Alternatives to Pretrial Detention

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.

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