within the guidelines of a few, specific offenses.9 Releasing more people pretrial would not only potentially reduce the number of people going to prison, but prevent people from losing connections to work, family and community while being held pretrial.10 In addition, holding more people pretrial is not correlated with having higher rates of crime or victimization. Policy Opportunity Increase releases pretrial: Comparison nations other than Canada use pretrial detention less than the United States, without experiencing a negative impact on public safety. End commercial bail: Comparison nations forbid paying a third party any sum in exchange for posting bail. Private corporations contribute to the number of people held pretrial because they make bail decisions based on what is profitable, not the risk to public safety. States like Oregon, Illinois, Kentucky, and Wisconsin abolished commercial bail and require down-payments to the court, which are refunded only upon the person’s appearance in court. FINDING DIRECTION 5 20 Statistics Canada, “Adult and Youth Correctional Services: Key Indicators,” September 30, 2010. www.statcan.gc.ca/daily- quotidien/091208/dq091208a-eng.htm, Sara Johnson, Custodial Remand in Canada, 1986/87 to 2000/01, (Ottawa, Canada: Canadian Centre for Justice Statistics, 2003). www.statcan.gc.ca/pub/85-002-x/85-002-x2003007-eng.pdf, Government of Alberta, “Edmonton Remand Centre,” Accessed November 15, 2010. 21 Ron Jourard, Criminal Lawyer, “Bail and Release from Custody,” Accessed November 15, 2010. www.defencelaw.com/printversion-bail- 4.html#forfeiture 22 International Centre for Prison Studies, “World Prison Brief: Country Profiles,” January 5, 2011 www.kcl.ac.uk/depsta/law/research/icps/worldbrief/ 23 Matti Joutsen, Raimo Lahti and Pasi Pölönen, Criminal Justice Systems in Europe and North America, Finland (Helsinki, Finland: The European Institute for Crime Prevention and Control, 2001). www.heuni.fi/uploads/mw1ahyuvuylrx.pdf 24 Criminal Sanctions Agency, “Turku prison and Turku remand prison went into history: The prison of South western Finland started operations,” June 1, 2003. www.rikosseuraamus.fi/22438.htm, Criminal Sanctions Agency, “The New Vantaa Prison Replaces Helsinki Remand Prison,” April 23, 2002. www.rikosseuraamus.fi/14021.htm 25 A.M. van Kalmthout, M.M. Knapen, C. Morgenstern, Pretrial Detention in the European Union: Finland, (Tiburg, Netherlands: Tilburg University, 2009). 26 Matti Joutsen, Raimo Lahti and Pasi Pölönen, Criminal Justice Systems in Europe and North America, Finland (Helsinki, Finland: The European Institute for Crime Prevention and Control, 2001). www.heuni.fi/uploads/mw1ahyuvuylrx.pdf, U.S. Department of State, “2009 Human Rights Report: Finland,” March 11, 2010. www.state.gov/g/drl/rls/hrrpt/2009/eur/136030.htm 27 Matti Joutsen, Raimo Lahti and Pasi Pölönen, Criminal Justice Systems in Europe, 2010, A.M. van Kalmthout, M.M. Knapen, C. Morgenstern, Pretrial Detention in the European Union: Finland, (Tiburg, Netherlands: Tilburg University, 2009). http://ec.europa.eu/justice/doc_centre/criminal/procedural/doc/chapter_9_finland_en.pdf 28 International Centre for Prison Studies, “World Prison Brief: Country Profiles,” January 5, 2011 www.kcl.ac.uk/depsta/law/research/icps/worldbrief/ 29 Jörg-Martin Jehle, Criminal Justice in Germany, (Berlin, Germany: Federal Ministry of Justice, 2009). www.bmj.bund.de/media/archive/960.pdf 30 A.M. van Kalmthout, M.M. Knapen, C. Morgenstern, Pretrial Detention in the European Union: Germany, (Tilburg, Netherlands: Tilburg University, 2009). http://ec.europa.eu/justice/doc_centre/criminal/procedural/doc/chapter_11_germany_en.pdf, United Nations Educational, Scientific and Cultural Organization, “Library System of Prisons in Hamburg, Germany,” Accessed November 15, 2010. www.unesco.org/uil/literacyinprison/Page-Library-system-of-prisons-in-Hamburg-Germany-39.html 31 A.M. van Kalmthout, M.M. Knapen, C. Morgenstern, Pretrial Detention: Germany, 2009; U.S. Department of State, “2009 Human Rights Report: Germany,” March 11, 2010. www.state.gov/g/drl/rls/hrrpt/2009/eur/136033.htm 32 Only includes data from England and Wales. 33 International Centre for Prison Studies, “World Prison Brief: Country Profiles,” January 5, 2011 www.kcl.ac.uk/depsta/law/research/icps/worldbrief/ 34 A.M. van Kalmthout, M.M. Knapen, C. Morgenstern, Pretrial Detention in the European Union: United Kingdom, (Tiburg, Netherlands: Tilburg University, 2009). 35A.M. van Kalmthout, M.M. Knapen, C. Morgenstern, Pretrial Detention: United Kingdom, 2009. 36 A.M. van Kalmthout, M.M. Knapen, C. Morgenstern, Pretrial Detention: United Kingdom, 2009. 37 A.M. van Kalmthout, M.M. Knapen, C. Morgenstern, Pretrial Detention: United Kingdom, 2009. 38 A.M. van Kalmthout, M.M. Knapen, C. Morgenstern, Pretrial Detention: United Kingdom, 2009. 39 International Centre for Prison Studies, “World Prison Brief: Country Profiles,” January 5, 2011 www.kcl.ac.uk/depsta/law/research/icps/worldbrief/ 40 Douglas J. Klein, “The Pretrial Detention ‘Crisis’: The Causes and the Cure,” Washington University Journal of Urban and Contemporary Law 52, (1997): 281-305. http://law.wustl.edu/journal/52/306.pdf 41 American Bar Association, “Criminal Justice Section Standards: Pretrial Release,” Accessed November 16, 2010. www.abanet.org/crimjust/standards/pretrialrelease_blk.html#10-5.8 42 U.S. Marshals Service, “Defendants in Custody and Prisoner Management,” Accessed November 16, 2010. www.usmarshals.gov/prisoner/index.html, Paul Gewirtz and Jeffrey Prescott, “U.S. Pretrial Detention: A Work in Progress,” Caixin Online, March 24, 2010. http://english.caing.com/englishNews.jsp?id=100129236&time=2010-03-24&cl=111&page=all, Federal Defender Program, Inc., Northern District of Georgia, “Pretrial Detention,” Accessed November 16, 2010. http://gan.fd.org/index_files/Page406.htm, Larry J. Siegel, Essentials of Criminal Justice, Sixth Edition (Belmont, CA: Wadsworth Cengage Learning, 2009). 43 Paul Gewirtz and Jeffrey Prescott, “U.S. Pretrial Detention: A Work in Progress,” Caixin Online, March 24, 2010. http://english.caing.com/englishNews.jsp?id=100129236&time=2010-03-24&cl=111&page=all FINDING DIRECTION 6 44 National Association of Pretrial Services Agencies, “Facts and Positions: the Truth About Commercial Bail Bonding in America,” August 2009. www.napsa.org/publications/napsafandp1.pdf