This paper provides an understanding of the current state of preventive detention in the Philippines. Currently, the Philippines has one of the highest prevalence of the use of preventive detention in the world where 75 percent of the prison population are detainees undergoing trial (World Prison Brief, 2018). The Philippines also has one of the longest paces of litigation (Hunter, 2002), where accused detainees could stay in jail undergoing trial for unacceptable lengths (Narag, 2017; 2018a). This prolonged preventive detention translates to a host of negative legal, economic, social, and humanitarian problems. Research in other jurisdictions suggests that when preventively detained, detainees are deprived of their right to obtain adequate legal defense, they lose financial productivity while in jail, they drain precious government resources, and, upon release, they become more cynical of the criminal justice system (Dobbie, Goldin & Young, 2018; Foote, 1954; Open Society Foundation & United Nations Development Program, 2011; Williams, 2003). Preventive detention and its unreasonable length also translate to jail overcrowding (Hafetz, 2002; Hall, 1987) and can lead to violence and higher rates of recidivism that ultimately lead to heightened problems of public insecurity (Lowenkamp, VanNostrand & Holsinger, 2013; Sacks & Ackerman, 2012; Tartaro, 2002).
Cognizant of these potential consequences, executive, legislative, and judicial actions had been initiated in the Philippines to provide alternatives to preventive detention. These include the use of bail, corporate surety bond, property bond, and Release on Recognizance (ROR). In some cases, hospital and house arrest are also allowed. There are also multiple efforts to hasten trial proceedings such as the promulgation of the Rules of Summary Procedures, the observation of time limits, and improved case management through the creation of the Supreme Court’s Task Force Katarungan at Kalayaan (TFKK). Yet, even with these initiatives, the use of preventive detention and its consequent jail overcrowding continue to increase (World Prison Brief, 2018).
This paper aims to understand the status quo regarding the use of preventive detention. First, this paper provides an overview of the legal bases for the current alternatives to preventive detention and documents bottlenecks that lead to the non-maximization or non-utilization of these available alternatives. Second, this paper also considers other alternatives that have been considered, and the reasons that they were discarded, if any.
This paper utilizes a combination of data collection techniques and data sources. First, this paper utilizes face-to-face interviews, focus group discussions, and surveys (email and online) to elicit firsthand accounts on the dynamics and bottlenecks in the implementation of bail and other alternatives to preventive detention. A total of 346 individuals, selected through purposive and snowball sampling, who are either court actors (judges, prosecutors and defense lawyers), jail officers, probation officers, police officers, Non-Governmental Organization (NGO) volunteers, detainees, and detainee family members, participated in this research.
Second, this paper uses secondary jail data to estimate the prevalence of preventive detention, length of time in detention, and manner of release through alternatives to preventive detention.
Finally, this paper also utilizes desk research of existing and proposed legislation, judicial rules, and administrative manuals to understand efforts to address preventive detention. Findings suggest that there are legal, political, economic, organizational and cultural factors that contribute to the non-implementation of the alternatives to preventive detention. First, the alternatives are not readily accessible due to criteria and limitations imposed by law. For example, detainees charged with capital offenses, and those considered as recidivists, quasi-recidivists, and habitual delinquents might not be qualified to avail of bail and ROR. Specifically, the Philippine Constitution provides that persons “charged with offenses punishable by reclusion perpetua when evidence of guilt is strong” may be denied bail. This results in the immediate detention of persons charged with capital offenses as the prosecutors would not recommend any bail amount for their temporary release. The accused may only be released on bail if they file petitions for bail and the prosecutor fail to prove that there is strong evidence of guilt against them. In practice, prosecutors and police officers also tend to over-use this constitutional provision through a process called “over-charging” where they file nonbailable offenses, instead of bailable offenses (example murder instead of homicide) to keep the accused detained after arrest.
Second, majority of the accused are not aware of the availability of the legal remedies such as bail, reduction of bail, and recognizance. The lack of knowledge leads to the failure of the accused to ask their lawyers to invoke these rights court.
Third, even if they knew and/or qualified to avail of such alternatives, accused and their families report difficulty in providing documentary, financial, and other types of requirements. Most accused cannot produce the amount of bail. Additionally, most accused report difficulty in showing proof of indigency, producing photo identification, proving medical status, securing the services of custodians (specifically for ROR), and other pertinent requirements. They are also unfamiliar with the different procedures required by the various agencies, such as a resolution from the City or Municipal Councils in motions for ROR.
Fourth, due to extreme workload faced by the different actors, there are difficulties in coordination and communication among different agencies despite numerous efforts towards integration of case management. Public defense lawyers rarely visit detention centers to confer with their clients precluding them to understand their clients’ legal conditions. Jail paralegal officers are inundated with custodial tasks limiting their ability to monitor the detainees’ excessive length of preventive detention. Thus, these agencies seldom inform the courts about the status and conditions of the accused while in detention. Without the necessary motions, on the other hand, the courts are not able to take appropriate corrective actions.
Fifth, there is general reluctance to release the accused for fear of non-appearance in court and the commission of new offenses. There are currently no mechanisms to supervise and monitor accused released on bail. Though it is difficult to gather statistical information on the percentage of accused who jumped bail and committed new offenses while out on bail, this nevertheless fuels decisions to deny bail and/or to impose prohibitive amount of bail.
Finally, there are no adult diversion programs entertained by the police, prosecutors, and judges. Diversion programs allow accused to participate in therapeutic programs, such as drug treatment, and successful completion of the program entails dropping of charges. There is currently no legislation, administrative guideline, or Court circular that allow for adult diversion programs.
To address these issues, the following are recommended. First, there must be efforts to educate the detainees and their families about the existing alternatives to preventive detention. Government agencies such as the Public Attorney’s Office (PAO) and the Bureau of Jail Management and Penology (BJMP) should launch information drives about the existing alternatives to preventive detention such as the filing of petitions for bail and motions to reduce bail bond. These agencies should also develop programs that instruct how the detainees and their families navigate through the process of posting cash, property and surety bonds, and avail of ROR. NGOs conducting regular visitations in the detention centers can also be tapped by the PAO and the BJMP for this purpose.
For its part, the Supreme Court may issue guidelines on the criteria and procedures in the application for bail based on humanitarian grounds, and for house and hospital arrests. The Supreme Court can likewise clarify the extent in which judges can reduce the amount of bail over and beyond what is recommended by the prosecutors, and explore the possibility of using length of detention as an indicator of indigency.
Second, the ROR Law must be maximized. The Court, PAO, BJMP, and Local Government Units must be able to develop their respective “pool of custodians” who can serve as guarantors for the released detainees. No agency had taken the initiative to develop this “pool of custodians” making this law ineffective. Specific provisions of this law, such as requiring the issuance of Municipal or City resolutions, restricting those who can serve as custodians, and penalizing the custodians when accused fail to appear in court, should be reviewed, and repealed if necessary.
Third, the different agencies must coordinate in determining the legal status and health conditions of the detainees. There must be a way to monitor the length of detention of the detainees. This information should be regularly shared with judges, PAO lawyers, and prosecutors. This will identify detainees who had served their minimum and maximum penalties, and which can trigger corrective actions for detainees whose rights to speedy trial had been violated. There must be concerted efforts to release detainees who had met the threshold set forth by the TFKK (six months for cases pending before the Municipal Trial Courts and three years for those before Regional Trial Courts) regardless of the causes of delay. There must also be a mechanism to determine the age and health conditions of the detainees. The BJMP health officers should be able to regularly update the judges, prosecutors, and PAO lawyers on detainees who have failing health conditions. This information may help the court and lawyers to assess the possibility of releasing the accused on bail for humanitarian grounds or placing them on house or hospital arrest.
Fourth, there must be mechanisms to develop supervised release programs. Accused released on bail but with elevated risk of non-appearance in court and of committing a new offense may be released under supervision of the barangay, police, probation office, or a reputable NGO. The Courts may explore the use of objective scoring criteria, such as the Risk-Needs-Responsivity principles used in other jurisdictions to determine risk levels. The courts may coordinate with the Parole and Probation Office in determining risk levels.
Finally, there must be mechanisms to develop diversion programs that can be implemented by the police, prosecutors, and judges. These agencies can coordinate with the LGUs, NGOs, and other service providers within their respective communities in implementing the diversion programs. A legislation or Supreme Court circular may be necessary for this purpose.
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