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The Punitive Nature of Pre‐Trial Detention: Perspectives of Detainees in Hong Kong
Author(s) -
CHENG KEVIN KWOKYIN,
LEUNG BECKY POYEE
Publication year - 2019
Publication title -
the howard journal of crime and justice
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.462
H-Index - 7
eISSN - 2059-1101
pISSN - 2059-1098
DOI - 10.1111/hojo.12293
Subject(s) - punitive damages , punishment (psychology) , presumption of innocence , criminology , restorative justice , retributive justice , preventive detention , law , immigration detention , presumption , psychology , criminal justice , political science , economic justice , social psychology , human rights
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.