Remand
From Wikipedia, the free encyclopedia
Remand is a legal term which has two related but distinct usages. Its etymology is from the Latin re- and mandare, literally "to order." It evolved in Late Latin to remandare, or "to send back word." It appears in Middle French as remander and in Middle English as remaunden, both with essentially the same meaning, "to send back." [1]
Contents |
[edit] Action by a court of appeal
The first common legal usage describes an action by an appellate court in which it remands, or sends back, a case to the trial court or lower appellate court for action. For example, if the trial judge committed a procedural error, failed to admit evidence or witnesses which the appellate court ruled should have been admitted, or ruled improperly on a litigant's motion, the appellate court may send the case back to the lower court for retrial or other action. [2]
A case is said to be "remanded" when the superior court returns or sends back the case to the lower court. Also, a court may be said to retry the case "on remand."
The remand has options. It may be a full remand, essentially ordering an entirely new trial; it may be "with instructions" specifying, for example, that the lower court must consider certain alternatives or evidence not entertained at trial; or it may be a partial remand as when an appellate court affirms a conviction while directing the lower court to revisit the sentencing phase. When the appellate court concludes that the lower court's decision was not only wrong but prevented the lower court from reaching issues that must now be considered, it will usually remand the case to the lower court to consider those issues in the first instance rather than deciding them at the appellate level; when this action is taken, the appellate court will say that the lower court's decision is "reversed and remanded."
A variation on this usage occurs in the United States federal courts. When a civil case is filed in a state court in the United States, the defendant may, under certain circumstances, move the case to the local federal district court (this act is referred to as "removal"). The state court has no say in this decision, but if the federal court decides that the case was not one in which removal was permissible, it sends the case back to state court, and this action is termed a "remand." This use of "remand" is distinct from the meaning above, however, in that the federal court is not an appellate court above the state court, and in that this kind of remand does not imply that the state court did anything erroneous (since the decision whether removal is appropriate is not one over which the state court had any control in the first instance).
[edit] Action at arrest or arraignment
The second usage relates to the imprisonment of criminal suspects awaiting trial or sentencing. A prisoner who is denied, refused or unable to meet the conditions of bail, or who is unable to post bail, may be held in a prison on remand.
Reasons for being held in custody on remand vary depending on the local legal system, but may include:
- the suspect has been accused of carrying out a particularly serious offence
- the suspect having previous convictions for similar offences
- reasons to believe the suspect could leave the court's jurisdiction to avoid its trial and possible punishment
- reasons to believe the suspect may destroy evidence or interfere with witnesses
- the suspect is likely to commit further offences before the trial
- the suspect is believed to be in danger from accomplices, victims, or vigilantes
In most countries, remand prisoners are considered innocent until proven guilty by a court and may be granted greater privileges than sentenced prisoners, such as:
- wearing own clothes rather than prison uniform
- voting in elections
- being entitled to additional visiting hours per week
- not being required to complete prison-related work or education
Although remanded prisoners are usually detained separately from sentenced prisoners, due to prison overcrowding they are sometimes held in a shared accommodation with sentenced prisoners.
Remand can cause hardship and thus be a punishment for suspects. This can be quite difficult on those that have not been previously convicted of any crime and have not yet been proven guilty on the current case as it appears as though they are not "innocent until proven guilty."
[edit] Criticism
In the United States and Canada, more than half of persons currently incarcerated are remand prisoners, generally awaiting trial. Most face modest demands for bail that they simply don't have the resources to raise. The burden falls heavier on poor defendants, and as a result disproportionately on groups like African-Americans, Hispanics, and Native Americans. In many cases, defendants face a lesser criminal penalty for a conviction than they actually spend awaiting their trial date. In the United States, the most common sentence handed out for a guilty verdict is now "time served". In Canada, the practice of crediting the defendant with two days against sentence for every one day spent in pre-trial custody has arisen. However, in both cases, this practice tends to deny the prisoner the opportunity for parole (which is often available to prisoners who have served at least one-third of their custodial sentence), though Statutory Release is still granted, under the law, after a prisoner has served two-thirds of their sentence. The release is nearly always to a half-way house of some kind, to facilitate the reintegration of the offender back into society.
In addition, remand facilities are often run at the municipal level. They tend to be much older facilities than penitentiaries or reformatories, and many date back to the 19th century. Many are overcrowded and are subject to a high degree of turnover. Prisons like New York City's Rikers Island and Toronto's Don Jail have become as notorious as high security prisons for violence.
Additionally, remand prisons often find themselves home to the mentally ill, as mental health facilities are closed.
