Pretrial detention and the presumption of innocence

Pretrial detention is a common practice and is a major contributor to prison overcrowding. There is a clear tension between pretrial detention and the presumption of innocence. The presumption of innocence prevents governments from inflicting punishment or punishment-like activities on individuals before they are convicted. Imprisoning someone pre-conviction restricts their human rights, can act as pre-punishment, and can result in long-lasting consequences after release. Laws allowing pretrial detention are set out in different articles or sections from the laws granting the presumption of innocence. As such, the legality of a pretrial detention decision is often evaluated through the lens of the laws regarding pretrial detention alone. However, an overwhelming number of cases that decide presumption of innocence issues are actually considering whether detaining someone pretrial violates the presumption of innocence. These inquiries however are quite general. There are few decisions that evaluate whether the reasons behind the individual’s pretrial detention violate the presumption of innocence.
This paper identifies three main themes as reasons why governments hold individuals in pretrial detention: 1. the type of charges the person has been accused of; 2. crime prevention; and 3. to ensure that the accused person is present for trial. It evaluates each of these reasons with respect to the presumption of innocence in order to determine whether they are compatible with the presumption. The paper concludes that the presumption of innocence does not permit holding someone in pretrial detention for the types of charges of which they have been accused or to prevent future crimes. The presumption of innocence is only compatible with holding an accused before trial to ensure their appearance at trial. This reason however, can only be valid if the decision to detain the accused before the trial’s outcome is considered outside of the realm of criminal law.