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The Weekly Abolitionist: Pretrial Detention as a Human Rights Crisis

A new report from the Open Society Justice Initiative documents the overuse of pretrial detention around the globe. The report estimates that around 3.3 million people are currently incarcerated awaiting trial. These people have yet to be convicted of any crime, yet they are locked in cages and subjected to brutal human rights abuses. Martin Schoenteich writes that “Compared to sentenced prisoners, pretrial detainees often enjoy less access to food, adequate beds, health care, or exercise. Infectious diseases — HIV/AIDS, hepatitis, and tuberculosis — are common. According to the World Health Organization, suicide rates among pretrial detainees are three times those of convicted prisoners.” In addition to undermining due process and prisoners’ rights, pretrial detention also undermines proportionality, because “many defendants spend more time behind bars awaiting trial than the maximum sentence they would receive if eventually convicted.”

This injustice primarily impacts the poor. The key ways to being released from pretrial detention are hiring an attorney, paying bail, or bribing officials. Naturally, the poor have the least access to these options. There are also racist impacts from pretrial detention. As Schoenteich notes, “Ethnic minorities are also disproportionately represented in pretrial detainee populations around the world — Dalits in India, African Americans in the United States, Aboriginal people in Australia.” The report also notes that individuals with mental illnesses and cognitive disabilities are more likely to be detained awaiting trial.

The Open Society report examines the problem globally. But when I think about pretrial detention, two specific cases come to mind: Chelsea Manning and Matthew Stewart.

Chelsea Manning is the heroic whistleblower who released classified evidence of war crimes and other US government misconduct to the journalistic organization WikiLeaks. Manning’s disclosures shed light on what McClatchy Newspapers called “evidence that U.S. troops executed at least 10 Iraqi civilians, including a woman in her 70s and a 5-month-old infant, then called in an airstrike to destroy the evidence.” The outrage caused by exposure of this brutal war crime helped end the U.S. occupation of Iraq. Manning’s disclosures revealed that Hillary Clinton ordered diplomats to spy on and commit identity theft against UN officials. Her disclosures also uncovered evidence related to child sexual abuse by US military contractors in Afghanistan. 

Were any of the criminals Manning exposed held accountable? Of course not. Instead, Chelsea Manning was held in pretrial detention for years before being convicted and sentenced to 35 years in prison, simply for releasing information. She was held in solitary confinement, a cruel form of psychological torture, throughout her detention. UN Special Rapporteur on Torture Juan Mendez investigated the conditions under which Manning was held and concluded “that the 11 months under conditions of solitary confinement… constitutes at a minimum cruel, inhuman and degrading treatment in violation of article 16 of the convention against torture. If the effects in regards to pain and suffering inflicted on Manning were more severe, they could constitute torture.” Moreover, there is some evidence that the torture was a bigoted response to Manning’s gender identity and expression. As Joanne McNeil reported in Jacobin,

Manning was tortured in part because he [sic] signed a few letters from the brig as “Breanna Elizabeth.” Marine Corps Master Sgt. Craig Blenis defended his cruelty in a December pre-trial hearing. Coombs asked why the marine thought Manning’s gender dysphoria should factor into his “prevention of Injury” status. Blenis answered because “that’s not normal, sir.”

In a sense, the pretrial torture of Chelsea Manning was not just a crime, it was a hate crime.

Matthew Stewart did not survive pretrial detention long enough to be convicted or acquitted. Late at night on January 4th, 2012, armed men broke into his home with guns blazing. Matthew, a startled gun owner and Iraq war veteran, fired back on the home invaders, killing one and wounding several others. But because they were police officers carrying out a drug raid, Matthew was not treated as a homeowner engaged in legitimate self-defense. Instead, he was locked up in the Weber County Jail and charged with murder. He was subjected to social isolation and other abuses for a year and a half before he eventually committed suicide. He was found in his cell hanging from a bedsheet. After his death, the degradation still didn’t end. Police officers trespassed in his home again even after he was dead and the state’s case against him was closed. Officer Jason Vanderwarf harassed Matthew’s grieving family members on Facebook, writing “now you all can feel our pain.” Vanderwarf was one of the initial aggressors, having lied on the initial search warrant and participated in the home invasion.

Pretrial detention is an appalling human rights abuse. Obviously, it undermines the right to due process and the presumption of innocence. It can be used to torture and brutalize detainees, especially political prisoners who have offended state functionaries, as Matthew Stewart and Chelsea Manning did. And pretrial detention is most often used to cage and abuse the most vulnerable in our society: the poor, ethnic minorities, and people with psychiatric and cognitive disabilities. Let’s end this injustice.

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