For many fo you, the title is probably really confusing but alas, that’s why a post isn’t just its title. Amirite?
Well, lets break a few things down. The title is in reference to a very popular Netflix docu-series called Making A Murderer. The story follows a real life criminal case of a man who was convicted once of a sexual assault he did not commit (was released from jail after serving 18 years of his sentence) and then later convicted of a murder he claims he did not commit. The docu-series discusses police corruption, inadequate police procedures, and what looks like just an all together poor administration of justice. Although tread lightly, the show only depicts one narrative of what happened on a fateful day however many years ago. The point is, when people think of Making A Murderer they either think 1) an innocent man behind bars or 2) a guilty man right where he needs to be. Well, for the sake of this post I’m going with point #1. Now the second part of the title refers to a procedure in criminal justice of holding an accused person behind bars to await their trial, in plain English this is called pre-trial detention.
One important thing to note about pre-trial detention is that accused people are held in prison while they await their trial. In other words, these people who are waiting in jail are not guilty since the verdict hasm’t been made on these people. They are legally innocent, until they go to trial and are proven guilty. In fact in Canada, there are more innocent people in provincial prisons than guilty people. Yes. You read that right. There are more legally innocent people in prison awaiting their trial than there are guilty people serving a sentence, in provincial prisons. Hey, I don’t make this stuff up.
How can that be? Is that really possible? Unfortunately, reports show this to be true. But why? How can we possibly think that housing more innocent people is appropriate? Well for starters, not many people actually know that. Secondly, Canadian legislative amendments are only making it easier for people to end up in pre-trial detention. Let’s discuss shall we?
There are a few main reasons why accused (legally innocent) people are held in pre-trial detention. They may either be described as a flight risk in which the Judge or Crown believes that the accused may not attend court (their bail hearing, trial, or whatever else). They may also be described as dangerous and housing them is the best option to keep the community safe. Now those are the most important legal reasons. There is of course the issue of bail. An accused may not have the sum of money that the Judge or Crown is asking from them, meaning they’re staying in prison because they cannot afford to be out in the free world. Additionally, in Canada, accused people can’t post their own bail, they need a surety, someone who will post the bail for the accused. Let us not forget the added factor of administrative offences. Oh you know, acts made illegal while on bail, probation, parole, conditional release, that are either wise not illegal to the rest of the population. For example, I walk outside my home at 10:00 at night and I’m in my right to do so. However, an accused person out on bail with the condition of curfew by 6:00pm does not have the same liberty I do. In fact, if that person were to be found out and about at 10:00 at night, they’d be arrested.
But y’know, who cares? I mean, the judicial system has a process, right? If you don’t like it then tough cookies, right? Well… here’s the problem… Accused people who are held in pre-trial detention (also referred to as remand) are often seen as “more guilty” than accused people on bail, out and about, enjoying their liberties. This means that marginalized and impoverished communities suffer a great deal. They are associated with greater criminality, they spend more time in conditions as grotesque as prison, and the whole world stigmatizes them for it. But the kicker is that, they’re more likely to get a guilty verdict on the basis of being in pre-trial detention. Now how is that fair?
All these innocent people in prison for crimes they haven’t (allegedly) done, at a greater likelihood of getting convicted for these crimes because they’re behind bars (among other things).
Surely, there is a better way to handle this?