A new report highlights the excessive use of pretrial detention in Latin America — a phenomenon that contributes greatly to prison overcrowding and violence, which could be minimized with increased political will to push through better legislation.

On any given day, as many as 3.3 million people in the world are being held in pretrial detention, according to a new report by Open Society Justice Initiative of the Open Society Foundations (OSF – pdf).

The Americas is home to 975,100 of these detainees. In Latin America alone, over 40 percent of all prisoners are being held without a trial. According to 2012 International Centre for Prison Studies (ICPS) data analyzed by OSF, six Latin American and Caribbean nations are listed among the top 20 nations in the world with the highest proportion of pretrial detainees.

Bolivia is the most reliant on pretrial detention within Latin America: 83.3 percent of its overall prison population is being held prior to trial, as indicated in the map below. Next is Paraguay at 73.2 percent, followed by Venezuela (64.1 percent), Panama (63.8 percent) and Uruguay (63.7 percent). One Caribbean nation, Haiti, made the list: 70.6 percent of its prison population is made up of pretrial detainees.

Pretrial Detainees as % of Total Prison Population

Source: Open Society Justice Initiative report 

The Americas also took the lead when measuring the number of pretrial detainees per 100,000 residents, with 107 per 100,000, compared to a world average of 50.

Panama ranks most poorly when using this measurement, with 271 detainees for every 100,000 people — the highest in the world. 

The OSF study found that lower-income countries generally had higher rates of pretrial detention. However, there was still room for anomalies like Uruguay — a nation considered high income by the World Bank. According to the report, this could be explained by the fact that wealthier countries, able to invest more resources in their judiciary, tend to have more cases passing through the system. This can lead to the same problems faced by many poorer countries: backlogs of cases and overly long pretrial detention periods.

The study also pointed out that reducing the world’s pretrial detention population by half would “in theory, solve the world’s prison crowding crisis.” In the Americas, it would bring the region’s prisons — currently at 119 percent capacity — down to 103 percent capacity.

But how could the number of detainees be reduced? The report makes a few key recommendations:

  • Setting legal limits on the circumstances, time period, and extent of pretrial detention.  
  • Allowing judges to rely on alternatives to this measure.
  • Making bail affordable for detainees of all socioeconomic backgrounds.
  • Creating mandatory pretrial detention review systems.
  • Increasing the capacity of judicial officials to release detainees.

InSight Crime Analysis

The OSF report gives much-needed perspective on the scope of Latin America’s pretrial detention problem. Overuse of pretrial detention doesn’t just foment prison overcrowding and violence: it also provides a vulnerable pool of recruits to prison gangs, and may lead to more low-level offenders being sucked into more serious criminal activity.

Three of the Latin American and Caribbean countries on the list with the highest number of pretrial detainees — Venezuela, Bolivia and Haiti — also have the most overpopulated prisons in the world. Haiti ranks number one globally: its prisons are at 416.3 percent capacity, according to ICPS figures.

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These three countries share something else in common: out-of-control prison systems. According to a report cited by OSF, in Venezuela, over 4,500 prisoners were killed and over 12,500 injured in prison violence between 1999 and 2010. Haiti’s prison crisis was recently highlighted by a mass breakout of 329 inmates from a penitentiary. Meanwhile, a recent prison riot in Bolivia produced four deaths and resulted in the arrest of a regional prison director.

By no means are these countries standalone examples. As noted by the OSF, pretrial detention helps spur human rights and criminal crises across Latin America. Many of the region’s prisons are largely controlled by powerful inmates — often gang members — who dictate the rules of the facility.

As highlighted by the report’s data, a major issue in Latin America is the extensive use of pretrial detention. Rather than being used as a last resort, it is employed frequently — and often arbitrarily. This is a particular problem in Mexico, where the judicial system makes great use of a measure known as “arraigo” — the right to detain and hold a suspect before bringing charges. The overuse of pretrial detention feeds a vicious cycle: it creates an ever larger pools of detainees, and thus makes it impossible to process cases at a fast enough pace to unclog the system.

Another problem is where pretrial detainees are held. They often stay in extremely makeshift facilities for far longer periods of time than laws allow. In countries including Uruguay and El Salvador, convicts and pretrial detainees are kept in the same facilities, increasing chances that the suspects — who may be innocent — will be exposed to hardened criminals and absorbed into violent gangs. Such has been the experience of the Northern Triangle countries of El Salvador, Honduras, and Guatemala, where mass roundups of suspected gang members has provided ready recruitment pools for the gangs, and helped these organizations consolidate themselves within the prisons.

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As noted by OSF, the problem of pretrial detention is far more than one of judicial capacity. It is also one of misplaced policies, corruption, and a lack of political will to lessen the crisis through the use of preventive measures. Any lasting solution will need to target these underlying factors.

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