Taking away someone’s liberty is one of the harshest actions that a state can take against an individual. Imprisonment should be used as a measure of last resort and there should always be avenues to review and reduce prison sentences. However, overcriminalisation, misuse of police powers, lack of procedural safeguards, discrimination and harsh sentencing have resulted in mass incarceration in many countries.
Right now, there are over 3 million people around the world who are detained while waiting for a trial. These are people who are legally innocent, and many of them will ultimately be cleared of any wrongdoing. Pre-trial detention can have devastating consequences. Detained people are separated from their family and friends; they are at risk of losing their job and home; their reputation may be ruined. A 2021 report from Fair Trials paints a harrowing picture of life in custody for people remanded in a prison awaiting trial during the COVID-19 pandemic.
States should consider measures other than detention. If used, it must be justified based on evidence, and in accordance with limited and precisely defined legal grounds. Anyone held in pre-trial detention should have access to an adequately resourced lawyer and have the right to an immediate appeal to a higher court. If used, people must be detained for as short a time as possible and any decisions should be regularly reviewed. Read more about our campaign on pre-trial detention.
Criminal powers are being used to address behaviour that could be better dealt with through poverty alleviation, social welfare and treatment and healthcare. This leads to criminalisation, which means more cases enter the criminal legal system. In response to this, many countries are increasingly using trial waivers and plea bargaining to try and deal with these cases. In the US in particular, this has enabled huge volumes of criminal convictions with little due process and coercive prosecution practices. Defendants are forced to plead guilty in order to avoid disproportionately harsh punishment and lengthy pre-trial detention.