Alternatives to Pretrial Detention

by

Christine Morgenstern

• LAST REVIEWED: 21 February 2022
• LAST MODIFIED: 21 February 2022
• DOI: 10.1093/obo/9780195396607-0311

Introduction

Taking into account the fundamental right to liberty and the presumption of innocence, suspects or accused persons cannot be deprived of their liberty unless absolutely necessary to ensure that the criminal process can take place in an orderly manner or, although this aim is disputed, re-offending is prevented. Generally, human rights principles must be applied in a way that the suspect or accused may await the procedure in unrestricted liberty or, as common law systems would put it, that there is a presumption for bail. If this appears insufficient to prevent a suspect or accused person from absconding, from tampering with evidence, or from re-offending, supervision or other control measures that leave her or him at large could be applied—conditional bail or “alternatives to pre-trial detention.” This bibliography covers these measures, that vary considerably throughout the world. They may take less invasive forms such as release on recognizance with some obligations attached, for example to regularly report to the authorities. But they also may take the form of curfew, electronically monitored curfew or drug treatment. While these initiatives have the potential to help defendants, in particular when they include therapeutic jurisprudence perspectives, and reduce the remand population, ample use of alternatives to pre-trial detention has the potential for net-widening. The cumulation of conditions may lead to failures to comply. Further problems are practices which overestimate risks and exclude certain groups from non-custodial alternatives, namely foreigners, ethnic minorities, and socially marginalized, often indigent defendants. Other problems arise for vulnerable groups, including children and female defendants. Throughout this bibliography, the terms “bail” or “conditional bail” and “alternatives to pre-trial detention” will be used synonymously, as will “remand custody,” “remand detention,” and “pre-trial detention.” Equally, “ suspects and accused persons” and “defendants” will be used alternately, covering persons not yet convicted. The strong tradition of bail reform and pretrial services in the United States is covered in the separate Oxford Bibliographies in Criminology article “Bail and Pretrial Detention”. This bibliography therefore focuses on European resources in English language. It includes some important works from other countries, namely Canada and Australia, to complement the overall picture, and selected non-English publications. Research literature on alternatives to pre-trial detention generally is scarce and often this aspect is included in publications on pre-trial measures more generally, or those concentrating on pre-trial detention. This is regrettable, as liberty not detention should be the default option during the criminal proceedings. The “alternatives” have their own problems and merit scientific attention. Empirical research activities in Europe concentrate in some regions, namely the United Kingdom, Belgium, and the Netherlands. This entry concentrates on impulses for the field that come from legal-theoretical or socio-legal comparative works and from scientific contributions that analyze international and, more specifically, European influences.

General Resource Materials

A broad account of general characteristics of and principles for bail and alternatives to pre-trial detention worldwide can be found in the introductory chapter and the various contributions of the comprehensive comparative study van Kempen 2012. Morgenstern 2014 presents a concise overview over the different approaches. Research in the field of pre-trial measures often is included in works on the criminal process more generally, putting the question into the wider context of legal procedural principles, human rights, or socio-legal analysis. The chapters Hucklesby 2002 and Campbell, et al. 2019 are valuable introductions to the topic. They explain from the common law point of view why there is a presumption for bail, how bail law and practice have developed in England and Wales, and what its normative and practical prerequisites are. Morgenstern 2018 does the same for Germany, discussing both pre-trial detention and its alternatives and taking a broad perspective including comparisons with other European jurisdictions and pan-European principles. In addition to these systematic works, two studies provide for more specific context: The first, Ashworth and Zedner 2014, discusses pre-trial measures as part of a general tendency toward preventive justice, which marginalizes due process and the presumption of innocence in favor of early risk assessment and public safety concerns. The second, United Nations Office on Drugs and Crime 2007, takes a reductionist perspective on detention and, using examples of good practices, explains strategies to develop meaningful alternatives both in the pre-trial and the sentencing stage of the criminal process.

• Ashworth, Andrew, and Lucia Zedner. 2014. Preventive justice. Oxford: Oxford Univ. Press.

  DOI: 10.1111/1468-2230.12121_3

  Comprehensive monograph that combines normative questions with criminological and sociological approaches to reassess foundations and limits for the wide range of coercive preventive measures, discussing and providing context for pre-trial measures during the criminal process, both custodial and non-custodial.

• Campbell, Liz, Andrew Ashworth, and Mike Redmayne. 2019. Remands before trial. In The criminal process. 5th ed. By Liz Campbell, Andrew Ashworth, Andrew, and Mike Redmayne, 236–266. Oxford: Oxford Univ. Press.

  DOI: 10.1093/he/9780198818403.003.0008

  Handbook chapter that discusses issue of the presumption of bail, decision-making in remand matters as part of the criminal process in England and Wales.

• Hucklesby, Anthea. 2002. Bail in criminal cases. In The handbook of the criminal justice process. Edited by M. McConville and G. Wilson, 115–136. Oxford: Oxford Univ. Press.

  Handbook chapter demonstrating how the right to bail in England and Wales has developed in law and practice.

• Morgenstern, Christine. 2014. Alternatives to pre-trial detention. In Encyclopedia of criminology and criminal justice. Edited by G. Bruinsma, and D. Weisburd, 68–75. Heidelberg, Germany: Springer.

  DOI: 10.1007/978-1-4614-5690-2_563

  Brief overview over different systematic approaches to bail and alternatives to pre-trial detention worldwide.

• Morgenstern, Christine. 2018. Die Untersuchungshaft. Baden-Baden, Germany: Nomos.

  DOI: 10.5771/9783845284873

  Comprehensive up-to-date study, considering legal-theoretical, criminological, and comparative aspects of pre-trial detention and its alternatives with a focus on Germany and other European states. In German.

• United Nations Office on Drugs and Crime. 2007. Handbook of basic principles and promising practices on alternatives to imprisonment. New York: United Nations.

  Stock-taking of practice and problems of reductionist policies to avoid detention in a universal approach, with particular focus on judicial decision-making (including in pre-trial proceedings).

• van Kempen, Piet, ed. 2012. Pre-trial detention: Human rights, criminal procedural law and penitentiary law, comparative law. Cambridge, UK: Intersentia.

  Comprehensive edited collection that discusses pre-trial detention and its alternatives in a human rights context for twenty-one jurisdictions on all continents, supplemented by five thematic chapters on specific practical problems.