Collateral consequences: Costs of pretrial detentions

INCOME

Persons detained awaiting trial cannot work or earn income while detained, and often lose their jobs. If the period of detention is lengthy, detainees’ future earning potential is also undermined. Those who are self-employed – common to people working in the informal economy in much of the developing world – are at risk of bankruptcy, losing their goods through theft, missing sowing or harvesting season, or foregoing their trading space at the local market.

In Mexico, an independent study estimated the amount of income lost, as a result of their detention, by pretrial detainees who were employed at the time of arrest, as 1.3 billion pesos (or about US$100 million) in 2006.[1] In England and Wales, half of men and two-thirds of women employed at the time of arrest lost their jobs as a result of their detention, while only 18 per cent of men and 11 per cent of women expected to have a job to return to upon their release.[2]

The employment and income lost as a result of excessive pretrial detention affect not only the detainees, but their families as well. In addition to lost income, these families must wrestle with legal fees, the cost of bribes to corrupt criminal justice officials, and other expenses. When an income earner is detained, family members must adjust not only to the loss of that income but also to costs of supporting that family member in detention, including travel to visit the detainee, food and personal items for the detainee, and, often, low-level bribes to guards. The impact is especially severe in poor, developing countries where the state does not provide reliable financial assistance to the indigent and where it is not unusual for one breadwinner to financially support an extended family network.

EDUCATION

Many pretrial detainees are young adults, some of whom will have their education interrupted as a result of their detention. In addition, the education of children is often disrupted when their parents are detained. These children have to take on new roles, including providing domestic, emotional or financial support for other family members. According to an NGO report, such children ‘may have to move to a new area, a new home or a new school because of imprisonment’.[3] A review of the literature on children whose mothers are detained found that those ‘children’s lives are greatly disrupted … resulting in heightened rates of school failure and eventual criminal activity.’[4] A study of the children of imprisoned mothers found an ‘increased likelihood of their becoming “NEET” (Not in Education, Employment or Training)’.[5] Particularly in developing countries, children are commonly forced out of school and into work to replace the lost income of detained adults.

EMPLOYMENT

Even where correctional systems offer educational or vocational programmes, pretrial detainees are ineligible because they are considered transient. The enforced idleness of pretrial detainees leads to lower self-esteem and the loss of skills. Add to this the social stigma attached to detention, and it is clear why detainees have great difficulty finding employment after their release. The interruption of education, the lack of vocational programmes for pretrial detainees, the stigma associated with pretrial detention and the loss of work all conspire to disrupt and undermine the occupational prospects of pretrial detainees and, in many cases, those of their children. Although an individual’s pretrial detention may last only a few weeks, the impact can be felt over two generations.

FUNDING DEVELOPMENT

Excessive pretrial detention – especially for persons charged with minor, non-violent offences – is costly and restricts states’ ability to invest in socioeconomic development. For poor countries, where state budgets are rarely balanced and state funding to meet the basic needs of all citizens is inadequate, expenditure on incarcerating pretrial detainees represents a stark opportunity cost. Every bit of state revenue spent on detention results in potentially less money for crucial social services, health, housing and education.

The true impact of pretrial detention on development is often hidden. States generally count only the direct costs of housing and feeding pretrial detainees and overlook indirect costs such as the lost productivity and reduced tax payments of pretrial detainees who could have continued working if they were released before trial. Moreover, a Justice Initiative study in Mexico found that it is far more costly to investigate a case involving a pretrial detainee than one in which the defendant is at liberty: cases involving detainees must be expedited, and pretrial detainees usually face a higher number of court hearings than defendants who are not detained – all of which must be paid for by the state.[6]

MUTUALLY REINFORCING CONSEQUENCES

The various factors through which pretrial detention weakens socioeconomic development are not mutually exclusive, but overlap and reinforce one another. Thus, detaining a large group of people is not only costly for the state (and, thereby, the taxpayer), but has negative financial and social repercussions for detainees, their families and society at large. Reducing the excessive use of pretrial detention can boost socioeconomic development at the family and community level, especially in developing countries where the difference between a stable existence and bare survival is often tenuous.

RECOMMENDATIONS

- Pretrial detention should be used only when no reasonable alternative can address genuine risks of flight or danger to the community. States would better serve their citizens by spending less on locking up people who are presumed innocent and dedicating more resources to social services.
- The use of monetary bail should be avoided. Poor people do not have money readily available to deposit with the court. In place of bail, courts should use personal surety (a promise by the defendant to attend court hearings and stand trial) or reporting requirements under which the defendant reports regularly to the local police station as a condition of remaining free pending trial.
- Where monetary bail is used it should be proportionate to an accused person’s income and within his or her means.
- Detained persons should receive basic necessities – nutritious food, clothing, toiletries and medication – free of charge from the prison authorities.
- To the extent practicable, pretrial detainees should be able to volunteer (though they should not be coerced) to perform prison-based labour for remuneration, and should be eligible for training and education programmes.

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NOTES

[1] Guillermo Zepeda, Costly Confinement: The Direct and Indirect Costs of Pretrial Detention in Mexico (English-language summary), Open Society Justice Initiative, October 2009.
[2] Unjust Deserts: A Thematic Review by HM Chief Inspector of Prisons of the Treatment and Conditions for Unsentenced Prisoners in England and Wales, HM Inspectorate of Prisons for England and Wales, 2000.
[3] Oliver Robertson, The impact of parental imprisonment on children, Quaker United Nations Office, 2007, p. 7.
[4] Barbara J. Myers, Tina M. Smarsh, Kristine Amlund-Hagen and Suzanne Kennon, ‘Children of Incarcerated Mothers,’ Journal of Child and Family Studies, Vol. 8(1), 1999, p. 11.
[5] New Economics Foundation, Unlocking value: How we all benefit from investing in alternatives to prison for women offenders, London, 2008.
[6] Zepeda, op cit.