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January 07, 2019

Detention Procedure Assessment Tool Factors

Section I. Considerations at All Stages of Detention

Factor 1. Due Process

Persons who have been deprived of liberty, including persons who have been remanded into custody, are entitled to full due process rights, including a right to review by a competent tribunal, a right to counsel and a right to participate effectively in their own defense.

Factor 2. Consistency and Fairness

The circumstances in which deprivation of liberty occurs and the procedures under which it is authorized are established in law. Discretionary decisions relating to deprivation of liberty are made by comparing the facts of the case to established criteria.

Factor 3. Resources

Adequate resources, whether financial, infrastructure, personnel or other, are allotted to both individuals and institutions involved in detention and sentencing, including alternatives thereto.

Factor 4. External and Undue Influence

Actors in the criminal justice system—including police, investigators and prosecutors; defense counsel; judges and court personnel; and corrections staff—pursue their functions free from undue influence.

Factor 5. Victim Involvement

Victims are kept adequately informed of the progress and outcome of detention and sentencing decisions. The impact on victims of the offense and the detainee’s release are considered when making decisions regarding detention and sentencing.

Factor 6. Special Considerations for Juveniles

The criminal justice system upholds the unique rights and safety needs of juveniles and promotes their physical and mental well-being, with alternatives to detention or imprisonment given priority consideration.

Factor 7. Special Considerations for Vulnerable Adult Populations

Detainees who are members of vulnerable adult populations, including but not limited to foreign citizens, persons with a physical or mental disability or illness, women and sexual minorities, have the right to be treated non-discriminatorily and to benefit from special measures that may be necessary for their protection. Persons seeking refugee status or asylum shall not be penalized solely for entering a country illegally and may be only detained when necessary to establish identity, verify claims or protect national security, and subject to judicial and administrative review.

Section II. Imposition of Detention at the Pretrial Stage

Factor 8. Initial Deprivation of Liberty

The taking into custody of a person suspected of a crime is based upon an arrest warrant issued by a detached and neutral judicial officer, except in extraordinary circumstances where obtaining an arrest warrant is not feasible and there are reasonable grounds to believe the arrestee has committed an offense. Arrests are made for the purpose of bringing the arrestee before a competent legal authority, and due consideration is given to alternatives to arrest.

Factor 9. Detention prior to Initial Review

Following initial deprivation of liberty, an arrestee is brought promptly before a judicial authority to determine whether detention should continue. Prior to being brought before the judicial authority, an arrestee has the right to be notified of the nature of the charges or accusations against him, as well as of his right to counsel, against self-incrimination and to notify family members or, in the case of a foreign national, his consulate, of his arrest.

Factor 10. Oversight of Initial and Investigative Detention

A judicial authority determines whether detention should continue pending trial. A full record of the circumstances of detention is taken and made available to the arrestee, his counsel and the competent authorities. A competent authority adequately supervises the detention practices of actors in the criminal justice system.

Factor 11. Detention during the Adjudicative Process

Pretrial detention is used only when necessary in the interests of justice and after consideration of other options for ensuring the accused’s appearance at trial. Individuals detained during the adjudicative process are tried within a reasonable time or released pending trial. Reasons are given for judicial decisions resulting in or continuing detention.

Section III. Mechanisms for Challenging Pretrial Detention

Factor 12. Extraordinary Remedies

Legal mechanisms are available for a person who has been deprived of liberty prior to conviction of a crime, including a person who has been remanded into custody, to speedily challenge the lawfulness of his confinement before a judicial authority competent to order his release.

Factor 13. Appeal of a Decision Imposing Pretrial Detention

Detainees have the right to have a decision imposing pretrial detention reviewed by a higher tribunal.

Factor 14. Guaranteed Periodic Review of Detention

Decisions imposing pretrial detention are periodically reviewed by a judicial authority.

Section IV. Imposition of a Sentence of Incarceration

Factor 15. Procedures at the Penalty Phase

Persons convicted of a crime are sentenced by a judge and have the opportunity to present additional evidence and arguments regarding sentencing. In determining the sentence, the judge takes account of relevant information on the convicted person’s background as well as the nature of his crime. Sentences are imposed in open court with the convicted person present and the judge clearly states the reasons for and terms of the sentence.

Factor 16. Factors Considered in Imposing a Penalty

Deprivation of liberty is regarded as a sanction of last resort. The sentencing authority takes into account the rehabilitation of the offender, the protection of society, the interests of the victim, the time the offender spent on remand and any aggravating or mitigating factors in imposing a penalty. Similarly situated defendants receive similar sanctions.

Factor 17. Alternatives to Immediate Incarceration

There exist a range of non-incarcerative measures prescribed by law and imposed based on an assessment of established criteria concerning the nature and gravity of the offense, the personality and background of the offender, the purposes of sentencing and the interests of victims.

Factor 18. Implementation and Monitoring of Non-Incarcerative Dispositions

Non-incarcerative dispositions are effectively implemented and monitored by supervisory authorities established in law. The sentencing authority is notified of significant failures to comply with the conditions of non-incarcerative dispositions.

Factor 19. Revocation of Non-Incarcerative Dispositions

Non-incarcerative dispositions are only revoked and replaced by incarceration by the sentencing authority for significant violations, in the absence of suitable alternatives and after affording the offender his due process rights.

Section V. Mechanisms for Challenging a Sentence of Incarceration

Factor 20.  Extraordinary Remedies

Legal mechanisms are available for a person sentenced to incarceration or otherwise deprived of liberty following conviction of a crime to challenge the lawfulness of his confinement before a judicial authority, either within the conviction and appeals process itself or as a separate legal action.

Factor 21. Appeal of a Sentence of Incarceration

Persons sentenced to incarceration have a right to review of the factual and legal basis for the imposition of a sentence, including the revocation of non-incarcerative measures, before a higher judicial body.

Factor 22. Executive Clemency

Persons convicted of a crime have the opportunity to request clemency, pardon, amnesty or commutation of sentence. Executive clemency is not used as a substitute for parole, probation or other alternatives to confinement.

Section VI. Detention Practices

Factor 23. Procedures during Confinement

Different categories of persons deprived of liberty are kept in separate institutions or parts thereof. Solitary confinement is forbidden or its use is extremely limited.

Factor 24. Mechanisms for Complaints

Mechanisms exist for persons deprived of liberty to seek remedies for mistreatment and other abuses, both within the institution where they are confined and through the judicial system.

Factor 25: Personnel and Staffing Procedures

Prison administrators take great care in hiring well-qualified employees, and also provide specialists in medicine, religion and other fields to accommodate the needs of detainees.

Section VII. Parole and Early Release

Factor 26. Structure of the Parole System

A legal framework for conditional release or parole exists, including mechanisms for the supervision of parolees and is used to move incarcerated persons to a noncustodial environment at the earliest possible stage.

Factor 27. Decision to Grant or Deny Parole

Decisions granting or denying parole, as well as imposing or modifying conditions and measures attached to it, are made by authorities established by law in accordance with procedural safeguards.

Factor 28. Implementation and Monitoring of Parole

Parole is effectively implemented and monitored by competent agencies specified in law with the nature, duration and intensity of supervision adaptable to each individual case. Parolees are notified of the conditions of parole and the consequences of noncompliance. Monitoring agencies notify the competent authority of significant failures to comply with the conditions of parole.

Factor 29. Revocation of Parole

Parole is only revoked by the competent authority in the absence of suitable alternatives and only while affording the convicted person procedural safeguards.