Pretrial Detainees Research Articles

Review of the Release Conditions under the U.S. Bail Reform Act during the COVID-19 Pandemic

2020년 1월 미국에서 처음 코로나 19 확진자 발생 후 다른 어떠한 곳보다도 대량으로 집단 감염이 발생한 곳은 교도소와 구치소로서 코로나 19의 집단수용시설에서의 위험이 입증되었다. 미국의 보석 개혁법은 증거우위의 증명(preponderance of evidence) 또는 명백하고 확실한 증명(clear and convincing evidence)이 가능한 경우, 법원은 구금을 명할 수 있다고 규정하고 있다. 하지만 미국 판사들은 코로나 19 발생으로 인한 요소를 석방 요건으로 추가해야 한다고 주장한다. 이에 코로나 19 상황에서도 수감자를 구금해야 한다는 의견과 석방해야 한다는 도덕적, 실제적, 법적 의견으로 나누어진다. 교정당국과 검사들은 구금자들을 석방했을 때 또 다른 추가 범죄로 인한 지역 사회에 끼칠 수 있는 가능성과 피고인 석방 시 추가적인 부담이 필요하다는 것 등을 근거로 수감자를 구금해야 한다고 주장한다. 반면 국제 인권 및 국제기구들의 성명을 통해 건강권은 제한할 수 없으며, 사회적으로 취약한 사람들을 더욱 보호해야 하는 것이 국가의 의무라는 도덕적 이유와 교도소 내에서 물리적 거리두기를 시행해야 하며, 구금자들을 보호하는 것 뿐 만 아니라 교도소 내의 일반인들도 보호해야 한다는 선언을 하였다. 이러한 석방 정책은 교정 시설의 특수성 등을 고려하여 일반적으로 수립하는 것은 지양해야 하며, 주 또는 연방 정부 차원에서 석방 정책의 개발을 위해 독립적인 위원회를 구성할 필요가 있다.Under the U.S. Bail Reform Act, a judicial officer in the United States may order the release or detention of a pre-trial detainees pending trial, depending on whether the government, in moving for detention at a detention hearing, has established either (1) that no condition or set of conditions of release will reasonably assure the appearance of the defendant in court as required; or (2) that no condition or set of conditions of release will reasonably assure the safety of any other person and the community. Under Section 3142 (g) and (i) of the Act, american courts must determine whether release has become necessary, considering the factors such as personal risk of death or suffering based on underlying conditions, personal risk of harm based on living in a jail environment, risk of harm to jail staff and the surrounding community, risk posed by the virus constitutes a “compelling reason”, and necessary for preparation of a person’s defense. Further, during the pandemic era of COVID-19, priority of the release should be given to incarcerated people who meet some combination of specific criteria. These potential criteria are risk of recidivism for a violent offense, presumption of innocence for the accused, risk of mortality from coronavirus, proportion of sentence served, and custodial responsibilities to third parties.

Psychiatric treatment of mentally ill persons in custody – legal, medical and ethical issues

IntroductionThe most recent legal regulations in the Republic of Croatia govern the process of criminal procedure for persons in pre-trial detention who have a temporary mental disturbance for which psychiatric treatment is needed. The Prison Director is in this case obliged to seek psychiatric treatment for such persons who are then hospitalized in a psychiatric institution instead of a prison hospital or prison that meets the requirements prescribed by law for the accommodation of pre-trial detainees. Forensic departments of the five psychiatric hospitals in Croatia accept mentally incapable persons subject to court order, but not persons in custody, i.e. in pre-trial detention. Pre-trial detention is a measure imposed in the previous proceedings to ensure that the person to whom the measure is imposed is present during the pre-trial stage and the hearing stage, i.e. after the final judgment has been rendered until it becomes final. According to Croatian laws, a person who has been sentenced to pre-trial detention and who has mental disorders is entitled to a range of rights that must be respected, and at the same time, there are strict restrictions in exercising those same rights for the reason of sentencing to pre-trial detention.ObjectivesThe article points to several problems that have arisen in practice due to the under-regulation of pre-trial detention measures.MethodsPerspective, opinion, and commentary article.ResultsPerspective, opinion, and commentary article.ConclusionsThe authors discuss legal, medical, and ethical issues, but also the financial framework of such a process.

The (in)distinction between remand imprisonment and prison sentence: Revisiting pre-trial detention within Turkish youth justice system

Around 3.3 million people worldwide are in pretrial detention, and 14 million people are held in such detention per year. Despite the high numbers, remand imprisonment has received little attention in penal theories. Over the past couple of decades, Turkey has constructed high-security remand prisons for young pretrial detainees, indicating a transition towards securitization in the form of remand imprisonment. In these prisons, the element of ‘space’ and spatial control has taken precedence, while ‘labour/discipline’ and ‘time’ have lost significance, reflecting the securitization process. Research conducted in juvenile courts and prisons in 2014–2015 demonstrates how marginalized youth end up in remand prisons that have become social control facilities. Remand imprisonment is interpreted as a crime control and deterrence mechanism by both the prisoners and legal practitioners, and attains roles in crime control that correspond to the residual welfare regime.

Liability for Suicide Attempt of Pretrial Detainee

In Horton v. City of Santa Maria , 915 F.3d 592 (9th Cir. 2019), the Ninth Circuit Court of Appeals reviewed the district court's denial of summary judgment to a police officer, reversing the denial on one charge but upholding it on a second charge. Officer Brice was responsible for a pretrial

A Legal Right to Clozapine Therapy for Incarcerated Individuals With Treatment-Resistant Schizophrenia.

People with serious mental illnesses increasingly are being treated in jails and prisons, and during incarceration are afforded a constitutional right to medical care. This right pertains to both general medical and mental illnesses and both acute and chronic conditions. However, incarcerated patients with treatment-resistant schizophrenia (TRS) often are not offered clozapine, the only medication for this debilitating illness approved by the U.S. Food and Drug Administration. In this column, the authors argue that incarcerated individuals with TRS have a statutory and constitutional right to treatment with clozapine.

Rethinking the Reasonable Response: Safeguarding the Promise of Kingsley for Conditions of Confinement

Nearly five million individuals are admitted to America’s jails each year, and at any given time, two-thirds of those held in jail have not been convicted of a crime. Under current Supreme Court doctrine, these pretrial detainees are functionally protected by the same standard as convicted prisoners, despite the fact that they are formally protected by different constitutional amendments. A 2015 decision, Kingsley v. Hendrickson, declared that a different standard would apply to pretrial detainees and convicted prisoners in the context of use of force: consistent with the Constitution’s mandate that they not be punished at all, pretrial detainees would no longer need to demonstrate that officials subjectively intended to harm them, only that the force they applied was objectively unreasonable. Courts of appeals have begun to extend this shift to claims involving conditions of confinement, but the promise of that move is threatened by the availability of a cost defense for officials who respond reasonably to detainees’ needs given the resource constraints they face. This Note argues that pretrial detainees can only be adequately protected from punishment if the reasonable response includes an affirmative duty to notify superiors of those constraints.

Jail Physician Liability in Detainee's Death by Suicide

In Baker-Schneider v. Napoleon , 769 F. App'x 189 (6th Cir. 2019), the U.S. Court of Appeals for the Sixth Circuit in an unpublished opinion reversed the district court's decision to deny qualified immunity to a jail physician, Rubab Huq, M.D., who evaluated a pretrial detainee prior to his dying by

HIV-Risk Behavior Among Adults with Opioid Use Disorder During 12 Months Following Pre-trial Detention: Results from a Randomized Trial of Methadone Treatment.

This was a three group randomized clinical trial of interim methadone and patient navigation involving 225 pre-trial detainees with opioid use disorder in Baltimore. The HIV Risk Assessment Battery (RAB) was administered at baseline (in jail), and at 6 and 12months post-release. Generalized linear mixed model analyses indicated the condition × time interaction effect failed to reach significance (ps > .05) for both the drug risk and sex risk subscale scores. Therefore, findings suggest that there were no intervention effects on drug or sex risk behaviors. However, increased use of cocaine at baseline was associated with increases in drug- (b = .04, SE = .02) and sex-risk (b = .01, SE = .003) behaviors. These results suggest that interventions targeting cocaine use among pre-trial detainees may serve as a means of reducing HIV risk associated with drug- and sex-risk behaviors.Clinical Trials Registration: Clinicaltrials.gov NCT02334215.

The Strategic Benefits Of Rehabilitation Of The Prison Population Of The City Of Tshwane

There are 158, 111 prisoners in South Africa. This figure includes pre-trial detainees or remand prisoners. Foreign prisoners account for about 7.5% of the South African prison population. There are 243 prison facilities in South Africa. The official capacity of South African prisons is 119, 134. There is a severe shortage of prison facilities in South Africa. Several studies have shown the need for rehabilitation programmes based on international best practice. A survey was conducted by collecting data from 408 residents of the City of Tshwane in South Africa in order to identify factors that affect the perception of people living in the City about the rehabilitation of prison inmates back into society. Multivariate methods of data analyses were used for data analyses. The results showed that 83.33% of respondents support the rehabilitation of South African prison inmates, whereas the remaining 16.67% do not support the rehabilitation of South African prison inmates. The results identified 3 influential factors. These 3 factors were the gender of respondents, the ages of respondents and the level of education of respondents.

Pretrial justice reform and property crime: evidence from New Jersey

ABSTRACT Several states and localities have begun to implement various forms of pretrial justice reforms aimed at reducing the size of pretrial detainee population. However, empirical investigation of the effect of such reforms on crimes more broadly (other than recidivism) is limited. We analyse the effect of the 2017 New Jersey Criminal Justice Reform on property crimes. We find that property crime per 100,000 population increased by 22.5% within the first two years. Our findings suggest that reducing the likelihood of pretrial detention for less violent crimes can have substantial impact on behavioural incentives for offenders of such crimes.

Pretrial Justice Reform and Property Crime: Evidence from New Jersey

Several states and localities have begun to implement various forms of pretrial justice reforms aimed at reducing the size of pretrial detainee population. However, empirical investigation of the effect of such reforms on crimes more broadly (other than recidivism) is limited. We analyze the effect of the New Jersey Criminal Justice Reform implemented in 2017 on property crimes. We find that property crime per 100,000 population increased by 22.5% within the first two years. Our findings suggest that reducing the likelihood of pretrial detention for less violent crimes can have substantial impact on behavioral incentives for offenders of such crimes.

SIGNIFICADOS DO DIREITO AO VOTO POR PARTE DE PRESOS PROVISÓRIOS E ADOLESCENTES INTERNADOS

Este estudo investiga significados e argumentos com relação ao direito de votar e escolher seus representantes, por parte de presos provisórios e adolescentes maiores de 16 anos que cumprem a medida socioeducativa em regime de internato. Objetiva-se compreender os conceitos e representações que circulam no imaginário social, sobre o pleno direito do cidadão privado de liberdade de exercer sua cidadania. Referenciando-se no método monográfico, buscou-se uma revisão bibliográfica de textos e documentos referentes aos aspectos atuais do Código Eleitoral Brasileiro e a relação entre o direito ao voto, formação da cidadania e reinserção social de encarcerados.

Effectiveness of the Miranda Acquiescence Questionnaire for Investigating Impaired Miranda Reasoning.

The capacity of arrestees to comprehend their Miranda rights adequately and to waive them intelligently remains largely unexamined by most defense attorneys and forensic practitioners. Although much is now known about Miranda comprehension, only recently has forensic research emerged on Miranda reasoning. This archival study utilizes an extensive dataset of 847 pretrial detainees who were administered the Standardized Assessment of Miranda Abilities. This study focuses on how forensic practitioners can evaluate Miranda misperceptions that may have contributed to highly consequential decisions to cooperate with law enforcement without seeking legal counsel. Specific items from the Miranda Acquiescence Questionnaire of the Standardized Assessment of Miranda Abilities clearly identified detainees with impaired Miranda reasoning. Two important patterns of Miranda misperceptions were observed: adversarial perspective on arrest and trusting law enforcement. For instance, more than 20 percent of detainees with impaired reasoning wrongly believed that cooperating with police could only have positive outcomes. Even more troubling, more than one fourth of detainees erroneously believed that they must always comply with police requests, which obviously could entail self-incrimination. These findings are then placed in a broader context when examining the professional roles of forensic practitioners in recognizing, understanding, and evaluating for impaired Miranda abilities.

The Strengthening of the Institutional Corrections For Effective Rehabilitation in Kenya

Strengthening the Institutional Corrections for Effective Rehabilitation in Kenya
 Jeniffer Birech
 Department of Sociology and Social Work 
 Abstract
 Globally, Institutional Corrections continue to play a critical role in the rehabilitation of the offenders. It is estimated that there are more than 10.2 million offenders in prison including sentenced and pretrial prisoners. Statistics also show that 144 out of every 100,000 people are in prison. Similarly, in the last fifteen years the estimated world prison has increased by 25-35% hence the need to strengthen institutional corrections for better rehabilitation. In Kenya, the total prison population is about 53,841. This includes the pretrial detainees and remand prisoners. Additionally, there are 92 institutional corrections in Kenya. However, the prison system struggles with overcrowding, poor governance, insufficient coordination with other criminal justice systems and inadequate resources. As a result, the institutions have become breeding grounds for recidivism. This paper examines the development of the prison system, the evolution of the challenges and abuse of human rights. It will also examine how institutions can be strengthened. The paper recommends the need for more research to unearth more innovative ways of dealing with the challenges. There is need for inbuilt mechanisms to ensure good governance and accountability, re-integration and allocation of resources. In essence, a multisectoral approach need to be adopted for sustainable solutions.
 Key Words; Strengthening, Institutional Corrections, Rehabilitation, Prison, Kenya.

The Need for and Possible Content of EU Pre-trial Detention Rules

Pre-trial detention (PTD) is an inherently problematic concept. Not only does it conflict with the right to liberty and the presumption of innocence but its use is associated with an extensive range of problems that affect pre-trial detainees, their families, the fair administration of criminal justice and wider society. Many of these problems have an EU dimension. Case law of the CJEU confirms, for example, that deficiencies in Member States’ PTD regimes threaten to undermine mutual trust and thus the effective functioning of mutual recognition instruments, such as the European arrest warrant (cf. the cases of Aranyosi and Caldararu). Against this background, the article examines the need for, and possible content of, EU PTD rules. It begins by summarising the problems that are associated with PTD and identifies their causal connection with deep-seated systematic practices and/or political and legal cultures at national level that tend to promote an over-reliance on PTD while serving to foment distrust in alternatives. Referring to the 2009 Roadmap for Strengthening Procedural Rights and other relevant texts, it is argued that EU action is necessary to address these deficiencies. This will provide the added value of enhancing justice, fairness and the overall effectiveness of legal and judicial systems, on the one hand, and strengthening the Area of Freedom, Security and Justice, on the other. The article then makes a number of proposals for the nature of such action, the most significant being that the EU should adopt a directive based on Art. 82(2) TFEU that establishes minimum rules relating to the use of PTD. This though would be insufficient in itself and should be complemented by a range of other measures that relate to the implementation of existing EU legislation and engagement in a variety of soft law actions. A detailed analysis of the content of these measures, including recommendations for the content of the mooted directive, is provided.

Neighborhood Context and the Pretrial Process: Do Defendants Face Adverse Outcomes Due to Their Home Address?

When extralegal factors correlate with differences in bond amount and pretrial detention, justice may be compromised. Prior research has identified disparity related to defendant characteristics, such as income and race. This article offers insight into a less explored source of disparity, neighborhood context, and a particularly disadvantaged population, defendants, or pretrial detainees, unable to afford their bail in court and booked into a county jail. Considering the desire for community safety, the difficulty of predicting dangerousness and court attendance, and the impact of ecological factors on other court outcomes, it is hypothesized that neighborhood context heightens disparity in the pretrial process. Findings support this argument. Offense elements best predict bond amount; however, there exists disparity based on neighborhood characteristics. When assessing the same factors in relation to detention length, bond amount is not significant, but rather individual- and neighborhood-level characteristics. Implications are discussed in light of current bail reform efforts.

Pretrial Detainee's Right to Medical Care

In Gordon v. County of Orange , 888 F.3d 1118 (9th Cir. 2018), the Ninth Circuit Court of Appeals reviewed the decision by the U.S. District Court for the Central District of California regarding the death of a pretrial detainee. The successor-in-interest to the detainee brought a 42 U.S.C. § 1983

Prolonged Solitary Confinement of a Pretrial Detainee

In Williamson v. Stirling , 912 F.3d 154 (4th Cir. 2018), the Fourth Circuit Court of Appeals ruled that the district court erred in granting summary judgment based on qualified immunity to two officials involved in a pretrial detainee's extended period of solitary confinement. The Fourth Circuit

Pretrial Detainees, Sentenced Prisoners, and Treatment Motivation.

A dilemma for corrections practitioners is treatment for pretrial detainees. They are innocent until proven guilty and are not required to take treatment, but many may benefit from intervention. To assess the general level of treatment interest and potential differences, a sample of 221 male remand and sentenced Canadian provincial prisoners completed several Client Evaluation of Self and Treatment (CEST) scales. Prisoner treatment motivation and its correlates were assessed by examining univariate, bivariate, and multivariate effects for demographic attributes, legal factors, risk, perceptions of personal/family/pressure for treatment, and depression. It was found that about 36% to 40% of study subjects expressed moderate to strong motivation for treatment. Age, pressure, and depression were the only correlates consistently associated with treatment motivation. There were no differences found between remand and sentenced prisoners. Results indicated that pretrial detainees have a definite interest in undertaking programming.

Segregated Worlds? The Level of Overlap Between Dutch Offenders’ Criminal and Core Discussion Networks

We examine the level of overlap between offenders’ criminal networks (i.e., those with whom they discuss criminal activities and exchange criminal knowledge and skills) and offenders’ core discussion networks (i.e., those with whom they discuss important personal matters). We formulate four hypotheses based on social capital and focus theory. Empirical data from 1,904 Dutch pretrial detainees reveal that one third of the criminal network members also function as core discussion partners and that half of the criminal network members know at least one core discussion partner. This implies that offenders do not completely separate their criminal network from their core discussion network. Multilevel analyses show that this network overlap is larger if criminal network members live close to the offender and/or if they share multiple social settings. Our findings have implications for policies regarding the prevention of recidivism and the reintegration of offenders into society.