The Punitive Nature of Pre‐Trial Detention: Perspectives of Detainees in Hong Kong

Abstract

Pre‐trial detention plays an important, and often contentious, role in the criminal justice process. Legal theorists have gone to great lengths to distinguish between preventive detention and punishment with respect to pre‐trial detention, as it would violate the principle of retribution and the presumption of innocence if yet‐to‐be convicted defendants were subjected to punishment. Nonetheless, the experiences of detainees remains an understudied area. The purpose of this article is not to dispute whether pre‐trial detention is, or can be justified as, a form of punishment, but it is to show that pre‐trial detention, at least in the minds of detained defendants, is punitive. Drawing on interviews with a sample of previously‐detained defendants in Hong Kong, it is found that they experience censure (stigma) and hard treatment during their time in pre‐trial detention. Implications and recommendations are discussed.

Reflections from accused: Advice on navigating life on bail

“…The pretrial detention of people accused of a crime is a problem internationally (Bhandari, 2016; Cheung & Leung, 2019; Smith, 2021). On any given day, the proportion of people remanded in custody in Western nations accounts for anywhere between 10% and 40% of the total prison population (World Prison Brief, 2017).…”