Pretrial Detention: Scale and Relevance to HIV/AIDS

This article originally appeared in the Canadian HIV AIDS Policy & Law Review. Denise Tomasini-Joshi is associate legal officer for the National Criminal Justice Reform Program of the Open Society Justice Initiative.

The indiscriminate use of pretrial detention (PTD)—the incarceration of accused persons before they have been determined guilty of the crime charged—is a violation of international legal standards. These unequivocally establish that all persons are presumed innocent and that liberty while under trial should be the rule rather than the exception.

In spite of these clear standards, the practice of detaining people without a conviction has become more prevalent than freedom while under trial. Because PTD is so prevalent, and carries a number of undesirable social and health consequences, it has become important to address the problem from various perspectives, including those of health and HIV/AIDS.

In 2006, an average of 33.1 percent of all prisoners globally were pretrial detainees. This number, however, is both an average and a snapshot of a single day of detention. As such, it can't provide a true picture of the problem because: (a) it dilutes the numbers for the worst offending countries; (b) it fails to demonstrate how long people spend detained, but not convicted; and (c) it doesn't show how many people spend at least some amount of time in PTD. To illustrate the point about dilution, the following is a list of the countries with the worst ratios of pretrial detainees as a percentage of all prisoners:

Health consequences of excessive pretrial detention

PTD poses particular health risks for a number of reasons. First, prisoners in PTD are often subjected to extreme and erratic overcrowding. Some of this overcrowding takes place in police cells designed for short-term stays and not equipped to handle great numbers of permanent detainees. Since structures for long-term care are not in place, pretrial detainees often don't have access to health care, exercise, work, or education programs, and are subjected to little oversight and control.

While many people in PTD are held for extended periods of time, the population in these cells is still transient. People are sentenced, charges are dropped, and some manage to obtain provisional release. Further, pretrial detainees generally have more contact with lawyers, and family members than sentenced prisoners.

This flow guarantees that detainees are constantly exposed to communicable diseases. Since virtually all detainees are eventually released into the community, the adverse health risks of PTD are not assumed by detainees only; rather they become a public health issue. The risk of spreading any contracted illnesses is heightened upon release because former detainees may not even know that they have been infected.

A further contributor to adverse health effects is poor prison conditions. Many prisons, particularly in the developing world, do not provide detainees with basic nutrition, clothing, or beds. Many of the buildings where detainees are housed lack basic sanitation infrastructure, and protection from the elements or from vermin.

It is not surprising, then, that between the overcrowding and the transient population, UNAIDS now refers to prisons as "incubators" of HIV infection and other diseases, such as hepatitis C and tuberculosis. While these conditions can be difficult for anyone, and manage to make many sick, for people already suffering from chronic illness they can become a death sentence.

PTD also poses particular risks for people whose health is compromised because there is a higher probability of torture, abuse, and assault at the pretrial stage. In countries with limited police resources, cases are "solved" through confessions. Police know that they have a certain period of time to obtain these confessions before the person appears in court, and so torture is often used to obtain them.

Furthermore, because there isn't always a separation between accused persons and convicted criminals, or between youth and adults; and because there are rarely any protective measures for vulnerable detainees, many people end up assaulted and abused in PTD. The problem is particularly salient for transgendered individuals who are often mis-categorized and placed in cells that do not correspond to their gender identity.

For people already suffering from certain illnesses, particularly those with immune-compromised systems due to HIV/AIDS, the result of these frequent occurrences in PTD can be fatal. To make matters worse, much of the assault in PTD can be of a sexual nature, which increases the spread of sexually transmitted and blood borne diseases. Since people in prisons and jails have a much higher rate of HIV/AIDS than the general population, the risk of spreading this disease is particularly high.

Breaks in treatment are yet another consequence of detention. For people who are under medical treatment upon arrest, PTD often represents cessation of this care. Prisoners may wait months to be able to resume taking their medications. In many instances, they are unable to obtain the previously prescribed medications inside the prison.

Finally, for a great number of inmates, medications within the prison are simply not available, making release (be it provisional, through a dismissal of the charges, or through a conviction) the only option for renewing or beginning their treatment.

Solutions to the problem

Solutions to the overuse of PTD must be multifaceted and must include reforms on the ground. At the policy level, and with respect specifically to health, however, it is important to work on the following tasks:

• Develop a network of PTD experts that includes health professionals.
• Increase global awareness, expertise and resources for PTD reform.
• Codify and implement programs and interventions, including medical waiver programs, that provide safe and effective alternatives to PTD.

For health practitioners and people suffering from chronic illnesses, changes in both legislation, and in the number and type of alternative supervision mechanisms, will be crucial. A well-designed pretrial services program that enables pretrial release could greatly reduce the collateral health consequences of PTD.

While alternatives to PTD, such as pretrial services, exist in many countries—often on paper, sometimes in practice—alternatives that target the needs of people with chronic illnesses such as HIV/AIDS are practically nonexistent. A health-focused program that allows a public health exception to detention, and provisional release for treatment continuation, should be developed.

Release and detention decisions must begin to take into account health issues, in order to protect the health of inmates, criminal justice employees, and the community at large.

There are many groups working on prison issues or on health issues, but these groups have tended to think of PTD as tangential to their core issues. But PTD is a problem that deeply affects the core constituencies of both groups and a joint campaign is needed to provide possible solutions.