One in five people jailed in the European Union hasn't been convicted of a crime. Studies suggest that pretrial detention is unnecessary in most cases.
The 19-year-old brought before a Berlin district court in April 2021 was accused of stealing two bottles of La Vie est Belle perfume from Lancome. At the time of his arrest, he was dealing with an addiction to crystal meth and sleeping in train stations throughout Berlin. Because of his homelessness and substance abuse, the magistrate ordered that he be kept in jail until his trial — to ensure that the court would know where to find him.
Variations of this case, as described by the lawyer and journalist Ronen Steinke in his book "Vor dem Gesetz sind nicht alle gleich" (All Are Not Equal Before the Law), happen thousands of times per year in Germany. About 27,500 people were detained pretrial in Germany in 2020, roughly 3% of all people charged with crimes. That meant that in January 2021, for example, 12,000 of the 60,000 people in German prisons were not serving a final sentence, effectively locked up while presumed innocent.
In many EU countries, the proportion of people in prisons and jails before trial is even higher than in Germany. Across the European Union, about 100,000 people are currently being held in pretrial detention, which can range on average from a few months to over a year depending on the country.
Most in pretrial detention accused of minor crimes
There is often a clear pattern to who gets locked up before trial. Though foreign nationals make up just 12% of the general prison population in Germany, according to federal statistics, they represent 60% of people held in pretrial detention. Most people in remand custody are unemployed, and about half were experiencing homelessness at the time of their arrest, one study found.
Over one-third of people held in pretrial detention across Germany are accused of minor crimes such as petty theft or shoplifting. "Usually, they'll steal some combination of a bottle of booze, coffee or an energy drink, and meat salad or sardines," said Christine Morgenstern, a professor of criminal law and gender studies at the Free University of Berlin, who wrote her postdoctoral thesis on pretrial detention in Europe.
Though data is sparse, research suggests that this isn't just a German issue. "We've found a similar pattern in other European countries we studied," Morgenstern said, "even ones with more liberal policies."
In deciding whether to detain people ahead of trials, judges must assess whether the person might tamper with evidence, intimidate witnesses or, most importantly, flee prosecution if released. In 95% of cases in Germany in which pretrial detention was ordered, judges cited flight risk as the main reason.
In theory, judges should make this decision based on the concrete evidence in each individual case. The reality is often different, criminal defense lawyer Lara Wolf said: "We're locking up people based on feelings, assumptions, personal theories." Her doctoral thesis — one of the few empirical studies into flight risk in Germany and the European Union — investigates which individual factors might determine whether someone flees prosecution.
Judges more likely to lock up marginalized people
In the absence of evidence, Wolf's thesis finds, judges form their own theories based on personal experiences and preconceptions. Legal reference works and interviews with judges show that contacts abroad, for example, are generally deemed a factor for increased flight risk, as are homelessness, unemployment and a lack of formal education. A steady job, good education and personal ties are interpreted as decreasing flight risk. Into the late 1980s, some judges advised that homosexual relationships didn't decrease flight risk in the way that heterosexual ones did, as they were considered less committed. The result is that people from marginalized groups are much more likely to be detained before trial.
Wolf analyzed 169 cases throughout Germany in which judges assumed flight risk but the defendant was released for procedural reasons. "I was surprised just how clear the results were," she said. In all but 14 cases, defendants showed up for trial. A lawyer attempting to repeat the research in his own district found that only one defendant of 65 fled. "At this point, something is going so systematically wrong that the whole practice is simply unlawful," Wolf said. "I still find it shocking, the idea that we're locking people up based on feelings, on false assumptions that no one has ever checked."
Both the German Judges' Association and the Berlin Senate Department for Justice, Diversity and Anti-Discrimination declined to comment on the study's findings.
Pretrial detention is often harsher than prison sentences: People get locked up for 23 hours a day and have little contact with the outside world and little to pass the time. Reintegration measures such as paid prison labor and social programs aren't available to people presumed innocent, Morgenstern said. And that is in addition to the jarring experience of being ripped from one's life without a clear idea of what comes next. "It's a very uncomfortable, unstable, frightening personal situation," Morgenstern said.
Almost half the cases of people detained pretrial end without prison sentences
Pretrial detention is a situation that can drag on. About 80% of people held in remand spend more than three months locked up.
German law explicitly states that the time spent in detention before trial must be proportionate to the potential sentence. Time in custody also gets deducted from the final sentence.
But, in almost half of the cases, the trial ends without any prison time. Prosecution statistics show that about 30% of people in pretrial detention have their eventual prison sentences suspended for probation. Ten percent receive only fines, and another 7% are acquitted, sentenced to community service or rehabilitation programs, or have their charges dropped.
There are alternative measures that courts could take. EU legal systems already work together to try defendants in their home countries or extradite them for prosecution rather than locking them up on the spot, but, Morgenstern said, "those options are barely used."
Instead of pretrial detention, some advocate for electronic monitoring of defendants in their homes when possible, a practice common in Italy and Belgium. But Morgenstern said house arrest had not reduced the number of people within the carceral system. "In Belgium, for example, they use these alternatives quite a lot, but then still detain the same number of people," she said. "We call that net widening. When that happens, not much is won in terms of freedom rights."
Reducing pretrial detention could reduce overcrowding
With high numbers of people locked up, pretrial detention also contributes massively to prison overcrowding. Nearly one in three EU countries have more people incarcerated than their official prison capacities allow. This is particularly problematic during the pandemic: Cramped quarters and poor hygiene conditions make prisons an ideal breeding ground for illnesses such as the coronavirus, a DW investigation showed.
If all pretrial detainees were released, almost all EU countries would solve their overcrowding problem instantly. And, though pretrial detention may remain necessary in some cases, reducing the practice would provide some relief to overburdened prisons — and the people incarcerated within them.