Detention of suspects
Encyclopedia
The detention of suspects is the process of keeping a person who has been arrest
ed in a police-cell, remand prison or other detention centre before trial
or sentencing
. One criticism of pretrial detention is that eventual acquittal can be a somewhat hollow victory, in that there is no way to restore to the defendant the days already spent in jail. Pretrial detention alters a defendant's incentives by making his or her best-case scenario not zero days in jail, but the length of time served pretrial. Therefore, the defendant may be more likely to plead guilty if the chance of acquittal is low, or if the expected sentence on a guilty plea is less than the amount of jail time that would be served pretrial. Pretrial detainees may also find it harder to mount an effective defense.
with an offence. Not all countries have such a concept, and in those that do, the period for which a person may be detained without trial varies from jurisdiction to jurisdiction.
, a person is protected by the federal constitution from being held in prison unlawfully. The right to have one's detention reviewed by a judge is called habeas corpus
. The U.S. Constitution
states that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it". A declaration of a state of emergency
can suspend the right to habeas corpus. The Fifth Amendment to the United States Constitution
states in part:
The Sixth Amendment
requires criminal defendants to be "informed of the nature and cause of the accusation". The U.S. Bill of Rights
thus grants some protection against being held without criminal charge, subject to the courts' interpretation of what due process
means. Federal authorities have also exercised the power to arrest people on the basis of being a material witness
. Involuntary commitment
of the mentally ill is another category of detention without criminal prosecution, but the right of habeas corpus still applies. The scope of such detentions is also limited by the Bill of Rights, and the practice is controversial, especially when applied to sex offender
s.
The executive's military powers have been used to justify holding enemy combatant
s as prisoners of war, unlawful combatants, and Civilian Internee
s; the latter two practices have been controversial, especially with regard to the indefinite detention
implied by uncertainty as to when the "War on Terror
" might be declared to have ended. Administrative detention
, a term applied to many of these categories, is also used to imprison illegal immigrants.
, meaning that a suspect can be detained by a court in the case of crimes for which there is a prison term of one year or more. There are two degrees of suspicion:
Reason for detention is if the crime is a statutory minimum penalty of at least 1 year, and one of:
A person may be held in custody for a period of normally not more than 14 days (seven days if only the degree of suspicion "reasonable suspicion" exists), then normally new remand hearing should be held. For suspect who has not yet turned 18 needed "serious reasons" for detention decisions are to be notified of the court.
A person who was häktad but was not charged (or was freed after trial) is entitled to financial compensation, with an amount determined by the Chancellor of Justice. It is usually around 500 SEK (80 USD) per day for the suffering, somewhat more if there was media attention, plus compensation for lost work income. 1200 people were compensated in 2007. If prison is sentenced, the time as häktad counts as a part of the prison time, so that less time will remain after the trial.
The Committee for the Prevention of Torture
of the Council of Europe
has repeatedly criticized pre-trial detention in Sweden for the high percentage of cases where restrictions on communication are applied. Such communication restrictions means in Sweden no visits, no telephone calls, no newspapers and no TV.
Pre-trial detention is decided by a District Court. The imprisonment is possible if the suspicion is supported by probable cause and the law provided specific conditions are met.
Remand in custody prior to arrest time, which in Finland is limited to three days, in which case no later than the fourth day of the court must decide whether the imprisonment. Decide on the arrest of the investigating authority.
Pre-trial detention until the court released a remand prisoner's sentence or until the performance begins. Finland will continue in the detention of any court of appeal proceedings. Inquiry Inmates have different rights than prison inmates. Remand prisoners are allowed to wear their own clothes.
In most countries, remand prisoners are considered innocent until proven guilty by a court
and may be granted greater privileges than sentenced prisoners, such as:
Not all remand prisons grant these privileges, in particular, remand prisoners are often forced to wear prison uniforms and denied additional visitation rights, supposedly for safety reasons. Often they are denied all visits and all newspaper and media access, for risk of interfering with the investigation, such as communicating a story with fellow remand prisoners.
The Eighth Amendment to the United States Constitution
prohibits excessive bail
. Under the US Code, pretrial detention of federal suspects is only allowed under certain circumstances, such as when the defendant is a danger to witnesses or jurors.
Arrest
An arrest is the act of depriving a person of his or her liberty usually in relation to the purported investigation and prevention of crime and presenting into the criminal justice system or harm to oneself or others...
ed in a police-cell, remand prison or other detention centre before trial
Trial
A trial is, in the most general sense, a test, usually a test to see whether something does or does not meet a given standard.It may refer to:*Trial , the presentation of information in a formal setting, usually a court...
or sentencing
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
. One criticism of pretrial detention is that eventual acquittal can be a somewhat hollow victory, in that there is no way to restore to the defendant the days already spent in jail. Pretrial detention alters a defendant's incentives by making his or her best-case scenario not zero days in jail, but the length of time served pretrial. Therefore, the defendant may be more likely to plead guilty if the chance of acquittal is low, or if the expected sentence on a guilty plea is less than the amount of jail time that would be served pretrial. Pretrial detainees may also find it harder to mount an effective defense.
Detention before charge
Pre-charge detention refers to the period of time that an individual can be held and questioned by police, prior to being chargedIndictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
with an offence. Not all countries have such a concept, and in those that do, the period for which a person may be detained without trial varies from jurisdiction to jurisdiction.
United States
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, a person is protected by the federal constitution from being held in prison unlawfully. The right to have one's detention reviewed by a judge is called habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
. The U.S. Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
states that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it". A declaration of a state of emergency
State of emergency
A state of emergency is a governmental declaration that may suspend some normal functions of the executive, legislative and judicial powers, alert citizens to change their normal behaviours, or order government agencies to implement emergency preparedness plans. It can also be used as a rationale...
can suspend the right to habeas corpus. The Fifth Amendment to the United States Constitution
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
states in part:
The Sixth Amendment
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
requires criminal defendants to be "informed of the nature and cause of the accusation". The U.S. Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
thus grants some protection against being held without criminal charge, subject to the courts' interpretation of what due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
means. Federal authorities have also exercised the power to arrest people on the basis of being a material witness
Material witness
A material witness is a person with information alleged to be material concerning a criminal proceeding. The authority to detain material witnesses dates to the First Judiciary Act of 1789, but the Bail Reform Act of 1984 most recently amended the text of the statute, and it is now codified at...
. Involuntary commitment
Involuntary commitment
Involuntary commitment or civil commitment is a legal process through which an individual with symptoms of severe mental illness is court-ordered into treatment in a hospital or in the community ....
of the mentally ill is another category of detention without criminal prosecution, but the right of habeas corpus still applies. The scope of such detentions is also limited by the Bill of Rights, and the practice is controversial, especially when applied to sex offender
Sex offender
A sex offender is a person who has committed a sex crime. What constitutes a sex crime differs by culture and by legal jurisdiction. Most jurisdictions compile their laws into sections such as traffic, assault, sexual, etc. The majority of convicted sex offenders have convictions for crimes of a...
s.
The executive's military powers have been used to justify holding enemy combatant
Enemy combatant
Enemy combatant is a term historically referring to members of the armed forces of the state with which another state is at war. Prior to 2008, the definition was: "Any person in an armed conflict who could be properly detained under the laws and customs of war." In the case of a civil war or an...
s as prisoners of war, unlawful combatants, and Civilian Internee
Civilian Internee
Civilian Internee is a special status of a prisoner under the Fourth Geneva Convention. Civilian Internees are civilians who are detained by a party to a war for security reasons...
s; the latter two practices have been controversial, especially with regard to the indefinite detention
Indefinite detention
Indefinite detention is the incarceration of an arrested person by a national government or law enforcement agency without a trial. It is a controversial practice on the part of any government or agency that is in violation of many national and international laws, including human rights laws...
implied by uncertainty as to when the "War on Terror
War on Terror
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
" might be declared to have ended. Administrative detention
Administrative detention
Administrative detention is arrest and detention of individuals by the state without trial, usually for security reasons. A large number of countries, both democratic and undemocratic, resort to administrative detention as a means to combat terrorism, control illegal immigration, or to protect the...
, a term applied to many of these categories, is also used to imprison illegal immigrants.
Häktning (Swedish law)
Häktning is a pre-trial supervision measures pursuant to Swedish lawJudicial system of Sweden
The judicial system of Sweden consists of the law of Sweden and a number of government agencies tasked with upholding security and rule of law within the country...
, meaning that a suspect can be detained by a court in the case of crimes for which there is a prison term of one year or more. There are two degrees of suspicion:
- reasonable suspicion (the lower level of suspicion), or
- probable cause (the higher level of suspicion).
Reason for detention is if the crime is a statutory minimum penalty of at least 1 year, and one of:
- risk of recidivismRecidivismRecidivism is the act of a person repeating an undesirable behavior after they have either experienced negative consequences of that behavior, or have been treated or trained to extinguish that behavior...
; - risk that the suspect will destroy evidence or otherwise affect the investigation of the crime (e.g. suppression of evidence );
- risk that the suspect will flee prosecution or punishment, or
- the suspect is without permanent residence in Sweden, also for lesser crimes.
A person may be held in custody for a period of normally not more than 14 days (seven days if only the degree of suspicion "reasonable suspicion" exists), then normally new remand hearing should be held. For suspect who has not yet turned 18 needed "serious reasons" for detention decisions are to be notified of the court.
A person who was häktad but was not charged (or was freed after trial) is entitled to financial compensation, with an amount determined by the Chancellor of Justice. It is usually around 500 SEK (80 USD) per day for the suffering, somewhat more if there was media attention, plus compensation for lost work income. 1200 people were compensated in 2007. If prison is sentenced, the time as häktad counts as a part of the prison time, so that less time will remain after the trial.
The Committee for the Prevention of Torture
Committee for the Prevention of Torture
The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment or shortly Committee for the Prevention of Torture is the anti-torture committee of the Council of Europe...
of the Council of Europe
Council of Europe
The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...
has repeatedly criticized pre-trial detention in Sweden for the high percentage of cases where restrictions on communication are applied. Such communication restrictions means in Sweden no visits, no telephone calls, no newspapers and no TV.
Tutkintavankeus (Finnish law)
Tutkintavankeus/Häktning is a precautionary measure under Finnish law to ensure that a criminal suspect or defendant does not complicate the proceedings, continue criminal activities, flee from the trial or flee from the future execution of the sentence.Pre-trial detention is decided by a District Court. The imprisonment is possible if the suspicion is supported by probable cause and the law provided specific conditions are met.
Remand in custody prior to arrest time, which in Finland is limited to three days, in which case no later than the fourth day of the court must decide whether the imprisonment. Decide on the arrest of the investigating authority.
Pre-trial detention until the court released a remand prisoner's sentence or until the performance begins. Finland will continue in the detention of any court of appeal proceedings. Inquiry Inmates have different rights than prison inmates. Remand prisoners are allowed to wear their own clothes.
Bail
The term "remand" may be used to describe the process of keeping a person in detention rather than granting bail. A prisoner who is denied, refused or unable to meet the conditions of bail, or who is unable to post bail, may be held in a prison on remand. Although remanded prisoners are usually detained separately from sentenced prisoners, due to prison overcrowding they are sometimes held in a shared accommodation with sentenced prisoners. Reasons for being held in custody on remand vary depending on the local legal system, but may include:- the suspect has been accused of carrying out a particularly serious offence
- the suspect having previous convictions for similar offences
- reasons to believe the suspect could leave the court's jurisdiction to avoid its trial and possible punishment
- reasons to believe the suspect may destroy evidence or interfere with witnessWitnessA witness is someone who has firsthand knowledge about an event, or in the criminal justice systems usually a crime, through his or her senses and can help certify important considerations about the crime or event. A witness who has seen the event first hand is known as an eyewitness...
es - the suspect is likely to commit further offences before the trial
- the suspect is believed to be in danger from accomplices, victims, or vigilantes
In most countries, remand prisoners are considered innocent until proven guilty by a court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
and may be granted greater privileges than sentenced prisoners, such as:
- wearing own clothes rather than prison uniform
- voting in electionElectionAn election is a formal decision-making process by which a population chooses an individual to hold public office. Elections have been the usual mechanism by which modern representative democracy operates since the 17th century. Elections may fill offices in the legislature, sometimes in the...
s - being entitled to additional visiting hours per week
- not being required to complete prison-related work or education
Not all remand prisons grant these privileges, in particular, remand prisoners are often forced to wear prison uniforms and denied additional visitation rights, supposedly for safety reasons. Often they are denied all visits and all newspaper and media access, for risk of interfering with the investigation, such as communicating a story with fellow remand prisoners.
The Eighth Amendment to the United States Constitution
Eighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...
prohibits excessive bail
Excessive bail
The Excessive Bail Clause of the Eighth Amendment to the United States Constitution prohibits excessive bail set in pre-trial detention.The Clause was drafted in response to the perceived excessiveness of bail in England. Excessive bail was also prohibited by the English Bill of Rights...
. Under the US Code, pretrial detention of federal suspects is only allowed under certain circumstances, such as when the defendant is a danger to witnesses or jurors.
See also
- Law enforcement agency powersLaw enforcement agency powersA law enforcement agency has powers, which other government subjects do not, to enable the LEA to undertake its responsibilities. These powers are generally in one of six forms:*Exemptions from laws...
- Powers of the police in England and WalesPowers of the police in England and WalesThe powers of the police in England and Wales are defined largely by statute law, with the main sources of power being the Police and Criminal Evidence Act 1984 and the Police Act 1996. This article covers the powers of territorial police forces only. In law, police powers are given to...
- Nightwalker StatuteNightwalker StatuteNightwalker statutes were English statutes, in the era before modern policing, allowing or requiring night watchmen to arrest those found on the city streets and hold them until morning...